Patna High Court
Rakesh Kumar Mishra vs The State Of Bihar on 14 May, 2024
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.55447 of 2023
Arising Out of PS. Case No.-1439 Year-2022 Thana- COMPLAINT CASE District- Araria
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1. Rakesh Kumar Mishra, S/o Paras Nath Mishra, R/o Village-Govindpur, P.S.-
Pratapganj, District-Supoul.
2. Vijayanand Singh, S/o Nityanand Singh, R/o Vilage-Narayanpur, P.S.-
Bachhwara, District-Begusarai.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Kartik Kumar Yadav, S/o Late Panchlal Yadav, R/o Village-Hanuman Nagar
Bhangahi, P.S.-Narpatganj, District-Araria.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Dr. Kamal Deo Sharma, Advocate
Mr. Tushar Vaibhav, Advocate
For the Opposite Party/s : Mr. Uma Shankar Prasad Singh, APP
Mr. Kundan Kumar Singh, Advocate
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CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
Date : 14-05-2024
1. Heard learned counsel for the petitioners and
learned counsel for the opposite party no.2.
2. The petitioners have filed the instant application
praying for quashing the order dated dated 18.1.2023 passed in
Complaint Case no.1439 of 2022 whereby the learned Judicial
Magistrate 1st Class, Araria was pleased to take cognizance
under sections 406 and 379/34 of the Indian Penal Code.
3. The prosecution case as per the complaint filed by
the opposite party no.2 on 20.7.2022 in the Court of learned
Chief Judicial Magistrate, Araria is to the effect that the
Patna High Court CR. MISC. No.55447 of 2023 dt.14-05-2024
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complainant is an educated unemployed person. Having coming
in contact with the Delhivery Pvt. Company, an offer was given
to the complainant to open a branch of the Company. An
agreement was entered into on 26.7.2019 and the complainant
started work of the Company. It is stated that after about a
month of start of the work, information was given by the
complainant to the accused persons on telephone that the work
of the Company was not running in a smooth manner. He was
facing various difficulties. Accordingly with the consent of the
accused persons, the location of the branch was changed and
once again the work started. It is stated that the complainant
having worked tirelessly got the Company to earn profit running
into crores. Though the accused persons paid the petitioners for
few months, however subsequently they stopped paying him
and the dues of the complainant on the accused rose to Rs.15
lacs. It is further stated by the complainant that the accused
persons entered into a conspiracy and on the pretext of
inspecting the branch of the complainant came there. In the
absence of the complainant, it is stated that accused nos. 6 and 7
gave information to the other accused persons. They kept the
local employees of the complainant in dark and got them to
open the branch on the pretext of going through some
Patna High Court CR. MISC. No.55447 of 2023 dt.14-05-2024
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documents. The complainant states that on going to the branch
on 15.10.2020, he found that the branch was open and neither
any employee was present there nor any of his goods was
available there. On making enquiries from the landlord, he was
informed that the persons had carried away all the expensive
items and had left goods worth about Rs.3 lacs with the landlord
in lieu of the rent. It is further stated that on enquiry it further
transpired that an application has been filed by the accused in
the police station also and a case has also been registered. The
complainant tried to somehow save himself from the accused
but was arrested by the police personnel on 20.3.2021. The
complainant further states that the accused persons had the
intention to cheat the complainant from the very beginning and
it was as a result of a well planned conspiracy between the
accused nos. 1 to 5 on one hand and the accused nos. 6 and 7 on
the other that in absence of the complainant the accused persons
had gone to the branch of the complainant, opened it in a
planned manner and had escaped with expensive goods
belonging to the complainant including four blank cheques of
Rs.2 lacs each. The complainant finally states that the accused
have taken away goods worth Rs.15 lacs. Having been released
on bail, it was because of illness that the complaint could not be
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filed on an earlier occasion.
4. Learned counsel for the petitioners submits that on
filing of the complaint, the statement of the complainant as also
the statements of two witnesses was recorded on solemn
affirmation in support of the complaint. It is by order dated
18.1.2023
that cognizance has been taken under sections 406
and 379/34 of the Indian Penal Code which is impugned in the
instant application. Learned counsel referring to the contents of
the petition further states that it was the petitioner who filed an
FIR being Narpatganj P.S. Case no.441 of 2020 on 30.9.2020
under sections 406 and 420 of the Indian Penal Code against the
opposite party no.2 herein. As stated in the complaint itself, the
opposite party no.2 was taken into custody and the instant
petition has been filed on false and frivolous allegations in
retaliation thereto. Both the petitioners herein are working staff
of the Company in question and they have been working in the
capacity of Assistant Security Manager and Station Manager.
The petitioner was one of the partners of the Company. It is
submitted that on the petitioners and other authorised officers
having inspected the centre of the complainant on 1.7.2020 that
cash to the tune of Rs.7.5 lacs and other materials to the tune of
Rs.2.68 lacs was found to be in short. On enquiry, the
Patna High Court CR. MISC. No.55447 of 2023 dt.14-05-2024
complainant assured that the short amounts and goods etc would
be restored. This led to filing of the above mentioned FIR in
which the opposite party no.2 was taken into custody and it was
only to set up a defence and to save himself that the instant
complaint has been lodged with false and malicious allegations.
5. In response, learned counsel for the opposite party
no.2 opposing the application has submitted that both the
petitioners are not only named accused in the complaint but
there is direct material against them in the complaint petition as
also the statement of the witnesses recorded in course of
enquiry. It is further submitted that as held by the Hon'ble
Supreme Court in the case of M/s Medchl Chemicals & Pharma
P. Ltd. vs. M/s Biological E. Ltd & Ors. [2000 (3) PLJR 56
(SC)] the complaint has to be examined in its entirety and the
Court has no jurisdiction to examine the correctness of the
complaint. On reading of the petition of complaint, prima facie
under sections 406 and 379/34 of the Indian Penal Code is made
out against the petitioners. There being no merit in the instant
application, the same be dismissed.
6. Having heard learned counsel for the parties and
having perused the material on record, this Court finds that so
far as the contents of the complaint petition filed by the
Patna High Court CR. MISC. No.55447 of 2023 dt.14-05-2024
complainant-opposite party no.2 is concerned, not only there is
direct allegation against the petitioners but it has been
categorically stated that the accused persons including the two
petitioners herein entered into a conspiracy, got the centre of the
complainant opened by the employees on the pretext of
examining some documents and took away goods worth Rs.15
lacs. The complainant in his statement on S.A. has supported the
allegations levelled in the complaint. Having perused the
material available on record and having gone through the
aforesaid judgment in the case of M/s Medchl Chemicals
(supra), this Court finds that the complainant has made out a
prima facie case to proceed against the petitioners under
sections 406 and 379/34 of the Indian Penal Code, the
petitioners have not made out any case for interference in the
order taking cognizance, impugned herein.
7. The Court finds no merit in the instant application
and the same is dismissed.
(Partha Sarthy, J)
avinash/-
AFR/NAFR
CAV DATE N/A
Uploading Date 16.05.2024
Transmission Date N/A
