- (1.) HEARD learned senior counsel appearing for the petitioner, learned counsel for O.P. No. 2 and the learned counsel for the State. This application has been filed for quashing of the order dated 17/09/2007, passed by the then Judicial Magistrate, 1st Class, Jamtara, in P.C.R. Case No. 128 of 2007, whereby and whereunder cognizance of the offence punishable under Section 420 of the Indian Penal Code has been taken against the petitioner.
(2.) IT is the case of the complainant that when this petitioner represented to the complainant that if Rs. 2 lakhs are paid to him a petrol pump dealership of Indian Oil Corporation at Nala would be allotted to her. On such assurance, Rs. 2 lakhs was paid to the petitioner but she was never allotted any petrol pump by the Indian Oil Corporation. When the dealership was not allotted to her, she asked the petitioner to refund the money but he refused to return the same. On such allegation, one P.C.R. Case No. 269 of 2006, was lodged, which was dismissed on 10/01/2007, when the complainant failed to adduce any witness in course of enquiry. After dismissal, second complaint bearing P.C.R. Case No. 128 of 2007, was lodged in which cognizance was taken against the petitioner vide order dated 17/09/2007, which is under challenge. Learned senior counsel appearing for the petitioner submits that there has been no doubt that second complaint can also be filed with respect to same allegation but it could have been filed only in a situation where there is manifest error, manifest miscarriage of justice and new fact, which the complainant had no knowledge of or could not with reasonable diligence have brought forward in the previous proceeding or it is manifestly absurd and unjust. But, here the second complaint was lodged without there being any manifest error in the order under which the first complaint was dismissed.
(3.) LEARNED senior counsel in this respect referred to a decision rendered in a case of "Mahesh Chand Vs. B. Janerdhan Reddy and another reported in (2003) 1 SCC 734". Learned senior counsel submits that since the second complaint never falls within any of the categories as laid down by the Hon'ble Supreme Court, the order taking cognizance certainly suffers from illegality.;