IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34574 of 2007 RAKESH KUMAR @ RAKESH KUMAR SINHA,SON OF SHRI KRISHNA KANT PRASAD, RESIDENT OF MOHALLA-PIRMANSOOR ROAD, BEHIND MODERN STUDIO, P.S. CIVIL LINES, DISTRICT-GAYA. ………………………………………………………………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. ANIL KUMAR SINGH, SON OF SHRI DASHRATH SINGH, RESIDENT OF NEW JAKKANPUR, BEHIND LAL KOTHI, NEAR LAXMI MARKET, P.S. JAKKANPUR, DISTRICT-PATNA. ……………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : Mr. Ashwini Kumar Singh, Advocate. For the State : Dr. Mayanand Jha, A.P.P. For O.P. No.2 : None. ------------ O R D E R 3. 19.11.2008. The petitioner, one of the arrayed accused of Complaint Case No.3026(C) of 2006, has prayed for the quashing of the order dated 9.1.2007 passed therein by Sri A.K. Singh, Judicial Magistrate, First Class, Patna, whereby he has taken cognizance of offences under Sections 406, 420, 120-B I.P.C. as also Section 138 of the Negotiable Instrument Act (hereinafter referred to as “the N.I. Act”) against the accused petitioner. One Anil Kumar Singh, the complainant, impleaded herein as O.P. No.2, filed the aforesaid complaint on 20.10.2006 inter alia alleging that accused Arun Kumar Singh along with Satyendra Narain Singh(a witness of the complainant) approached him several times to become a consignee agent of Helax Health Care whereupon he requested them to acquaint him with the concern and its products in - 2 - response whereto all the three arrayed accused along with witness Satyendra Narain Singh met the complainant in November, 2004 when accused Sheo Kumar Gupta assured about the quality of his products and requested the complainant to become a consignee agent of the concern for which a sum of Rs.3,50,000/- in three installments was required to be paid by way of security money. The three accused also assured an interest of 10% on the security deposit and a commission of 5% on all sales. The collection of dues from the market would be the responsibility of the concern. It was disclosed that Arun Kumar Singh as Zonal Sales Manager managed the concern’s branch “Helax Pharma” and goods depot “Sri Maa Traders” and was also the authorized signatory to operate the bank account of Sri Maa Traders. It is alleged that although the complainant insisted for a written agreement, Sheo Kumar Gupta, postponed it till the receipt of the first instalment of security money. The complainant further alleged of being cheated by the accused as notwithstanding his having deposited the security money in full the written agreement was never executed and even the minimum commission agreed to was not paid. When the complainant with the witness Satyendra insisted on the payment a settlement was arrived at whereunder the security amount of Rs.3,50,000/- with Rs.75,000/- against guaranteed commission was to be paid to the complainant and two post dated cheques for the same amount signed by Arun Kumar Singh in favour of the complainant’s firm were issued which on presentation were dishonoured of which information was given to the - 3 - accused persons on 20.7.2006. The accused allegedly requested the complainant to represent the cheques on 25.7.2006 and on such representation they were again dishonoured for want of sufficient funds the information whereof was given to the accused on 29.7.2006. Once again, on the request of the accused, the cheques were represented and again they were dishonoured and information was given to the accused on 17.8.2006. Legal notice was given to the accused on 6.9.2006 which were responded to by the accused except Arun Kumar Singh who refused to accept the notice. The submission on behalf of the petitioner is that none of the ingredients of any of the offences is attracted as far as the petitioner is concerned, In this connection, it was pointed out that the payments were admittedly made either in the name of Halex Health Care of which Sheo Kumar Gupta is the proprietor –cum-Director or in the name of Maa Traders of which Arun Kumar Singh is the proprietor and no payment was made by the petitioner. The cheques were given to the complainant by Arun Kumar Singh and the petitioner had not received the amount of security money. As such the petitioner was in no way responsible for either receiving the money or issuing the cheques. On this premise it has been submitted that the prosecution of the petitioner, in the facts and circumstances of the case, was an abuse of the process of the court. Although the complainant-O.P. No.2 appeared by filing a vakalatnama, he or his accredited counsel were conspicuous by their absence at the time of hearing. Curiously also no show cause or - 4 - counter affidavit has been filed by O.P. No.2. Hence the submission of the learned counsel for the petitioner remains unrebutted. From perusal of the complaint petition it is the admitted position that the petitioner had no role to play in either receiving the money or issuing the cheques. Apart from he along with others giving the assurances of the assured interest on the security money and commission on sales, no other role is attributed to the petitioner. In the circumstances he cannot be made liable for any of the offences whereunder cognizance has been taken. The prosecution of the petitioner would, in my opinion, amount to an abuse of the process of the court. Accordingly, the application is allowed and the impugned order so far as the petitioner is concerned, is hereby quashed. P.S. (Abhijit Sinha,J)