CRIMINAL MISCELLANEOUS No.24412 OF 2001 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- 1.SANJAY RUNGTA son of Ram Swarup Rungta 2.Ramabatar Kedia, son of late Sawali Ram Kedia. Sl. No.1, The Managing Director and Serial No.2, the General Manager, both of Rungta Irrigation Limited, a company duely been incorporated under the Companies Act, having its Registered and Head Office at 101, Pragati Tower, 26, Rajendra Palace, New Delhi, and Branch Office at Vikas Bhawan, Bariatu Road, P.S.-Lalpur, District.- Ranchi …… ……Petitioners Versus 1.STATE OF BIHAR 2.Satyendra Kumar Singh son of Sri Raghunandan Prasad Sinha, resident of village-Gabuspur, P.S.-Tharthari, Dist.-Nalanda, Proprietor of M/s Bhawani Agriculture Centre, Mohalla Ramchandrapur, P.S.-Laheri, Bihar Sharif, District- Nalanda. …… …….Opp.Parties ------ For the petitioners: Mr.Shailendra Kumar Sinha Mr.Raj Kumar. For the State : Mrs. Veena Kumari Jaiswal, A.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR -------- Rakesh Kumar,J. Two, petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 26.2.2001 passed by Shri Alok Kumar Sinha, Judicial Magistrate, Nalanda in Complaint Case No.822C of 2000, T.R. No.1329 of 2000. By the said order the learned Magistrate has taken cognizance of the offences under sections 420 and 406/34 of the Indian Penal Code against the accused persons including these two petitioners. 2. Short fact of the case is that opposite party no.2, who was a dealer of the petitioners-company i.e. Rungta Irrigation 2 Limited, filed a complaint on an allegation that the materials supplied by the petitioners-company after receipt of payment of huge amount were not up to the mark and not bearing ISI mark. It was alleged that since the materials were not up to the mark, the consumers after taking delivery of the product from the complainant did not make payment. It was further alleged that the petitioners had instituted a false case bearing Complaint Case No.371C of 1997 under section 138 of the Negotiable Instrument Act and under section 420 of the Indian Penal Code against the complainant and, as such, he suffered mental agony. The complaint was filed in the court of Chief Judicial Magistrate, Nalanda at Biharsharif on 19.9.1998 and the same was registered as Complaint Case No.775 of 1998. By order dated 22.9.1998 the complaint was referred to the police for its registration and investigation under section 156(3) of the Code of Criminal Procedure and, thereafter, first information report vide Laheri P.S. Case No.67 of 1999 was registered on 14.5.1999. While investigation was going on, the complainant apprehending that the police may not do justice filed a protest petition 12.7.1999 in the court of Chief Judicial Magistrate, Nawadah. Subsequently, on 4.12.1999 the police submitted final form. In the final form it was indicated that the case was untrue. After submission of final form, on 19.7.2000 final form was accepted and protest petition was treated as complaint case and it was registered as Complaint Case No.822C of 2000. After conducting enquiry and examination of two witnesses as enquiry witnesses the learned Magistrate by the 3 impugned order dated 26.2.2001 took cognizance of the offences under sections 420 and 406 of the Indian Penal Code against the accused persons including the petitioners. 3. Aggrieved with the order of cognizance, the petitioners approached this court by filing the present petition. This court on 28.1.2002 while directing for issuance of notice to opposite party no.2, directed that till the next date of hearing, further proceeding in Complaint Case No.822C of 2000 pending in the court of Sri Alok Kumar Sinha, Judicial Magistrate, Nalanda at Biharsharif, shall remain stayed. Despite issuance and service of notice at admission stage, the opposite party no.2 chosen not to appear and, as such, on 2.9.2004 the petition was admitted for hearing and fresh notice was issued to opposite party no.2 directing that during the pendency of this miscellaneous application, the interim order passed on 28.1.2002 shall continue. Even after service of notice at the hearing stage, opposite party no.2 preferred not to appear before this court either personally or through a counsel. 4. Mr. Shailendra Kumar Sinha, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, submits that the order of cognizance and the entire proceeding in the complaint case no.822C of 2000 is liable to be set aside solely on the ground of malicious prosecution. It was submitted that earlier opposite party no.2 had given cheques of huge amount to the petitioners-company for the purpose of delivery of articles and being dealer the goods were supplied to 4 opposite party no.2. However, the cheques were dishonoured when it was presented in the bank. On the allegation of commission of offences under section 138 of the Negotiable Instrument Act and section 420 of the Indian Penal Code, a complaint was filed against opposite party no.2 by the petitioners-company which was numbered as Complaint Case No. 371C of 1997. In the said complaint, the opposite party no.2 was put on trial and finally during regular trial he was held guilty for commission of offence under section 420 of the Indian Penal Code and he was convicted and sentenced to rigorous imprisonment for three years. Learned counsel for the petitioners has referred to annexure-10 to the petition which is a photo copy of certified copy of the judgment of conviction of opposite party no.2 passed by Sri S.S.Rao, Judicial Magistrate, Ist Class, Ranchi in Complaint Case No.371 of 1997/T.R. No.1087 2001. It was submitted that since for the offences as alleged in the judgment passed in Complaint Case No.371 of 1997, the opposite party no.2 was prosecuted, in retaliation opposite party no.2 filed a complaint which was numbered as Complaint Case No. 775 of 1998 and was referred to the police. The police, which is statutory investigating agency found the allegation untrue and, therefore, final form was submitted. After acceptance of final form, the protest petition was treated as complaint and on the basis of allegation made in the protest petition the learned Magistrate in a mechanical manner has passed the impugned order of cognizance. It was submitted that on the ground of malicious prosecution the order of cognizance and 5 Patna High Court The 19th August, 2010 Md.S./NAFR. the entire proceeding so far as petitioners are concerned in Complaint Case No.822C of 2000 is liable to be set aside. 5. In absence of any representation on behalf of opposite party no.2, I have heard Mrs.Veena Kumari Jaiswal, learned Addl. Public Prosecutor appearing on behalf of the State. She has opposed the prayer of the petitioners. 6. Besides hearing learned counsel for the parties, I have also perused the materials available on the record. The first complaint petition filed by opposite party no.2 had come to an end by investigating agency as untrue which is evident from annexure- 3 to the petition, which is final form submitted by the police on 4.12.1999 in Laheri P.S. Case No.67 of 1999. I have also perused the judgment of conviction of opposite party no.2 as well as contents of both the complaint and the protest petition. The court is of the opinion that the proceeding in the present case was initiated against both the petitioners maliciously and arbitrarily and on this ground alone the entire prosecution is liable to be set aside. 7. Accordingly, the order of cognizance dated 26.2.2001 passed by Alok Kumar Sinha, Judicial Magistrate, Nalanda at Biharsharif in Complaint Case No.822C of 2000/T.R. No.1329 of 2000 is hereby set aside and the petition stands allowed. (Rakesh Kumar,J.)