Rongon Mukhopadhyay, J. - (1.) Heard Mr. S.L. Burnwal, learned senior counsel appearing for the petitioners and Mr. Ajit Kumar, learned, A.A.G. for the Respondent-State as well as Mr. P.P.N. Roy, learned senior counsel for the Respondent no. 2.
(2.) In this application petitioners have prayed for quashing the entire criminal proceeding in C.P. Case No. 228 of 2007 including the order dated 04.01.2010 passed by the learned Judicial Magistrate 1st Class, Giridih whereby and where under cognizance has been taken for the offence punishable under Section 406 of the Indian Penal Code.
(3.) It has been submitted by the learned senior counsel for the petitioners that the impugned order taking cognizance is being challenged basically on three points. Submission has been advanced that the order taking cognizance is barred in view of Section 468 of the Code of Criminal Procedure. The case under Section 406 IPC is not made out as there is no entrustment and in view of the fact that a civil suit had already been preferred by the complainant, initiation of criminal proceeding is bad in law. While elaborating the points learned senior counsel for the petitioners has submitted that so far as the question of limitation is concerned the occurrence is alleged to have been taken place some time back in the year 2006 whereas the cognizance has been taken on 04.01.2010 which is beyond the period of three years as envisaged under Section 468 of the Code of Criminal Procedure. Learned senior counsel submits that the delay could only be condoned when proper application is made before the learned Magistrate and after giving opportunity of hearing to the petitioners the same could have been condoned in terms of Section 473 of the Code of Criminal Procedure. As regards the non-applicability of Section 406 is concerned, it has been submitted that the defence witnesses which include the Registrar have categorically stated that there was no entrustment of money. In such circumstances, Section 406 of the Indian Penal Code is not made out against the petitioners. Learned senior counsel for the petitioners further submits that a suit for specific performance of contract has already been initiated by the complainant and since the complainant had taken recourse to an appropriate remedy available under law, no criminal proceeding under such circumstances could have been initiated against the petitioners. It has further been submitted that the allegation in the complaint petition, therefore, in view of the averments made in the complaint petition which reveals only existence of a civil dispute, the entire criminal proceeding deserves to be quashed and set aside.;