Criminal Miscellaneous No.10756 OF 1999 In the matter of an application under Section 482 of the Code of Criminal Procedure ----------- Sumit Jayaswal S/O Dr. P.K. Jaiswal , 57 A, Dakbunglow Road, P.S. Kotwali, Town & District-Patna ---- Petitioner Versus 1. THE STATE OF BIHAR 2. Abhai Kumar Singh, Prop. M/S Ambience International S/O Sri Radhey Shyam Singh, resident of B/30, P.S. Budha Colony, Town & District-Patna -------------- Opp.Parties. ------------ For the petitioners: S/Sri Umesh Prasad Singh, Sr.Advocate Rajeev Ranjan Prasad & Prakash Chandra Jha, Advocates. For Opp.Party no.2 : None. For the State : Smt. Indu Bala Pandey, A.P.P. ___________ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Despite repeated calls, none appeared on behalf of Opp.Party no.2. However, in the present case at the time of admission, a counter affidavit was filed on behalf of Opp.Party no.2. 2. 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 3.12.1997 passed by Sri A.K.Sinha, Judicial Magistrate, 1st Class, Patna in Complaint Case No.434( C) of 1997. By the said order, the learned Magistrate has taken cognizance of the offences under Sections 420 and 406 of the Indian Penal Code and ordered for issuance of process for securing attendance of the accused persons. 3. Short fact of the case is that Opp.Party no.2 filed a 2 complaint petition , vide Complaint Case No.434( C) of 1997 alleging therein that this petitioner had approached the complainant on 15.9.1992 and persuaded him to supply leather products ,i.e. ladies and gents leather over-coats. The complainant had disclosed in the complaint petition that he was proprietor of M/S Ambience International, which was dealing in export and import of leather garments and he was having a licence issued by the Government of India vide Order No.DC/Pat/263/ICE/92-93 dated 16.12.1993. It was alleged that on persuasion of this petitioner, the complainant agreed to supply the articles to accused no.3 at Delhi. It was agreed that the said over-coats was to be purchased by the accused persons @ Rs.2046/- i.e. 66/- U.S. Dollar per piece. As per oral agreement, the said goods were to be exported to Russia. Subsequently, the petitioner delivered 100 pieces of leather garments to accused no.3 at Delhi and further said articles were also handed over. As per agreement, the sale proceed was to be transferred in the complainant’s account in U.S. Dollar within seven days of receipt of articles. It was alleged that consignment was given in the month of January, 1993 and thereafter despite assurance given by the accused persons, payment was never made to the complainant. The complainant also disclosed in his complaint petition that earlier he had filed a complaint case vide Complaint Case No.787 ( C) of 1995, which was dismissed for default on 11.6.1996 . In the complaint petition, which was filed by the complainant in the year, 1997, i.e. Complaint Case No.434 (C) of 1997, the complainant had given names of two witnesses, i.e. Sri Ram 3 Bhushan Kumar and Bipin Kumar Singh. After noticing the fact that the complainant was cheated, the complaint petition was filed. He was examined on S.A. and in support of the complainant, two witnesses were examined and thereafter by order dated 3.12.1997, the learned Magistrate took cognizance of the offences under Sections 406 and 420 of the Indian Penal Code. 4. Sri Umesh Prasad Singh, Learned Senior Counsel appearing on behalf of the petitioner, while challenging the order of cognizance, submits that the order of cognizance is liable to be set aside on the ground that in the present case on the same set of allegation, the complainant’s earlier complaint, i.e. Complaint Case No.787 (C) of 1995 was rejected on 11.6.1996. While dismissing the complaint petition, the learned Magistrate had observed that the complainant was not appearing and not showing interest in the complaint petition and at the same time the learned Magistrate after examining the records was satisfied that no prima facie case was made out and thereafter his complaint was rejected. Sri Singh, learned Senior Counsel, submits that once the complaint was rejected by the Magistrate on the same set of facts, second complaint was not maintainable and, as such, the cognizance taken by the learned Magistrate is liable to be set aside. On behalf of the petitioner, it was further argued that on the date of alleged occurrence, the petitioner was not in India, but he was in Russia. Learned Senior Counsel has referred to Annexures 3 and 3/1 to the petition. Annexure-3 is a copy of Chart prepared by the petitioner to show different dates of his arrival in India 4 and departure from Indian and Annexure-3/1 is photo copy of part of the Passport , containing mark of Stamp. While referring to Annexures 3 & 3/1 , he submits that on the date of occurrence, the petitioner was not in India. Learned Senior Counsel for the petitioner further submits that in the complaint petition itself, the complainant had admitted that he was having import and export licence , which was issued in the year 1993 and, as such, on the date of alleged agreement/occurrence, the complainant was not even the exporter, so on the date of occurrence , he was not in position to export any articles , as claimed by the complainant. Learned Senior Counsel for the petitioner submits that in the entire complaint petition, the complainant has not disclosed that there was any written agreement in between the parties. According to Sri Singh, Learned Senior Counsel for the petitioner, written agreement was necessary for the purposes of completing all formalities to export the goods. 5. Learned Senior Counsel for the petitioner has also placed on record a photo copy of complaint petition, which was filed by the complainant in the year 1995. It was argued that contents of both the complaint petitions, i.e. Complaint Case No.787 ( C) of 1995 and Complaint Case No.434( C) of 1997, are same and similar , save and except that in the complaint petition , which was filed in the year 1997, name of witness was changed. It was argued that the present complaint petition was filed with oblique motive. 6. Smt. Indu Bala Pandey, Learned Counsel appearing on behalf of the State has opposed the prayer of the petitioner and 5 submits that at this stage the plea of alibi of the petitioner cannot be entertained. She further submits that the complaint petition itself discloses the offence and, as such, this Court may not interfere at this initial stage of cognizance in the present case. 7. Besides hearing learned counsel for the parties, I have also examined the materials available on the record. In the complaint petition, it was alleged that delivery of goods was affected in the year 1993 and the complainant had filed the first complaint petition in the year 1995. However, on perusal of the materials on record, it appears that the complaint was rejected by the learned Magistrate on merits. In the supplementary affidavit, which was filed on behalf of the petitioner, specific assertion was made that in earlier complaint petition, the complainant was examined on S.A. and thereafter two witnesses were also examined. However, the learned Magistrate having not satisfied with the materials available on the record had dismissed the complaint petition under Section 203 of the Code of Criminal Procedure. 8. On perusal of both the complaint petitions, it is evident that the contents of both the complaint petitions are same. Only name of witness was changed in the present case. Once on merit, the earlier complaint petition was already rejected, I am of the opinion that second complaint on same and similar allegation was not maintainable. Moreover, the fact in the present case also creates a serious doubt on the allegation made by the complainant. For the purposes of exporting the goods , it is difficult to perceive that one without entering into the 6 written agreement will proceed and take step for exporting any goods. 9. Without going into the merits of the case, on the ground of filing second complaint petition and not disclosing correct fact, I am of the view that the order of cognizance is liable to be set aside. In the present complaint petition, the complainant though had disclosed the fact regarding filing of earlier complaint on the same allegation, the complainant purposely made an incorrect statement that earlier complaint petition was dismissed for default. However, fact remains that earlier complaint petition was dismissed on merit besides none showing of any interest by the complainant. 10. Considering the facts and circumstances of the case, as mentioned herein above, I am of the view that allowing further proceeding pursuant to the present complaint will amount to allowing the abuse of the process of the court and, as such, with a view to prevent the abuse of the process of the Court I exercise my inherent jurisdiction and quash the order of cognizance dated 3.12.1997 passed in Complaint Case No.434(C) of 1997. Accordingly, the petition stands allowed. Patna High Court,Patna Dated : the 27th April,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )