Sanjay Kumar, J.

1. Heard Sri Rajeev Ranjan Prasad, learned counsel for the petitioner, Mr. Yogendra Singh, learned APP for the State as well as Mr. Rajesh Kumar Sinha, learned counsel for the informant. Petitioner seeks quashing of order dated 19.7.2011 passed by Sri Sharad Chandra Kumar, Judicial Magistrate, 1st Class, Jamui in Case No. 383(C) of 2011 as also the entire criminal prosecution whereunder the Magistrate finding prima facie case for the offence under Sections 403, 409, 467/34 of the IPC ordered for issuance of summons against the petitioner and other co-accused.

2. The facts in brief is that the complainant/Opposite Party No. 2 filed a complaint case on the file of learned Chief Judicial Magistrate, Jamui alleging therein that being policy holder of Life Insurance Corporation of India, Jamui Branch, he received payments on two occasions but he was not paid an amount of Rs. 40,000/- as final payment. It is alleged that on repeated inquiry, the complainant was assured that he would receive the cheque, but later on it was found that the cheque issued by the Opposite Party was received by the agent. The complainant approached the accused persons one by one but accused Nos. 2 and 3 abused the complainant and threatened to implicate him in a false case. The complainant gave a written notice to the Divisional Manager, Life Insurance Corporation of India on 11.2.2011 which was not replied. The brother of the complainant received an envelope on 3.3.2011 which on opening was found empty. The complainant thereafter, suspecting some foul play on the part of the accused persons, filed the complaint case. The Magistrate examined the complainant on solemn affirmation and three more witnesses. After inquiry, the Magistrate found prima facie case for the offence under Sections 403, 409, 467/34 of the IPC and ordered for issuance of summons.

3. The learned counsel for the petitioner submits that from the complaint petition itself, it would appear that there is no allegation of misappropriation of money or criminal breach of trust or commission of an act of forgery. The complainant had lodged the case against the Branch Manager of LIC without mentioning the name of person who allegedly chaired the said post on the relevant date. The petitioner has been summoned without any basis. He further submits that a cheque for an amount of Rs. 40,000/- vide cheque bearing No. 173099 dated 28.12.2000 was sent to the complainant (Opposite Party No. 2) through the agent to deliver the same to the complainant. As the policy holder refused to receive the cheque, the same was sent to him by speed post. The complainant has falsely alleged that the envelope received under speed post was an empty one. The complainant has filed a complaint case No. 11 of 2012 also before the District Consumer Forum, Jamui under the provision of Consumer Protection Act, 1956 for redressal of his grievance. The insurance company again issued another cheque bearing No. 42000595 dated 2.12.2012 for Rs. 40,000/- which on refusal has been filed before the court below and so no case of misappropriation of is made out against the petitioner or any employee of Insurance Company. He further submits that in view of provisions of Section 47 of Life Insurance Corporation Act, 1956 the complaint case is not sustainable in the eye of law and so the order issuing summons is fit to be quashed.

4. The APP on the other hand opposed the submissions. It has been submitted that as the Insurance Company mala fide withheld the last payment and they are liable to be prosecuted.

5. On perusal of the materials on record, I find that the grievance of the complainant/Opposite Party No. 2 is that the last instalment of Rs. 40,000/- has been withheld by the Life Insurance Company. From the submission of learned counsel for the petitioner, it appears that the Insurance Company had already issued a cheque for an amount of Rs. 40,000/- in favour of the complainant. In course of submissions, the co