BASANT GUPTA @ BASANT PRASAD GUPTA Vs. STATE

JUDGEMENT

(1.) This petition has been filed under Section 482 of the Code of Criminal Procedure for quashing the entire proceeding including the order of issuance of process dated 16.9.1992 passed by Judicial Magistrate, Ist Class, Khagaria. In complaint case No. 261-C/92 cognizance was taken under Sections 406, 420 and 120-B of the Indian Penal Code against the petitioner along with three others. Opposite party No. 2 filed a complaint case with the allegation that while he was very much eager to get his wife admitted in a training school or college then he was proposed by the accused Kamleshwari @ Kamal Kishore Sahi with the present accused along with two others had come to the village and informed that a training college in the name of Bhagwan Budha Prathamik Sikshak Shiksha Prashikshan Mahavidyalaya, Bhatkhora Bazar, had been opened in which accused Nos. 2 and 3, namely, Usman Ali and Md. Abbas Mian had also got their brother admitted in Gautam Budhe Sikshak Prashikshan Mahavidyalaya on payment of Rs. 10,000/- each and they asked the complainant, if so desired, to bring Rs. 10,000/- and educational certificate of his wife next day to get his wife admitted in the so-called Mahavidyalaya. On the misrepresentation made by the accused petitioner he took faith on it and parted with Rs. 10,000/- in favour of the petitioner but afterward on inquiry it could be found that there was no such institution being established and that the complainant had been cheated by the accused-persons including the petitioners. They he demanded back the money parted with by him to the petitioner but the same was not returned. Even a legal notice served on the petitioner was of no avail and finding no other alternative complainant lodged a complaint. On the basis of the complaint petition an enquiry was held under Section 202 of the Cr PC and the Court below after considering the complaint petition and on the materials an inquiry under Section 202, Cr PC took cognizance of the offence as mentioned above and issued processes against the petitioners and other accused persons.

(2.) It is the submission of the petitioner that as per the government policy private institutions like that of the institution set up by the petitioner was working in the area and there was no misrepresentation from the side of the petitioner and after getting approval of the Government, he took admission of the students in his Mahavidyalaya, although subsequent facts are not therefore the Magistrate who took cognizance.

(3.) On the face of the contentions of the complaint petition ingredients of the penile provisions were there according to the complainant and his witnesses there was misrepresentation of facts on the basis of which the complainant had parted with a valuable amount of Rs. 10,000/- in favour of the petitioner and the same was misappropriated by him. The cognizance has been taken on the basis of materials available before the Magistrate. It cannot be said that the cognizance taken is bad in the eye of law. If the bona fide of the petitioner is clear as is stated in this petition then he should have brought all those factual aspects before the Court at appropriate stage but without doing so soon after issuance of the summons, the petitioner had come before this Court challenging cognizance. On the face of records, it cannot be said that the cognizance is without jurisdiction and the criminal case has got no footing at all.