D.G.R.PATNAIK,J. - (1.) PETITIONERS in the instant application under section 482 of the Code of Criminal Procedure, have prayed for quashing the order dated 29.08.2005 passed by the Judicial Magistrate in Complaint Case No. 12 of 2005, whereby the learned court below has taken cognizance of the offences under section 407 I.P.C. against the petitioners. The further prayer made is for quashing the entire criminal proceedings which is pending against the present petitioners following the impugned order of cognizance. Heard counsel for the petitioners, counsel for the opposite party no. 2 and also counsel for the State.
(2.) LEARNED counsel for the petitioners has assailed the impugned order of cognizance on the ground that it is illegal and has been passed without application of judicial mind and as a matter of fact, by suppressing material facts and misrepresenting the facts, the complainant has managed to obtain the impugned order of cognizance for the criminal prosecution of the petitioners only to harass them. Elaborating his arguments, learned counsel reads out the entire contents of the complaint petition and submits that even as per the allegation of the complainant, petitioners being the goods carrier, the consignment of the goods was given to the petitioners for transportation and delivery to the consignee namely, Mahabir Kali and Co., at Deoghar. The consignment was thereafter delivered to the consignee. The consignee has though received the goods, but had not paid the price of the goods to the complainant and it is only for the purpose of realization of the amount from him through criminal proceedings, that the complainant has maliciously involved the present petitioners on the basis of false and frivolous allegations in the criminal proceedings against them. Learned counsel submits that the contention of the complainant that after dispatching the goods through the road carriers he had instructed the petitioners not to deliver the goods to the consignee and to return the same to him, is misleading in as much as, such instruction was never given to the petitioners, prior to the delivery made to the consignee. The complainant has intentionally failed to produce any copy of such written instruction which he claimed to have issued to the petitioners. Learned counsel explains further that in view of the entire facts and circumstances, it would transpire that the grievance of the complainant is basically for non-payment of the price of the goods which has been admittedly received by the consignee namely, Mahabir Kali and Co., Deoghar. Learned counsel adds further that the falsity of the allegation would further confirmed from the fact that though the alleged transaction relates to the month of February 2001, but the present case was instituted after delay of over four years, in 2005.
(3.) COUNSEL for the opposite party no. 2 on the other hand submits that the facts of the case would confirm that though the goods were entrusted to the petitioners' road carriers for delivery to the consignee namely, Mahabir Kali and Co., Deoghar (Accused No. 3), but despite the specific instructions not to deliver the goods to the consignee, the present petitioners, in connivance with the said consignor, failed to return the goods to the complainant and have thus misappropriated the goods.;