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Heard learned counsel for the petitioners, learned counsel for the State and learned counsel for the opposite party no. 2.

2. This application under Section 482 of the Code of Criminal Procedure (For short “the Code”) is directed against the order dated 12.12.2011 passed by the learned Judicial Magistrate-1st Class, Patna City, Patna in Complaint Case No. 779 of 2011 whereby finding a prima facie case to be made out under Sections 406, 420, 120B and 323 of the Indian Penal Code, the petitioners have been summoned under Section 204 of the Code to face trial.

3. The aforesaid complaint case was filed on 12.08.2011 by the opposite party no. 2 Sudhir Kumar stating therein that he was acquainted with the petitioners from before. They were in need of Rs. 1,10,000/- for purchase of a piece of plot. They requested the complainant to give them a friendly loan for the said amount in the year 2006. Because of the acquaintance from before, the complainant advanced the loan to the petitioners in three instalments on the understanding that the loan will be repaid within six months. On expiry of six months, the complainant met the petitioners with a request to refund back the said amount but the petitioners refused to repay the loan.

4. While being examined on oath, in reply to the question put by the Court, the complainant has stated that the relationship of his brother with his wife is cordial. He has also stated that he is not aware of the fact as to whether any criminal case has been instituted by the accused persons against him or his family members. He could not disclose the details of the land which was to be purchased by the accused persons. He conceded that there is no documentary proof with him to support the fact that any amount was ever given to the accused persons as loan.

5. In course of inquiry, three witnesses were examined on behalf of the complainant. After completing the inquiry under Section 202 of the Code of Criminal Procedure, the impugned order dated 12.12.2011 was passed by the learned Magistrate summoning the petitioners.

6. Learned counsel for the petitioners has contended that the allegations made in the complaint are patently absurd. Though the complainant claims to have advanced the friendly loan to the petitioners in 2006 but the complaint has been filed after lapse of more than five years on 12.8.2011. He has submitted that it is an admitted position that there is no documentary proof regarding the fact that any amount was ever advanced as loan by the complainant to the petitioners. He contended that one Sunita Devi lodged Complaint Case No 875(c) of 2010 before the learned A.C.J.M., Hilsa, Nalanda on 01.10.2010 against her husband Subodh Kumar, his elder brother Sudhir Kumar (complainant), the inquiry witness Nand Lal Sao and others under Section 498-A of the Indian Penal Code (For short “IPC”). In that case, after taking cognizance under Section 498-A IPC on 10.03.2011 against the complainant and his family members, the learned S.D.J.M. summoned the accused persons for trial. It was only after the summoning order was passed in the aforesaid complaint case, the present complaint has been filed. It is submitted that said Sunita Devi is the daughter of petitioner nos. 1 and 2 of the present case, whereas petitioner no. 2 is her brother. It is submitted that the instant complaint has been maliciously instituted with ulterior motive.

7. On the other hand, learned counsel for the opposite party no. 2 has submitted that though a complaint was filed by Sunita Devi against the complainant and others, while taking cognizance the complainant was not summoned to face trial. He has submitted that since the accused persons are closely related to the complainant no legal document in respect of advancement of loan was prepared but that would not absolve the petitioners from discharging their liability to repay the loan amount. He contended that the allegations made in the complainant have duly been supported by the c