A complaint disclosing a prima facie case of cheating and criminal breach of trust cannot be quashed under Section 482 of the Code of Criminal Procedure.

M.Y.Eqbal, J.

1. In this application filed under Sec. 482 of the Code of Criminal Procedure,the petitioners have prayed for quashing of the order dated 29th February, 1996 passed by the Judicial Magistrate, 1st Class, Patna whereby and whereunder cognizance of the offence has been taken against all the petitioners under Secs. 406, 420 and 120-B, I.P.C. in Complaint Case No. 939 (C) of 1995.

2. The brief facts of the case are that on 31st October 1995, the complainant O.P. No. 2 filed a complaint petition in the court of learned Chief Judicial Magistrate, Patna alleging inter alia that the complainant who is the Managing Director of M/s. Sona Pharma Labs. Pvt. Ltd. had approached the Company M/s. Indian Drugs and Pharmaceuticals Ltd. (hereinafter to be referred to as the IDPL) for appointing him as Clearing and Forwarding agent for its production. According to the complainant, he was assured to be appointed as such according to the terms and conditions, as laid down in the agreement. It was further alleged that an agreement was entered into by and between the complainant and IDPL incorporating various terms and conditions and under the said agreement, the complainant O.P. No. 2 deposited Rs. 5,00000.00 . As per the terms and conditions of the agreement, he accepted that .the agency will start soon. The complainant is said to have approached the Sales Tax authorities and also the drug licensing authority but because of delayed and non-supply of document the licence could not be obtained and instead the petitioners demanded the articles of memorandum of Association which the complainant is said to have supplied but even then, there was no response. The complainant is said to have approached the petitioners on telephone with no result rather the Company went on doing its business through its Super Stockist at Patna and Muzaffarpur even after receiving Rupees five lacs as guarantee money from the complainant. The allegation further is that the complainant had to invest money for infrastructure for running this business and subsequently the agreement stood terminated by the Company. The complainant is said to have sufferred loss. The petitioners herein stated in the instant application that the complainant was examined under Sec. 200, Cr. P.C. and in his statement recorded under S.A. he stated that he received back Rupees five lacs with interest from the Company but the same was received by him under protest. It was further stated that when the complaint petition was filed, the same was sent by the learned Chief Judicial Magistrate to the Police for lodging F.I.R. under Sec. 156 (3), Cr. P.C. and thereafter a date was fixed for awaiting the report. However, when the report was not sent by the police, an application was moved by the complainant on 12.2.1996 stating that since the Police is not taking action and appears to be in collusion with the accused-persons and so the order be recalled. The learned Chief Judicial Magistrate without waiting for the report of the Police, recalled the order and transferred the case to the Judicial Magistrate, Patna in a most mechanical manner on 12.2.1996 itself. On 28.2.1996, the learned Judicial Magistrate recorded the statement of the complainant and the witnesses on S.A. and thereafter took cognizance by the impugned order.

3. learned Counsel for the petitioners submitted that the impugned order passed by the learned Magistrate taking cognizance is absolutely illegal and erroneous in law. The learned Counsel submitted that from the allegations made in the complaint petition, no case is made out under any of the provisions of the Indian Penal Code muchless under Secs. 406, 420 and 120-B. The learned Counsel submitted that the complainant has also filed money suit claiming damages for the alleged breach of contract and the complaint case has been filed only to humiliate the petitioners who are the top Officials of a Government of India Undertaking. On the other hand, Mr. Ram Balak Mahto,