IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.12168 of 2003 BIJAY KUMAR @ BIJAY KUMAR SAXENA Versus STATE OF BIHAR & ANR ----------- 10 3 July 2008 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the O. P. no. 2. This application has been filed for quashing the order dated 31.7.2002 passed by Shri A. K. Dubey, Judicial Magistrate, 1st Class, Nalanda at Biharsharif in complaint case no. 208C/2002 corresponding to trial no. 522/2002 whereby and where under he has taken cognizance u/ss 404, 417, 418, 419, 506/34 of the Indian Penal Code against the petitioner. Shortly stated the case of complainant/ O. P. no.2 is that complainant and accused no.1 Surendra Prasad are full brothers. Their father Chandeshwar Ram was Post Man at Bodhi Bigha Post Office. He died in harness on 27.2.2000. The mother of complainant died prior to the death of his father in the year 1999 due to ailments. After death of their father the complainant and his full brother are equally entitled for appointment on compassionate ground. The allegation is that accused persons including the petitioner prepared a false affidavit on 4.4.2000 without the knowledge of the complainant and entire post retiral dues was withdrawn by them and not a single farthing was given to the complainant. On the basis of false affidavit accused Surendra Prasad obtained appointment on compassionate ground. The said affidavit was never signed by the complainant. The 2 petitioner Vijay Kumar, who is an advocate by profession, helped the accused in preparing the false affidavit. It appears that complainant was examined on S.A and during enquiry u/s 202 of the Cr. P. C three witnesses were examined and the learned Magistrate after being satisfied that there was sufficient materials for proceeding further against the accused persons u/ss 404, 417, 418, 419, 506/34 of the Penal Code issued summons against them. Learned counsel submitted that petitioner is an advocate practicing at Biharsharif. He submitted that only allegation against the petitioner is that he identified the alleged signature of O. P. no.2 on the affidavit. He submitted that petitioner is not a family member of the accused. He is not associated in any manner with the alleged dispute. The petitioner had identified only the signature on the affidavit. He pointed out that mere identification of any person on a document by an advocate would not constitute a criminal offence. Learned counsel for the O. P. no.2, on the other hand, opposed the application. Thus, the position is that the only allegation against the petitioner is that he identified the signature of the O. P. no.2 on the alleged affidavit. There is nothing to show that petitioner induced anybody to cheat the complainant. According to learned counsel the petitioner identified the deponent on the affidavit in good faith. Considering all the facts and circumstances, this court finds that on the basis of allegations no criminal offence as against the 3 petitioner is made out. This application is, accordingly, allowed and impugned order of cognizance dated 31.7.2002 as against the petitioner is hereby quashed. BKS (M. Saran,J.)