ATIN KUMAR CHOWDHURY SON OF SHRI ASIT KUMAR CHOWDHURY Vs. STATE OF BIHAR AND SHRI DILIP KUMAR SINHA SON OF LATE MADAN MOHAN LAL

JUDGEMENT

(1.) 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 1.9.1998 passed by Sri G.S.R. Tripathi, Judicial Magistrate, 1st Class, Gaya in Complaint Case No. 344 of 1998, whereby the learned Magistrate has taken cognizance of offences under Section 420 and 406 of the Indian Penal Code against the petitioner and others. The petitioner has also prayed for quashing of the entire proceeding against him in Complaint Case No. 344 of 1998.

(2.) After filing of the present petition, a supplementary affidavit was filed on behalf of the petitioner clarifying the position that the complaint case was transferred under Section 192(1) of the Code of Criminal Procedure by order dated 30.6.1998 passed by the learned Chief Judicial Magistrate, Gaya for disposal to the file of Sri G.S.R. Tripathi, 1st Class, Gaya. The transferry court after recording statement of complainant on S.A. and conducting enquiry under Section 202 of the Code of Criminal Procedure, took cognizance of the offence by its order dated 1.9.1998, specifically against Sri Niwas Mundra, Sri Bal Krishna Bhattar and Shri Krishna Mahto . It was further clarified in the supplementary affidavit that despite the fact that by order dated 1.9. 1998 cognizance order was not passed for the offence against this petitioner and one another accused, the learned Magistrate erroneously proceeded against all the accused persons even against the petitioner.

(3.) Short fact of the case is that Opp. Party No. 2, Sri Dilip Kumar Sinha filed a complaint petition, which was registered as Complaint Case No. 344 of 1998. In the complaint petition, the complainant disclosed that he was a business man and dealing in clothes in the Gaya District and in course of aforesaid business, the complainant used to purchase clothes from different manufacturers of India. The manufacturers used to send their agents to collect order from different dealers. It was alleged that all the five accused persons, whose names find place in Annexure-1 to the petition, were agents of different cloth manufacturing Companies. It was specifically asserted in paragraph 3 of the petition that on 6.9.1997 all the accused persons came together in the shop of the complainant at about 11.00 A.M. and displayed various samples of textiles and the complainant in good faith placed orders of textiles to all the five accused persons and he paid Rs. 2000/-(two thousand) to all the accused persons as advance in presence of witnesses. It was disclosed in the complaint petition that accused persons assured the complainant regarding delivery of goods within 15 to 20 days. As per the complainant, the accused persons never supplied the goods to the complainant despite the fact that he made several attempts through telephone and thereafter the complainant personally went to the places of accused persons and asked to return the advance amount, but the accused persons refused and threatened the complainant with dire consequences. On the aforesaid allegation, the complaint petition was filed. After filing the complaint petition, the complainant was examined on S.A. and after conducting enquiry, the learned Magistrate vide its order dated 1.9.1998 took cognizance of offences specifically against only three accused persons. However, as per clarification made by the petitioner through Supplementary affidavit, the Court proceeded against this petitioner also.