Criminal Miscellaneous No.32489 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------ Atin Kumar Chowdhury, Son of Shri Asit Kumar Chowdhury, C/O Rama Rani Sari Pvt. Ltd., 135, B.R.B.Road, Ground Floor, Canning Street, P.S. Bara Bazar, Calcutta-7 ---------Petitioner Versus 1. THE STATE OF BIHAR 2. Shri Dilip Kumar Sinha, Son of Late Madan Mohan Lal, resident of Mohalla- Sidharathpuri Colony, Near Jagjivan College, P.S. Mofassil, Gaya ----------------- Opp.Parties. --------- For the petitioner: Mr. A.Amanullah, Advocate For the State : Mr. B.P.Singh, A.P.P. ----------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 1.9.1998 passed by Sri G.S.R. Tripathi, Judicial Magistrate, 1st Class, Gaya in Complaint Case No.344 of 1998, whereby the learned Magistrate has taken cognizance of offences under Section 420 and 406 of the Indian Penal Code against the petitioner and others. The petitioner has also prayed for quashing of the entire proceeding against him in Complaint Case No.344 of 1998. 2. After filing of the present petition, a supplementary affidavit was filed on behalf of the petitioner clarifying the position that the complaint case was transferred under Section 192 (1) of the Code of Criminal Procedure by order dated 30.6.1998 passed by the learned Chief Judicial Magistrate, Gaya for disposal to the file of Sri 2 G.S.R. Tripathi, 1st Class, Gaya. The transferry court after recording statement of complainant on S.A. and conducting enquiry under Section 202 of the Code of Criminal Procedure, took cognizance of the offence by its order dated 1.9.1998, specifically against Sri Niwas Mundra, Sri Bal Krishna Bhattar and Shri Krishna Mahto . It was further clarified in the supplementary affidavit that despite the fact that by order dated 1.9. 1998 cognizance order was not passed for the offence against this petitioner and one another accused, the learned Magistrate erroneously proceeded against all the accused persons even against the petitioner. 3. Short fact of the case is that Opp.Party no.2, Sri Dilip Kumar Sinha filed a complaint petition, which was registered as Complaint Case No.344 of 1998. In the complaint petition, the complainant disclosed that he was a business man and dealing in clothes in the Gaya District and in course of aforesaid business, the complainant used to purchase clothes from different manufacturers of India. The manufacturers used to send their agents to collect order from different dealers. It was alleged that all the five accused persons, whose names find place in Annexure-1 to the petition, were agents of different cloth manufacturing Companies. It was specifically asserted in paragraph 3 of the petition that on 6.9.1997 all the accused persons came together in the shop of the complainant at about 11.00 A.M. and displayed various samples of textiles and the complainant in good faith placed orders of textiles to all the five accused persons and he paid Rs.2000/-(two thousand) to all the 3 accused persons as advance in presence of witnesses. It was disclosed in the complaint petition that accused persons assured the complainant regarding delivery of goods within 15 to 20 days. As per the complainant, the accused persons never supplied the goods to the complainant despite the fact that he made several attempts through telephone and thereafter the complainant personally went to the places of accused persons and asked to return the advance amount, but the accused persons refused and threatened the complainant with dire consequences. On the aforesaid allegation, the complaint petition was filed. After filing the complaint petition, the complainant was examined on S.A. and after conducting enquiry, the learned Magistrate vide its order dated 1.9.1998 took cognizance of offences specifically against only three accused persons. However, as per clarification made by the petitioner through Supplementary affidavit, the Court proceeded against this petitioner also. 4. Aggrieved with the initiation of proceeding against the petitioner, he approached this Court by filing the present petition, which was admitted on 7.3.2000. While admitting, this Court directed that pending disposal of this application, further proceedings in Complaint Case No.344 of 1998 pending in the court of Sri G.S.R. Tripathi, Judicial Magistrate, 1st Class, Gaya so far petitioner is concerned shall remain stayed. The order of stay is still continuing. 5. Sri Amanullah , learned counsel appearing on behalf 4 of the petitioner submits that since in the present case , the learned Magistrate has taken cognizance of offences specifically against only three accused persons and order of cognizance does not indicate the name of the petitioner, the learned court below was not subsequently authorized to issue process against this petitioner. He further submits that in absence of order of cognizance, subsequent proceeding against the petitioner is liable to be set aside. Learned counsel for the petitioner besides raising technical objection also submits that the allegation made in the complaint petition is completely unbelievable and on this ground alone, the entire proceeding against the petitioner in Complaint Case No.344 of 1998 is liable to be quashed. 6. Sri Amanullah, learned counsel for the petitioner has referred to Annexure-1 to the present petition, i.e. a photo copy of the certified copy of complaint petition, and submits that it is not believable that five accused persons claiming to be representative of different business house can come to the complainant, who is resident of Gaya, on specific date and time and they can be equally advanced for supply of clothes. He further submits that the complainant himself had admitted that after he failed to contact the accused persons over telephone, he personally went to the accused persons for refund of advance amount of Rs.2000/- each from all the accused persons. The accused persons are residents of Calcutta. He further submits that there is not even a single chit of paper to show that the complainant had ever made payment of advance to the 5 petitioner or any of the accused persons. Only on oral evidence, without any corroborative material, the complainant had succeeded to initiate the proceeding in the case against the petitioner and others. On the ground of absence of order of cognizance and unbelievable story, the learned counsel for the petitioner has prayed for quashing of the entire proceeding against the petitioner. 7. I have also heard Sri B.P.Singh , learned Addl.Publice Prosecutor appearing on behalf of the State, who has opposed the prayer of the petitioner. 8. Besides hearing learned counsel for the parties, I have also perused the impugned order as well as complaint petition. From perusal of the impugned order, it appears that there is no ambiguity in the order of the learned Magistrate that while taking cognizance of offences he had not directed to proceed against the petitioner. The learned Magistrate in its order has specifically mentioned the names of three accused persons and has not mentioned the name of this petitioner in its order dated 1.9.1998.Meaning thereby that the learned Magistrate had not proceeded against the petitioner and, as such, at subsequent stage the learned court below was not required to proceed against the petitioner without taking cognizance of the offences against this petitioner. Moreover, the allegation made in the complaint petition appears to be doubtful and not believable. On examination of the complaint petition, I am of the view that the story developed in the complaint petition is not probable and on the ground of 6 improbability, it is necessary to interfere with the matter. It is difficult to comprehend that five accused persons being representative of different organization residing far away, i.e. in the State of West Bengal, can deceive the complainant at one time in Gaya. The story appears to be not believable It is on record that no cognizance order was passed for the offence committed by this petitioner. Accordingly, it is desirable to interfere at this stage and with a view to prevent the abuse of the process of the court, the entire proceeding against this petitioner in Complaint Case No.344 of 1998, pending in the court of Judicial Magistrate, 1st Class, Gaya, is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 24th June, 2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )