- (1.) THE petitioner has invoked the inherent powers of this court under Section 482 of the Cr.PC for quashing the orders dated 18.8 2007/20.8.2007 passed by the Additional Chief Judicial Magistrate, Bermo at Tenughat in connection with Bermo P.S. Case No. 6 of 2005 corresponding to G.R. No. 39 of 2005, whereby cognizance of the offences under Sections 406, 420, 467, 468, 469, 471 and 120B of the IPC was taken against the petitioner and summons were issued against the petitioner directing him to appear and face trial for the aforesaid offences. Prayer has also been made for quashing the order dated 21.9.2007 whereby petitioner's bail bond was cancelled and non -bailable warrant of arrest was issued against him by the learned court below.
(2.) THE case was registered on the basis of the written report of the informant/opposite party no. 2 lodged at the police station on 9.1.2005 alleging inter alia that the petitioner being proprietor of M/s Urmila Petrol Pump at Kathara, requested the informant on 5.8.2001 to give friendly loan of Rs. 3.00 lakhs for 44 days to facilitate him to purchase petrol and diesel for his petrol pump. The informant agreed to give the amount. On the next day, the manager of the petrol pump namely Vyas Kumar came to the informant's shop. On telephonic instruction of the petitioner, the informant paid the sum of Rs. 1,80,000/ - in cash to Vyas Kumar besides a cheque for Rs. 1,80,000 / - in favour of M/s Urmila Service Station. The cheque was encashed on the same day and a demand draft was purchased in favour of Indian Oil Corporation on the account of M/s Urmila Service Station. After a week, the informant demanded refund of his money, but the petitioner sought for time and continued deferring payment for about 2 1/2 years. Ultimately, on 27.7.2004 the petitioner issued three cheques each for Rs. 1.00 lakh in favour of the informant towards repayment of the can amount. The informant did not present the cheques at the bank promptly on the request of the petitioner. It is alleged that on 22.12.2004 the informant came across a news item that the petitioner had lodged an FIR against his employee Vyas Kumar on the allegation that Vyas Kumar had committed cheating and criminal misappropriation of valuables from the petrol pump. Later, on 5.1.2005 the informant learnt also through another news item that Vyas Kumar had lodged an FIR against the informant with allegations of extortion. On being contacted by the informant, the petitioner allegedly denied to have received any amount from the informant declaring that the cheques referred to by the informant were forged. The allegation in the FIR against the petitioner was investigated and at the conclusion of the investigation, charge -sheet was submitted by the police on 24.11.2005 against the co -accused Vyas Kumar only keeping the investigation pending against the petitioner. Later, on 22.5.2007 the police submitted a supplementary charge -sheet in favour of tne petitioner showing "lack of evidence". The petitioner has challenged the impugned order of the learned court below on the ground that the order is thoroughly illegal and without jurisdiction. Shri Atanu Banerjee, learned counsel appearing for the petitioner, submits that the impugned order contains manifest error inasmuch as the learned Magistrate has gone beyond his jurisdiction to issue summons against the petitioner ignoring the fact that the police after investigation, had submitted final report stating "no evidence" against the petitioner and had not recommended the petitioner's trial for the aforesaid offences. Relying upon the judgment of the Supreme Court in the case of Kishori Singh and Others vs. State of Bihar reported in AIR 2000 Supreme Court 3725, learned counsel argues that the learned Magistrate could not have issued process against the petitioner who, though may have been named in FIR as an accused, but has not been charge -sheeted under Section 173 of the Cr. PC, since such powers were not available to the learned Magistrate at the stage of taking cognizance.
(3.) COUNTER -affidavit has been filed by the informant/opposite party no. 2 Prem Chand Agrawal denying and disputing the entire grounds as raised by the petitioner in the instant application, who has alleged that he was cheated by the petitioner in connivance with the accused Vyas Kumar and for which he had instituted a case at the police station for the offences under Sections 420 and 406 of' the IPC. The abovenamed deponent of the affidavit states further that that the petitioner is a habitual offender and as many as five separate cases at different police stations were instituted against the petitioner for the offence of cheating. It is also stated that earlier, in a similar case, the petitioner had filed a revision application before this court vide Cr. Revision No. 700 of 2007 which was heard and dismissed on 28.9.2007. Shri Mahesh Kumar Sinha, learned counsel representing the opposite party no. 2, submits that the instant application for quashing is not maintainable since the impugned order dated 18.8.2007/20.8.2007 is not an order of cognizance, but is essentially an order issuing process against the petitioner directing him to appear to face trial.;