MD.FAIYAZ ALAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE complainant of Complaint Case No. 1223/2002 is aggrieved by order dated 29.8.2005 passed by the learned 2nd Additional Sessions Judge, Purnea, in Criminal Revision No. 149/2003, whereby he has dismissed the aforesaid revision which had been preferred against order dated 29.4.2003 passed in the aforesaid complaint case by Sri R. Krishna, Judicial Magistrate, Purnea, by which he had dismissed the complaint.

(2.) THE complainant had filed the aforesaid complaint case against O.P. Nos. 2 to 13 impleaded herein inter alia alleging commission of offences under Sections 149, 392/34, 109 and 120B I.P.C. at their hands. It has been stated inter alia that the complainant is a businessman and possesses landed property in his village Kochaili within Amour Police Station. it is alleged that on 9.10.2002 he had been to his village to look after his landed property and also to collect the money from one Master Zakiruddin who had taken loan of Rs. 10,000/ - from him and had promised to return the same by 10.10.2002. It is said that since the complainant had gone to the village he approached Master Zakiruddin for payment and, in fact, the aforesaid sum was paid to him at 2 P.M. in the presence of accused Azmal who was present at the darwaza and had seen the payment being made. It is alleged that later while the complainant was returning from his village home in the evening on his motorcycle and had reached Kaliwari Chowk near Dakaitadhar all the accused persons armed with deadly weapons and forming an unlawful assembly and in conspiracy with each other stopped the complainant. It is alleged that accused Azmal took out Rs. 10,000/ - from the handbag of the complainant and the accused having assaulted the complainant fled as witnesses started assembling. It is said that the complainant filed the complaint petition before the Chief Judicial Magistrate, Purnea, as the police refused to record the F.I.R. and in the said complaint he named Md. Zulfequar, Md. Mouzzam and Akhtar Hussain as his witnesses. The said complaint was transferred to the Court of Sri R. Krishna who examined the complainant on S.A. and also recorded the statement of witness Akhtar Hussain. Thereafter the complainant filed a petition in the Court stating that his witnesses Md. Zulfequar and Md. Mouzzam had been gained over by the accused persons and they were not inclined to depose since they were being threatened with dire consequences by the accused persons and on the aforesaid grounds he gave up his opportunity of producing those witnesses for their examination.

(3.) THE learned Magistrate having considered the materials available on record dismissed the complaint primarily on two issues, namely, that Zakiruddin, an important witness had not been examined and that there was contradiction in the evidence of witness Akhtar Hussain. The revision preferred against the said order of dismissal being Cr. Revision No. 149/2003 was also dismissed by the learned Second Additional Sessions Judge, Purnea, on the ground that the said order was legally and factually tenable.