CRIMINAL MISCELLANIOUS No. 13538 OF 2004 ********** In the matter of an application under Section 482 of the Code of Criminal Procedure. ********** 1. SARAT KUMAR @ SHARAT JAIN S/O LATE DR.NARESHWAR PRASAD. 2. SMITA JAIN W/O SHARAT JAIN. --------------------------(Appellants) Versus 1. THE STATE OF BIHAR 2. KITPLY INDUSTRIES LTD. PATNA THROUGH ITS BRANCH MANAGER NAMELY NAVEEN KUMAR MALLIK, PATNA BRANCH, PATNA. -----------------------(Respondents) ************ For the Petitioner : Bashi S.R.P. Sinha Sr. Adv. with Lokesh Kumar Sing For State : Ansarul Itaque Addl. P.P. Opposite Party no. 2 : Sanjeev Kumar Adv. Sanjeet Kumar Adv. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The petitioners seek quashing of the entire proceedings including the order dated 11.3.2004 by which the Judicial Magistrate, Patna has taken cognizance in complaint case no. 629 (C) of 2003 for offences under Section 406 I.P.C. 2. On 25.11.2005 notices were issued to the opposite party no. 2 and thereafter on 28.2.2006 the matter was admitted for hearing. 3. Today both the parties are present in court and advance their rival contentions. 4. The case of the complainant is that the petitioners who happened to be the proprietor and partner respectively of Jain Glass and Hardware Store at Ara, were regular buyers of plywood from the shop of the petitioner but on 2.4.1996 even after delivery of materials worth Rs. 75,128.00, they did not make payment of the same. The complainant alleged that a total amount of Rs. 1,27,128.00 with interest calculated on the principal amount was due to the complainant. 5. After the complaint was filed on 29.3.2003 the complainant could be examined only on 7.1.2004 and thereafter one more witness was examined on 11.3.2004 whereafter cognizance was taken and summons issued. 6. It has been submitted on behalf of the petitioner that even though the occurrence is said to have taken place on 24.4.1996, the complaint was filed on 29.3.2003 i.e. almost after five years, whereas the punishment prescribed under Section 406 I.P.C. is only three years and therefore the complaint is time barred. Further submission of the petitioners is that the entire allegation is oral in nature and there is no chit of paper in support of business dealings between the two. Whereas the learned counsel for the opposite party contends that in fact from the perusal of the complaint an offence is made out and therefore, the cognizance should not be quashed. 7. In my view, the complaint having been filed only on oral submissions is not fit to continue since there is no explanation as to why the complainant could not produce any document in support of supply of the materials to the petitioners. Moreover, the fact that the complainant chose to approach the court after five years of the alleged last transaction, in my view, is grossly belated and a clear abuse of the process of the court. 8. In view of such, this application is allowed and the entire proceeding included order dated 11.3.2004 by which the Judicial Magistrate, Patna has taken cognizance in complaint case no. 629 (C) of 2003 against the petitioners is quashed. 9. Application stands allowed. ( Anjana Prakash, J.) Patna High Court, Patna Dated the 16th July, 2010 NAFR/ Fahad.