The main legal point established is that the petitioner's actions constituted criminal breach of trust and insult under Sections 406, 420, and 504 I.P.C.

Abhijit Sinha, J.

1. The petitioner who is one of the accused of Complaint Case No. 708(C) of 2004 has prayed for quashing of the entire criminal proceedings including the order dated 5.11.2004 passed therein by Sri A.L. Yadav, Judicial Magistrate, 1st Class, Danapur, whereby he has taken cognizance under Sections 420, 406 and 504 I.P.C.

2. Ashok Kumar Singh, the complainant, impleaded herein as O.P. No. 2, filed the aforesaid complaint stating therein that he is the owner of a Cinema Hall running in the name and style of "Gautam Shree" at Bhakhityarpur which the accused No. 2 had taken on lease. It is alleged that on 28.9.2001, accused No. 3, Lallan Kumar (the petitioner herein) came to the house of the complainant and informed him that he had taken the said Cinema Hall on lease from accused No. 2 but due to paucity of funds he was not able to carry out the business properly and also stated that if he gave Rs. 50,000/- to accused No. 1 (the Cinema hall) then he would pay Rs. 5000/- per month as profit. Having discussed the matter with accused No. 2 he paid a sum of Rs. 49,900/- by bank draft on 3.10.2001 in the house of the petitioner. It is said that although 5-6 months passed by and petitioner did not pay a single farthing, he went to accused nos.2 and 3 where he was informed that the said Cinema Hall was running at a loss but assured that the entire amount as promised would be paid.

3. It is further alleged that since nothing was paid notwithstanding his several visits and requests demanding the money out of the profit they started avoiding payment under one pretext or the other whereupon the complainant requested them to return the principal amount but here to they started dilly dallying. Eventually, on 7.9.2004 when the complainant went to the house of the accused No. 2 to make a demand for return of the money he found the petitioner present there and when he demanded the money the accused persons abused him and categorically refused to handover any money.

4. It has been submitted on behalf of the petitioner that he was working as an employee in the said Cinema Hall and has been falsely implicated in this case which would be apparent from the perusal of paragraph-3, 5 and 8 of the complaint petition which were contradictory to each other. It was next sought to be submitted that although three persons were implicated as accused in the complaint petition, the learned Magistrate had taken cognizance only against the petitioner when it is clear that the bank draft for Rs. 49,900/- in the name of the Cinema hall was handed over to accused No. 2, namely, Shri Jain and the complainant has not enclosed any document to show that the petitioner had taken the said Cinema Hall on lease.

5. It was next sought to be submitted that the instant complaint was violative of the procedure laid down under Sections 154(1), (3) Cr.P.C. in view of the fact that every information regarding the commission of cognizable offence should be given to the Officer Incharge of the concerned Police Station and in the event of refusal to register a case by the Officer Incharge the substance of information in writing is required to be sent to the Superintendent of Police. I am not inclined to accept this submission made on behalf of the petitioner since the option lies with the complainant/informant to either file a complaint or give information to the concerned Police Station. No person can compel the complainant/informant to approach the Police Station instead of filing complaint.

6. It was next sought to be submitted that although the cause of action took place in the year 2001 and 2002 yet the complaint had been filed after long delay in the year 2004 and there was no explanation therefor and notwithstanding the same the learned Magistrate had taken cognizance only against the petitioner and not against those persons who had received the draft and had cashed the same.

7. Although O.P. No. 2 was duly served with notice and appeared by filing vaka