MAHESH PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Sri Mahesh Prasad, Advocate, the petitioner in person and Sri Jharkhandi Upadhyay, the learned A.P.P. for the State. Md. Parwez Akhtar, the complainant, impleaded as O.P. No. 2 herein, had initially appeared in this case by filing vakalatnama but ever since order dated 2.7.2007 directing him to be physically present in Court, both he and his counsel have become conspicuous by their absence in Court. Accordingly vide order dated 5.9.2007 fresh notices by both processes were directed to be issued to him and were in fact issued on 10.9.2007 but as the notice sent by registered post has not been returned unserved notwithstanding the passage of over two months it will be presumed under the provisions of the Civil Procedure Code to have been validly served. Today again there is no appearance either by O.P. No. 2 or by his accredited counsel.

(2.) Through this application the petitioner seeks the quashing of order dated 23.2.2004 passed by Sri Man Mohan Sharan Lal, Judicial Magistrate, 1st Class, Jehanabad in Complaint Case No. 220 of 2003 whereby cognizance for offences under Ss. 420 and 406 of the Indian Penal Code has been taken.

(3.) It appears that O.P. No. 2 herein filed the aforesaid complaint case on 21.4.2003 inter alia stating that he carries on business of selling Sevai which for the past two months he had been purchasing in cash from the accused persons having a Sevai Manufacturing Unit in the house of accused nos. 1 to 3 in Buddha Colony, Patna and that he sold the Sevai at different places. It is further stated that on 6.11.2002 the complainant received a telephonic call from accused no.3, informing him that 500 cartoons of Sewai would be given to him at a cheaper rate if he could advance the price as she was in an urgent need of money in absence whereof the manufacturing unit would have to be closed. It was also given out that on the following day (7.11.2002) either her husband or her son would meet him and he should make an arrangement for the money. It is alleged that on 7.11.2002, the complainant took out Rs. 70,000.00 from the Bank and handed over the same to the petitioner in the presence of his son, Pawan Kumar, at around 5.30 in the evening in his house and in token of such receipt of money the petitioner is said to have handed over a receipt of the cash memo of his firm. It is also alleged that notwithstanding the money being advanced the accused persons neither supplied the promised Sewai nor returned the entire money except for Rs. 5000.00 which was paid in the month of February, 2003.