Criminal Miscellaneous No.22075 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ----------- Navrang Prasad Banka @ Navranglal Banka alias Navranglal Banka , Son of Late Gopal Das Banka , resident of Shyam Jee Vastra Bhandar, Cinema Road, Gorakhpur, Uttar Pradesh --------------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Ram Ratan Choudhary, S/O Late Hira Lal Choudhary, resident of Main Road, Begusarai, P.S. Town, District- Begusarai ------------------ Opp.Parties. ----------- For the petitioner: S/Sri S.D.Sanjay & Akash Chaturvedi, Advocates. For the State : Mr.Damodar Prasad Tiwary, A.P.P. ----------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, who is resident of Uttar Pradesh , while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of order dated 28.11.1998 passed by Sri V.K.Singh, learned Judicial Magistrate, 1st Class, Begusarai in Complaint Case No.1017C of 1998. By the said order, the learned Magistrate has taken cognizance of the offences under Sections 406 and 420 of the Indian Penal Code against this petitioner and other five similarly situated accused persons, who are residents of different places. 2. Short fact of the case is that Opp.Party no.2 filed a complaint vide Complaint Case No.1071C of 1998 disclosing therein that he was a retail and wholesale dealer of clothes and he was purchasing clothes from different agents of the different places. It was 2 disclosed that six accused persons, namely, (i) Roshan Lal, resident of Rourkela ( Orissa), (ii) Hanuman Prasad Mathura, resident of Jaleshwar( Orissa) ,(iii) Trilok Chandra Lohia , resident of Jorehat (Assam), (iv) Navranglal Banka, resident of Gorakhpur ( U.P.) ,(v) Hari Prasad Chaudhary , resident of Jaipur ( Rajasthan) and (vi) Girish Chandra Agrawal, resident of Jaipur ( Rajasthan) came at the shop of the complainant on 24.3.1998 at about 3.00 P.M. and thereafter they produced different verities of sample of saris and other clothes to the complainant. Satisfied with the materials, the complainant booked for supply of clothes for an amount of Rs.40,000/- to each of the accused persons and all the accused persons were paid Rs.5000/- each as advance for supply of clothes for an amount of Rs.40,000/- . As per the complaint petition, the clothes were to be supplied by accused persons within a period of one month. It was alleged that when after expiry of one month, no goods were supplied by any of the six accused persons, the complainant firstly telephonically inquired from the accused persons and when they failed to respond then he personally visited to the place of accused persons for either refund of advanced money or supply of ordered clothes. It has been alleged that the accused persons, who were known to the complainant since more than 4-5 years, had cheated the complainant and accordingly the accused persons had committed offences under Sections 406 and 420 of the Indian Penal Code. After filing of the complaint petition, the complainant was examined on S.A. and thereafter complainant produced three witnesses in support of his complaint, who supported 3 the complainant and thereafter the learned Magistrate by its impugned order dated 28.11.1998 took cognizance of the offences under Section 406 and 420 of the Indian Penal Code and directed issuance of processes for securing the attendance of accused persons. 3. Aggrieved with the order of cognizance dated 28.11.1998, the petitioner approached this Court by filing the present petition. On 27.9.1999, while issuing notice to Opp.Party no.2, this Court had directed that in the meanwhile, further proceeding in Complaint Case No.1071 ( C) of 1998 pending in the Court of Shri V.K.Singh, Judicial Magistrate, 1st Class, Begusarai shall remain stayed. The notice was validly served on Opp.Party no.2 at the stage of admission and thereafter on 5.12.2000, the petition was admitted for hearing. It appears from the record that even though the notice was validly served, none appeared on behalf of Opp.Party no.2 at the stage of admission and thereafter on 5.12.2000, the present petition was admitted for hearing. While admitting the case for hearing, this Court again directed for issuance of notice to Opp.Party no.2 and it was further directed that during the pendency of this application, interim order dated 27.9.1999 passed by this court shall continue. However, at the time of hearing, none has come forward to defend the case of Opp.Party no.2. 4. Sri S.D.Sanjay, learned counsel appearing on behalf of the petitioner submits that perusal of complaint petition itself indicates that the allegation appears to be not probable. He submits that it is difficult to comprehend that at one time six accused persons from 4 different places and different States can assemble at the shop of the complainant and all the accused persons can be given ordered for supply of clothes for an amount of Rs.40,000/- each and all the accused persons can be advanced Rs.5000/- . He further submits that the disclosure made by the complainant in his complaint that after expiry of one month without supply of ordered goods the complainant even went to the place of accused persons for either refund of the advance money or supply of goods is unreliable. In sum and substance, he submits that the petition was filed maliciously and the story of complainant can not be believed to be true and only on the ground of malicious prosecution, Sri Sanjay, learned counsel for the petitioner has prayed for quashing of the order of cognizance as well as for quashing of subsequent proceedings in the present case. 5. Sri Damodar Prasad Tiwary, learned counsel appearing on behalf of the State opposes the prayer of the petitioner. 6. On examination of the complaint petition, I am of the view that the story developed in the complaint petition is improbable and on the ground of improbability, it is necessary to interfere into the matter even at the stage of cognizance of the present case. It is difficult to comprehend that six persons from different places can deceive the petitioner at one time. The story appears to be completely concocted and, as such, without going into the detail, I am of the view that order of cognizance in the present case is liable to be set aside and, accordingly, I set aside the order dated 28.11.1998 passed by the learned Judicial Magistrate, 1st Class, Begusarai in Complaint Case 5 No.1071C of 1998. Accordingly, the petition stands allowed. Patna High Court,Patna Dated : the 10th May,2010 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar, J )