MALAY M KHIMJI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 3.5.1997 passed by Sri Vimal Kumar Sinha, Judicial Magistrate, 1st Class,Patna in Complaint Case No.288( c) of 1997. By the said impugned order, the learned Magistrate had taken cognizance for the offence under Sections 406, 420 and 403 of the Indian Penal Code.

(2.) As per the case of the complainant, the complainant was cheated by the accused persons, which include the petitioners, by way of persuading the complainant to deposit security money and subsequently, the complainant was given credit notes by the accused persons for the amount of Rs.70,000/- , but the same was not honoured . Accordingly, the complaint petition was filed. After the complaint petition was filed, the complainant was examined on solemn affirmation and thereafter one witness was examined, who supported the complainants case. After being satisfied that prima facie case was made out, the learned Judicial Magistrate, 1st Class, Patna took cognizance for the offences under Sections 406, 420 and 403 of the Indian Penal Code and ordered for issuance of processes for securing the attendance of the accused persons.

(3.) Mr. Mrigank Mauli, learned counsel appearing on behalf of the petitioners has challenged the order of cognizance on the ground that the learned Magistrate in a mechanical manner had taken cognizance of the offence. The learned counsel for the petitioners submits that on perusal of the complaint petition, it is evident that the dispute was only in nature of accounting dispute and no offence is made out from the perusal of the complaint petition. He further submits that the petitioners and the complainant were in business term and it was dispute of civil nature and for which the complainant was not required to file the present complaint petition. Learned counsel for the petitioners, while pressing this petition, has referred to Annexures 4, 5, 6& 7 to the petition. He submits that Annexure-4, which is an statement of accounts , categorically indicates that it is the complainant against whom petitioners dues were lying and the complainant was required to refund the same , but instead of refunding the money the complainant had filed the present complaint petition in his defence. He further refers to Annexures 6 and 7 to the petition and submits that there were exchange of legal notices in between the parties ,which have been mentioned in the complaint petition and, as such, it can not be said that any offence has been committed by these petitioners.