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Malay M. Khimji, Mahendra Khimji v/s Nemaru Coffure


Company & Directors' Information:- MAHENDRA LTD [Strike Off] CIN = U45201WB1943PLC011234

    Criminal Miscellaneous No.3595 OF 1999

    Decided On, 01 April 2010

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE RAKESH KUMAR

    For the Appearing Parties: Mriganj Mauli, Vinay Mistry, Gurmit Singh, S.D. Sanjay,Gautam Kejriwal, Advocates.



Judgment Text

RAKESH KUMAR, J

(1.) Two petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 3.5.1997 passed by Sri Vimal Kumar Sinha, Judicial Magistrate, 1st Class,Patna in Complaint Case No.288(c) of 1997. By the said impugned order, the learned Magistrate had taken cognizance for the offence under Sections 406, 420 and 403 of the Indian Penal Code.

(2.) As per the case of the complainant, the complainant was cheated by the accused persons, which include the petitioners, by way of persuading the complainant to deposit security money and subsequently, the complainant was given credit notes by the accused persons for the amount of Rs.70,000/- , but the same was not honoured . Accordingly, the complaint petition was filed. After the complaint petition was filed, the complainant was examined on solemn affirmation and thereafter one witness was examined, who supported the complainants case. After being satisfied that prima facie case was made out, the learned Judicial Magistrate, 1st Class, Patna took cognizance for the offences under Sections 406, 420 and 403 of the Indian Penal Code and ordered for issuance of processes for securing the attendance of the accused persons.

(3.) Mr. Mrigank Mauli, learned counsel appearing on behalf of the petitioners has challenged the order of cognizance on the ground that the learned Magistrate in a mechanical manner had taken cognizance of the offence. The learned counsel for the petitioners submits that on perusal of the complaint petition, it is evident that the dispute was only in nature of accounting dispute and no offence is made out from the perusal of the complaint petition. He further submits that the petitioners and the complainant were in business term and it was dispute of civil nature and for which the complainant was not required to file the present complaint petition. Learned counsel for the petitioners, while pressing this petition, has referred to Annexures 4, 5, 6and 7 to the petition. He submits that Annexure-4, which is an statement of accounts , categorically indicates that it is the complainant against whom petitioners dues were lying and the complainant was required to refund the same , but instead of refunding the money the complainant had filed the present complaint petition in his defence. He further refers to Annexures 6 and 7 to the petition and submits that there were exchange of legal notices in between the parties ,which have been mentioned in the complaint petition and, as such, it can not be said that any offence has been committed by these petitioners.

(4.) Sri S.D. Sanjay, learned counsel appearing on behalf of Opp.Party no.2 has vehemently opposed the prayer of the petitioners. He submits that the petitioners have come at the very initial stage of a criminal proceeding and time without number the Honble Supreme Court has restrained the superior court from interfering with the initial or interlocutory stage of a case. He further submits that the documents, on which the petitioners have relied upon, may not be looked into by this Court, while exercising its power under Section 482 of the Code of Criminal Procedure. He submits that those documents can be looked into by the concerned court at the appropriate stage, particularly at the defence stage during the trial.

(5.) Without going into the merit of the case, I am of the view that at this stage it would not be appropriate for this Court to interfere with the matter and the documents, on which the petitioners are relying upon, can be looked into by the court below. It has been informed that till date, in the case, charge has not been framed. It is advisable for the petitioners to raise all these points and place all those documents, which were placed before this Court, at the stage of charge. If the petitioners file a petition for discharge enclosing therewith statements of accounts, which has been placed before this Court, it is expected that the learn

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ed Magistrate will examine the same without being prejudiced by this order and may pass appropriate order in accordance with law. This Court further expects that the learned Magistrate, while passing the order at the stage of charge, may also examine the documents produced by the petitioners irrespective of the fact that those documents are to be looked into at the defence stage. With the above observation and directions, the petition stands rejected.
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