JOYTOSH BANERJEE.J. - (1.) THIS revisional application is directed against order dated 5 -2 -1997 passed by the learned S.D.J.M., Alipore, 24 parganas (S) in C.G.R. Case No. 1479/95 arising out of Section UI (Tollygunge) P.S. Case No. 185/95 and the order impugned here is the order dated 5 -2 -1997 in such proceeding passed by learned S.D.J.M., whereby he took cognizance of the case.
(2.) SHORTLY , put the facts and circumstances leading to the instant proceeding are as follows: On 8th May, - 1995, the respondent No.2 herein lodged a written complaint with the O.C. of Tollygunge P.S. against the petitioners and such complaint related to a sum of Rs. 1,00,000/ -(Rupees one lakh), which accused No.1 wanted from one S.K. Jhunjhunwala and since the said S.K. Jhunjhunwala had no fund for payment of such a loan, according to the further allegations he introduced accused No.1 with the defacto complainant and requested him to Pay that amount to accused No.1 as a loan accommodation and accordingly, the defacto complainant with the said S.K. Jhunjhullwala went to the office of the accused persons and paid that amount in cash to accused No.1 who granted a signed receipt on a further allegation that on 8 -5 -1995, the defacto complainant with his brother in -law, the said S.K. Jhunjhunwala had been to the office of the accused for the purpose of getting back that money. It is the specific allegation that at that time the accused No. 1 took away the receipt from them and refused to pay back the money. The said petition of complaint was filed before the learned Chief Judicial Magistrate. Alipore who directed the police to investigate the same. Thereafter, police submitted the charge -sheet and the learned S.D.J.M., Alipore, 24 -parganas (S) took the cognizance through his order dated 5 -2 -1997 and the order impugned reads as follows: "Received challan alongwith C.D. statement as mentioned in 173 Cr. P.C. under Sections 120B/420 I.P.C., against the accused Nos. 1 & 2 who have been shown absconding in this challan. Perused the C.D. Cognizance taken I/O prayed for process against the accused Nos. 1 & 2. Issue process against the accused Nos. 1 & 2 13 -5 -1997 for copy & E.R."
(3.) NOW , both the accused persons have come up before this Court chal1enging such order mainly on the ground that the allegations raised in the instant case regarding advancement of loan and failure to repay the same could not in any way be said to be any of the ingredients of Section 415 of the Indian Penal Code making the commission of the act punishable under Section 420 of the said Code. All those alleged acts might give rise to a civil dispute but these fails to prima facie establish any offence punishable under Section 420 I.P.C. and the learned S.D.J.M., Alipore took the cognizance of the offence illegally.;