NARMADESHWAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application has been filed under Section 482 of the Code of Criminal Procedure for quashing the criminal prosecution including order dated 11th September, 1993, by which the cognizance for the offence punishable under Sections 406/409/420 and 120-B of the Indian Penal Code has been taken against the petitioner by the Sub-Divisional Judicial Magistrate Jamshedpur, in connection with C/I Case No. 363/9S.

(2.) It appears that opposite party No. 2 by way of complaint against the petitioner and another person alleged that he carried transportation business and had been entrusted with a consignment by the accused and after completing the transportation he submitted a bill of Rs. 15,500. It was alleged that the accused had delivered consignment weighing about 11 M.T. as against the permissible load of 9 M. T. and for that violation of the rules, the complainant had to face a good deal of problems in transit and the consignment had to be unloaded and re-loaded at several check points and thereby complainant had to incur additional expenses not covered by the normal terms of the agreement, but it was expressly implied therein. It was further alleged that some other consignment was also brought by the complainant for delivery to the accused, but the bill for the transportation of the said consignment was not paid. It was alleged that the consignment beyond permissible limit was carried on the assurance of the accused (petitioner) that in case of any aventuality in transit, if there were some additional expenses necessary to be incurred, the same would be included in the final bill which the accused would accept and pay without any grudge and objection. It was alleged that the accused petitioner paid only Rs. 10,000 against the bill of Rs. 15,500 and has not paid the rest despite notice and hence the complaint was filed. A copy of the complaint petition is Annexure 1 of the petition. Four witnesses were examined on behalf of the complainant under Section 202 of the Code of Criminal Procedure. Photo copy of the deposition of those witnessen are Annexure 2 series. The learned Magistrate considered the evidence made under Section 202, Cr. P. C. and on perusal of the evidence of complainant took cognizance against the petitioner and another accused for the offence punishable under Sections 406/409/420/120-B of the Indian Penal Code. The said order has been challenged by the present application.

(3.) Learned counsel for the petitioner has contended that no offence has been made out on the allegation made in the complaint petition and utmost it was a case of civil nature regarding the breach of contract. On the other hand the learned counsel for opposite party No. 2 has contended that the offence punishable under Sections 406/409/420 and 120-B of the Indian Panal Code are made, out on the allegations made in the complaint. Ho has further contended that the petitioner has full opportunity to make his submissions before the trial court at the stage of framing of charge and his contention that no charge is made out may be considered by the trial court at that stage.