- (1.) HEARD learned counsel appearing for the petitioner and learned counsel appearing for the opposite party no.2 and also learned counsel appearing for the State. This application has been filed for quashing of the order dated 10.2.2012 passed by the then Judicial Magistrate, 1st class, Deoghar in P.C.R case no.240 of 2011 whereby and whereunder cognizance of the offences punishable under sections 323, 379, 504 of the Indian Penal Code has been taken. Before adverting to the submission advanced on behalf of the parties, the case of the complainant needs to be taken notice of.
(2.) IT is the case of the complainant that the petitioner, proprietor of M/s. Rishi Enterprises a consignee agent of M/s Nelson Food Products Company Limited entered into a go-down of the complainant and ordered his two associates to take all the cartoons containing toffees which they had supplied to the complainant for sale in the market through his distributor and agent. Meanwhile, the complainant reached over there. As soon as he reached over there, the petitioner caught hold of his collar and started assaulting with fists and slaps. The complainant tried to pacify him but the petitioner instead of being composed became so furious that he created havoc over there. Further it has been alleged that the petitioner snatched away the golden chain from the neck of the complainant and then got the cartoon containing toffee scattered by kicking it. On such allegation, cognizance of the offence punishable under Sections 323, 379 and 504 of the Indian Penal Code was taken vide order dated 10.2.2012 which is under challenge. Learned Sr. counsel appearing for the petitioner submits that the instant prosecution has been lodged maliciously for the reason that the petitioner, proprietor of M/s. Rishi Enterprises a consignee agent of M/s. Nelson Food Products Company Limited had supplied toffee to the petitioner for which a cheque of Rs.51,000.00 had been given in the name of the petitioner. On deposit of the said cheque, it got dishonoured and thereafter a notice was given to the complainant calling upon him to make payment but when the payment was not made, a complainant was lodged on 17.1.2011 in which summon was ordered to be issued on 3.2.2011. Thereupon the complainant having come to know about the lodgment of the case under Section 138 of the Negotiable Instrument Act has filed this complaint on 19.4.2011 with an ulterior motive and thereby the order taking cognizance is fit to be quashed in view of the decision rendered in a case of State of Haryana and others vs. Bhajan Lal and others [1992 Supp (1) SCC 335].
(3.) AS against this, learned counsel appearing for the opposite party no.2 submits that the case in which cognizance has been taken against the petitioner has nothing to do with the case lodged under Section 138 of the Negotiable Instrument Act by the petitioner against the complainant, rather the case was lodged when altogether different cause of action accrued when the petitioner by entering into go-down of this petitioner not only assaulted the complainant but also snatched golden chain and thereby every ingredients are there in the complaint for constituting offences under which cognizance has been taken and in such situation, any plea being taken by the petitioner of case being lodged malafidely will have no bearing. In support of his submission a decision rendered in a case of Renu Kumari vs. Sanjay Kumar and others [(2008)12 SCC 346] was referred to. Further it was submitted that where a complaint does constitute offence of which cognizance has been taken, it never warrants to be quashed by the High Court in view of the decision rendered in a case of K. Ashoka vs. N.L. Chandrashekar and others [(2009) 5 SCC 199]. Similar view has been taken by this Court in a case of Mahabir Singh vs. State of Jharkhand and others, (Cr.M.P.No.603 of 2011).;