CRIMINAL MISCELLANEOUS No.16711 OF 2002 -------- In the matter of an application under section 482 of the Code of Criminal procedure. -------- ANJANI KUMAR SINHA son of Late Bageshwari Prasad,Sub-Inspector or Government Servant to the Excise Department,Bihar Government,Chapra, husband of Smt.Meera Kumari Sinha,(land owner), resident of Road no.1 Chandmari Road, House of Late Jagdish Prasad Sinha, P.S.Kankarbagh, District Patna …… …….Petitioner Versus 1.MR.UDAI NARAIN SINHA, Proprietor of M/s Kumar Building Construction Regd.office, at 6 Officer’s Flat Market Building Road, adjacent to Patna High Court, Patna 800001 son of Sri Krishna Muari Prasad Singh, resident of village Shambhupura, P.O.- Tisarkera, P.S.-Naubatpur,District Patna 2. The State of Bihar ….. ……..Opp. parties. ------- For the petitioner : Mr. Suraj Narayan Yadav For O.P.No. 2: Mr.Rama Kant Sharma, Sr.Advocate Mr.Mritunjay Kumar For the State : Mr.A.M.P.Mehta, Addl.P.P. --------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR --------- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 24.5.2002 passed by Sri V.K.Mishra, Judicial Magistrate, Ist Class, Patna in Complaint Case No.460C of 2002. By the said order the learned Magistrate has taken cognizance of the offence under section 420 of the Indian Penal Code and summoned the petitioner. 2. Short fact of the case is that opposite party no.1, who was proprietor of M/s Kumar Building Construction, filed a complaint in the court of Chief Judicial Magistrate, Patna which was numbered as Complaint Case No.460C of 2002. In the 2 compliant, the complainant had arrayed the petitioner, his wife and his brother-in-law as accused nos. 1, 2 and 3 respectively. It was alleged in the complaint petition that he had taken land of the petitioner for developing and constructing a building under an agreement on 5.2.2001 and thereafter he started construction work. It was asserted that as per terms and conditions of constract, the petitioner did not make payment to the complainant and, thereafter, dispute arose between the parties. On 9.3.2002 a proceeding under section 144 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) was also initiated. It was alleged that prior to initiation of the proceeding under section 144 Cr.P.C. since payment was not made by the petitioner, the complainant had stopped the work and put a lock on the gate of site. However, the petitioner along with 10-12 persons on 6.3.2002 forcibly broken the lock and trespassed and attempted to start re- construction work through other agency. In the complaint it was further disclosed that about Rs.5,48,188/- remained outstanding. However, on 29.5.2001 the petitioner made payment of Rs.2,32,500/- and thereafter the petitioner never made further payment to the complainant. The complainant in his complaint petition had also stated that for realization of due amount on 31.1.2001 he has filed money suit against the petitioner. On the aforesaid allegation, the complaint was filed. After filing the complaint, the complainant was examined on solemn affirmation and in support of his complaint case, he got examined two witnesses and thereafter the learned Magistrate by order dated 3 24.5.2002 took cognizance of the offence under Section 420 of the Indian Penal Code only in respect of the petitioner. 3. Aggrieved with the order of cognizance the petitioner approached this court by filing present petition. On 16.12.2002 while issuing notice to opposite party no.1 it was directed that in the meantime further proceeding in complaint case no. 460C of 2002 pending in the court of Judicial Magistrate, Patna, shall remain stayed. On 15.3.2004 lower court record was called for which was subsequently received and on 10.11.2004 the case was admitted for hearing. While admitting the case it was directed that during the pendency of this application, the interim order passed on 16.12.2002 shall continue. The order of stay is still continuing. 4. Mr. Suraj Narayan Yadav, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance and initiation of criminal proceeding against the petitioner, at the very outset has argued that only fault on the part of the petitioner was that he entered into an agreement with the complainant for construction of a building over his land. Even the petitioner had already made payment of Rs.2,32,500/- which was the actual amount. After the building in question was partly constructed, the complainant with an oblique motive filed the present petition not only against the petitioner but even against his wife and his brother-in-law. Learned counsel for the petitioner on the basis of the averment made in paragraph 2 of the complaint petition, submits that the complainant had undertaken for 4 construction work on 5.2.2001 which was continued for some time. Without any rhyme and reason, the construction work was stopped by the complainant and thereafter the complainant also filed a money suit. As per the complaint petition a proceeding under Section 144 of the Cr.P.C. was got initiated. It was further submitted that it is an admitted stand of the complainant that Rs.2,32,500/- was already paid to the complainant, even then the complainant had alleged as if the petitioner has committed offence under Section 420 of the Indian Penal Code. In view of the facts as well as averments made in the complaint petition, it has been argued that no offence of cheating is made out but the learned Magistrate without application of mind has passed the impugned order. It was argued that on the basis of entire materials available in the complaint petition, the statement of the complainant on solemn affirmation and deposition of two witnesses, who were examined on behalf of the complainant, no case under Section 420 of the Indian Penal Code is made out. It was submitted that in view of disclosure of no offence, the order of cognizance is liable to be set aside. 5. Mr.Rama Kant Sharma, learned senior counsel appearing on behalf of opposite party no.1 has vehemently opposed the prayer of the petitioner. It was submitted by learned senior counsel that right from the very beginning of the agreement the intention of the petitioner was to cheat the complainant and as per his persuasion the complainant started construction work but after the commencement of the work, no payment was made and 5 without making payment the petitioner wanted to get further construction from the stage of construction already made by the complainant by a third agency and as such according to him the learned Magistrate has rightly taken cognizance of the offence. 6. I have heard Mr.A.M.P.Mehta, learned Additional Public Prosecutor appearing on behalf of the State. 7. Besides hearing learned counsel for the parties, I have also perused the materials on record. In this case, by order dated 15.3.2004, lower court record was called for which is lying with the record of the case. I have also examined the lower court record. From the record it appears that the present complaint was filed on 11.3.2002. Thereafter the learned Chief Judicial Magistrate under Section 192(1) of the Cr.P.C. transferred the case to the court of Sri V.K.Mishra, Judicial Magistrate, Ist Class, Patna. On 4.4.2002 the complainant’s statement on solemn affirmation was recorded. Thereafter two witnesses were examined at the enquiry stage. Witness no.2 was examined and discharged on 19.4.2002. After the last witness was discharged, a petition on behalf of the complainant was filed under Section 311 of the Cr.P.C. on 21.5.2002 for recalling the complainant for bringing the relevant material on record which was allowed by the learned Magistrate on the same date i.e. on 21.5.2002 and thereafter on 22.5.2002 the complainant was further examined on solemn affirmation and the complainant brought on record certain documents, particularly, estimate statement which was prepared by the complainant and receipt of refusal of receiving of the legal 6 notice etc. The court is of the view that after examining the complainant the learned Magistrate was not required to entertain the petition for recalling of the complainant under Section 311 of the Cr.P.C. that too in such a hurried manner. However, this Court is not recording any finding or any opinion on this very point. After going through the entire complaint petition, the Court is of the opinion that no offence under Section 420 of the Indian Penal Code is made out. Had there been any intention on the part of the petitioner to commit an offence of cheating, there was no question of making payment of Rs.2,32,500/- to the complainant which has been admitted in the complaint petition itself. It was hardly a dispute in respect of settlement of account and on such allegation, the learned Magistrate was not at all required to proceed with the case. Before taking cognizance of the offence it was necessary to examine the entire materials. From the facts of the present case, the court is satisfied that the learned Magistrate has committed grave error in proceeding with the present case. 8. Accordingly, the order of cognizance dated 24.5.2002 passed by Sri V.K.Mishra, learned Judicial Magistrate, Ist Class, Patna in Complaint Case No.460C of 2000 and the entire criminal proceeding is set aside and the petition stands allowed. Patna High Court, The 30th September,2010 Md.S./NAFR ( Rakesh Kumar, J.)