SUBODH CHANDRA SHOME Vs. DURGA MADHAB DAS

JUDGEMENT

(1.) THE accused persons in complaint case No. ICC. 40/84 are the petitioners who have invoked the inherent jurisdiction of this Court under Section 482, Criminal Procedure Code to quash the order of the Chief Judicial Magistrate, Cuttack, taking cognisance of the offence under Section 420, Indian Penal Code and summoning the petitioners to appear before him. The opposite party filed a complaint before the learned Magistrate alleging that a power of attorney was executed by the petitioners in his favour authorising him to sell some lands belonging to the petitioners and in pursuance of the said power of attorney though the opposite party did negotiate some sale and in fact effected some sale and spent some money for purchase of stamps, the accused persons cheated him in not paying his dues which according to the opposite party amounts to Rs. 10,400/ -. On the basis of the said complaint petition and after recording the initial statement of the complainant, the learned Magistrate took cognisance on 8. 2. 1984. The case of the petitioners in this Court is that even if the entire allegations made in the complaint petition as well as the initial statement of the complainant taken on their face value, at the most it would be a civil dispute and no offence under Section 420 I. P. C. can be said to have been established prima facie authorising the Magistrate to take cognisance The learned counsel for the opposite party however contends that all the ingredients of the offence of cheating having been established, it would not be a case where this Court should exercise inherent power to quash the cognisance and the criminal proceeding pending before the Magistrate.

(2.) THE law on the question as to when the High Court should exercise its inherent power has been elaborately and lucidly discussed by this Court in the case of M/s. Lord Match Industries, through its Partner A. Pagalanthi and others v. M. S. Selvasekeran, 55(1983) C. L. T. 24. It is no doubt true, that the inherent power of this Court should be sparingly and cautiously used, but ii all the allegations made in the complaint petition and the initial statement of the complainant taken in entirety without any addition or substraction do not make out the offence, then the Court must exercise its inherent power and quash the cognisance or else it would be a gross abuse of process of law.

(3.) In the result, therefore, I would set aside the order of the learned Magistrate dated 8. 2. 1984 taking cognisance of the offene under Section 420 I. P. C. in I. C. C. Case No. 40 of. 1984 and quash the said proceedings pendings in the Court of the Chief Judicial Magistrate, Cuttack. The Criminal Miscellaneous case is accordingly allowed.