The lack of new materials to justify taking cognizance after previously dismissing a complaint petition rendered the entire criminal proceeding invalid as far as the petitioner was concerned.

JUDGMENT :

Inspite of valid service of notice, O.P. No. 2 has not appeared. On 21.06.2022 and 21.03.2023 the matter was adjourned with a view to provide one more opportunity to the O.P. No.2.

2. Today on repeated calls, nobody appeared on behalf of the O.P. No.2 that is why the matter is being heard on merit.

3. Heard Mr. Prashant Pallav, learned counsel for the petitioner and Mrs. Shweta Singh, learned counsel for the State.

4. This criminal miscellaneous petition has been filed for quashing of entire criminal proceeding including order taking cognizance dated 17.09.2008 passed in connection with P.C.R. Case No. 416 of 2006, pending in the Court of learned Chief Judicial Magistrate, Deoghar.

5. The complaint petition has been filed alleging therein that the complainant to have entered into a sale with the accused persons namely, Shiv Kumar Ruiya and the present petitioner the Mahendra Kumar Ruiya for a property known as Ruiya Dharmshala Building. It was alleged that the accused persons were appointed as a receiver by the Hon’ble High Court of Kolkata and in the capacity of being receiver the accused persons made proclamation and advertisement to sell the vacant land of Ruiya Dharmshala and pursuant to such proclamation the complainant entered to an agreement for sale for an agreed consideration amount of Rs. 1.05 crores and the complainant and his associates paid Rs. 7.00 lakh through cash and draft but thereafter the accused persons are alleged to have avoided and executing the sale deed nor have refunded back the advance consideration amount. On these allegations, the complaint was filed.

6. Mr. Prashant Pallav, learned counsel appearing for the petitioner submits that the petitioner has unnecessarily been made accused in the complaint case. He submits that the petitioner was appointed as a receiver for administering the suit property in a suit no. 70/1996 by the order of the Hon’ble Calcutta High Court vide order dated 19.08.1997 and thereafter vide order dated 20.02.2003 the Hon’ble Calcutta High Court appointed one Shiv Kumar Ruiya as joint receiver for administering the suit property. He further submits that the petitioner has not signed any agreement in favour of the complainant nor he received any single farthing from the complainant and hence the whole case against the petitioner is ill founded and illegal. He submits that the main allegation is against Shiv Kumar Ruiya who is not petitioner in the present petition. He further submits that the money alleged to have been paid by the complainant appears to have been received by Shiv Kumar Ruiya. He further submits that detail of amount of Rs. 7.00 lakh through bank draft suggests that it has been received by Shiv Kumar Ruiya. He submits that none of this draft has been credited in the account of the receiver and therefore, fastening any liability against the petitioner will amount abuse of process of law. He further submits that notice has been received by the petitioner on 17.10.2005 for executing sale deed in favour of the complainant which has been replied by the petitioner denying all the claim of the complainant against the petitioner. He further submits that the learned court has been pleased to dismiss the complaint by order dated 28.03.2007 under section 203 of the Cr.P.C. observing that the matter is civil in nature. He further submits that the said order was challenged before the learned Sessions Judge in criminal revision and the learned Sessions Judge has been pleased to set aside the order dated 28.03.2007 and the remanded the matter to make further enquiry. Thereafter, the learned court has taken cognizance against the petitioner. He submits that once the order of the learned Sessions Judge was there the learned court was having no option and has taken cognizance.

7. Learned counsel for the respondent-State submits that on the remand the learned court has taken cognizance and there is no illegality in the cognizance order.

8. In view of above submission of the le