ALOK KUMAR PRASAD Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) In this case, the petitioner is challenging the order dated 26th November, 2010 passed by the Judicial Magistrate, 1st Class, Patna on a petition filed under Section 319 of the Code of Criminal Procedure (hereinafter, referred to as the 'Code') which has been rejected being declared as not maintainable. The complainant appeared in person and argued his case and at the end of argument filed written argument in support of his contention. The complainant filed a complaint case where allegation has been made that Vivek Saraogi, accused No. 4 persuaded/forcefully asked the petitioner to became consultant on payment of requisite fee on chain basis. He gave the promise of other benefit and also promised to give personal insurance coverage for Rs. 1,00,000/- (one lacs). Relying on his version/assurance, the complainant-informant became consultant on payment. Later on he renewed membership by paying requisite amount. Unfortunately, petitioner met with an accident on 18th October, 2010, which caused fracture to his right femoral bone and he was treated at Orthopedic and Hand Surgery Clinic in Patna in which he underwent major operation. He made query from Vivek Saraogi but he always gave evasive, misleading, concocted reply and thereby embezzled the money paid as a premium.

(2.) On the basis of the complaint petition, including the SA, the court took cognizance as has been claimed by the petitioner against the accused persons, including Vivek Saraogi by order dated 25th February, 2005 and the court directed for issuance of notice and asked the complainant to submit the requisites for service of notice.

(3.) It appears that on receipt of notice by Vivek Saraogi an application dated 10th May, 2005 was filed where statement has been made that no cognizance has been taken against Vivek Saraogi but it appears, due to inadvertence, Office issued summons to him. The same was replied by the complainant-petitioner on 11th July, 2005 where prayer has been made by the complainant to reject the application filed by Vivek Saraogi, as the Office had rightly issued notice and, as such, the question of recall of order of summons issued against him did not arise. The said reply was answered by Vivek Saraogi stating that the court had not taken cognizance but due to slip of pen on the part of the office, the summons was issued against Vivek Saraogi. The court below considered the petition filed by Vivek Saraogi and reply of the petitioner, by order dated 10th February, 2010 found that the cognizance was not taken against Vivek Saraogi and due to mistake and inadvertence, on the part of Office, summons was also issued against him and, accordingly, for ends of justice the petition dated 10th May, 2005 was allowed and, accordingly, summons against Vivek Saraogi was recalled.