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Judgment
Heard learned counsel for the petitioner and learned counsel for the State.
The present petition has been filed as to quash the order dated 04.05.2018 passed by learned Judicial Magistrate -1st Class, Raxaul at Motihari, in connection with Complaint Case No. 275/2017, CIS No. 9468/17, whereby and whereunder the learned court has been pleased to take cognizance of the offence under section 468 and 120B of the Indian Penal Code and issued summons against the petitioner.
The brief facts of the case is that on 14.09.2017, the complainant filed a complaint petition in the court of learned S.D.J.M., Raxaul at Motihari, East Champaran for the offences under sections 358, 465, 468 and 120(B) of the I.P.C. read with Section 65 & 66 of the Information Technology Act and named co-accused persons namely, Ritik Traders, Nirmal Prem Communication, Airtel Campus Plot No. 18 and Ravi Kumar with allegation that his uncle Sunil Kumar had Airtel SIM having No. 8002002222 and due to some technical fault, the same was sent to the mechanic at local market and when he received his mobile after seven days, it was not showing the tower location. It is alleged that when the uncle of the complainant went to the mechanic, he came to know that the SIM number, which was allotted to him, was allotted to accused no. 4 and all the accused persons under conspiracy using the said number wrongly. It is further alleged the uncle of the complainant had sent legal notice to all the accused persons, but despite of service of notice, they did not responded and after lapse of time, they demanded Rs. 70,000/-. The complainant further alleged that his uncle is a cloth merchant and for want of said number, his business is being affected and he was suffering irreparable loss. Hence, the complainant filed this complaint, which was registered as Complaint Case No. 275/2017.
On the basis of the averments as set through complaint and also considering the statement of inquiry witnesses, the learned trial court took cognizance against the petitioner for the offences punishable under sections 468 & 120(B) of the IPC vide its impugned order dated 04.05.2018.
It is submitted that as the petitioner failed to charge his mobile number for more than 90 days, as per telecom policy, the said number was allotted to this petitioner, which after allotment by using Mobile Network Portability (MNP) changed the earlier mobile network of Airtel to Aircell Company. It is submitted that with this limited allegation, it is said that this petitioner misusing mobile number which was earlier allotted to uncle of the complainant, and when he asked to return the same, he demanded Rs. 70,000/-.
It is further argued that petitioner obtained the present mobile number bearing No. 8002002222 after due submission of Consumer Application Form (CAF) and he is a valid customer. It is submitted that transfer was made in accordance with law and in accordance with policy of the company. It is further argued that in view of aforesaid allegation, no cognizable offence of the case is made out against the petitioner including offences punishable under section 468 of the IPC.
In support of his submission, learned counsel relied upon the legal report of Hon’ble Supreme Court as available through State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335].
It would be apposite to reproduce Section 468 of the Indian Penal Code, which reads as under:
“468.Forgery for purpose of cheating.—Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
It would further apposite to reproduce para 102 of Bhajan Lal’s case (supra), which reads as under:
“102.In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1)Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2)Where the allegations in the first informant report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code
(3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code
(5)Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent persons can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
In view of aforesaid factual submission and by taking note of the fact as prima facie no allegation of creating any forge documents appears available against this petitioner, who, as per telecommunication company’s rules, obtained mobile number which was earlier allotted to this petitioner, this Court is convinced enough that no criminal case is made out against this petitioner and, therefore, by taking guiding note of the golden principles of para no. 1, 3 & 7 of Bhajan Lal’s case (supra), the impugned cognizance order dated 04.05.2018 as passed by learned Judicial Magistrate - 1st Class, Raxaul at Motihari, in connection with Complaint Case No. 275/2017, CIS No. 9468/17 against the petitioner, is hereby set-aside/quashed.
Accordingly, this quashing petition stands allowed.
Let a copy of this order be sent to the learned trial court/court concerned immediately.