IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7286 of 2009 Rajesh Kumar Pathak, son of Late Kameshwar Pathak, Resident of Chhoti Nagpa, Sakram Chak, Police Station- Patna City, District- Patna. ……………..Petitioner. Versus 1. The State of Bihar. 2. Shyam Bihari Lal, son of Shyam Sundar Lal, resident of Mohalla Nayagaon, Police Station-Alamganj, District- Patna. …………Opposite Parties. For the petitioner :- Mr. Harish R.T., Advocate. Mr. Akshay Lal, Advocate. For the State :- Mr. Damador Pd. Tiwary, A.P.P. ----------- 6. 13. 4. 2011. Heard. 2. This is a petition for quashing the order dated 23.12.2008 passed in Alamganj P.S. Case No. 177 of 2007 (G. R.No.985 of 2007) by which petition for discharge under Section 239 Cr.P.C. has been rejected. 3. From perusal of the record it appears that Alamganj P.S.Case No. 177 of 2007 was lodged on the basis of a written report filed by the informant Shyam Bihari Lal, alleging that he had got 300 toddy trees from Mohalla- Malia Mahadev to Arfabad which used to be auction sold, but in 2007-08, the said trees were not auction sale for tapping toddy and Pradeep Chaudhary, Brahmdeo Chaudhary and one Rajesh Pathak, an Assistant 2 in Patna Municipal Corporation are tapping toddy trees causing loss of Rs. 50,000/-. On the said written report, F.I.R. was lodged. 4. However, subsequently a complaint petition was also filed by this complainant, Shyam Bihari Lal showing Pradeep Chaudhary and Brahmdeo Chaudhary as accused and alleging therein that toddy trees standing in Mohalla-Saidpur Malia Mahadev to Kadamkuan under Patna Municipal Corporation belongs to the complainant and witness no. 1 Smt. Malti Lal. There was an agreement in 1896 between Mukund Lal, (the ancestor of the complainant and Malti Lal) and Patna Municipal Corporation in which it was agreed that Mukund Lal to plant and protect fruit trees on the land and whatever earning may be made from the said trees half of the earning shall be appropriated to the Patna Municipal Corporation and half will go to grower and in pursuance of the said agreement, Mukund Lal grown toddy trees and other and income from the said trees used to be appropriated between Patna Municipal Corporation and Mukund Lal to the extent of half and half share. After death of Mukund Lal, the complainant and Malti Lal were 3 getting share. It is further alleged that trees used to be auctioned sale for tapping toddy trees and fruits by the Patna Municipal Corporation and income used to be appropriated between both the parties. But in 1971-72, Patna Municipal Corporation stopped paying share and for which a Title Suit No. 24 of 2003 was filed and in said Title Suit, an ex- parte decree was passed in favour of the complainant and after ex-parte decree the complainant and Malti Lal again got share, but the same was again stopped in the year 1995. It is further alleged that they had not auction sold trees of Malia Mahadev to Arfabad and it is alleged that accused persons, though, have not taken the trees auction sold, tapping the toddy trees and hence the accused persons committed theft causing loss. 5. However, after investigation, Police submitted charge sheet in Alamganj P.S. Case No. 177 of 2007 and after submission of the charge sheet, cognizance was taken and summons were ordered to be issued. 6. Learned counsel for the petitioner filed a petition filed by the petitioner under Section 239 Cr.P.C. on the ground that accepting the allegation no offence is made out against the petitioner. The petitioner is an 4 Assistant of Patna Municipal Corporation and deputed in Sairat settlement. The case of the petitioner in the F.I.R. filed under Alamganj P.S. Case No. 177 of 2007. Complaint Case No. 396 of 2007 is that ancestor of the complainant grown the tree on the land in view of an agreement with Patna Municipal Corporation and the Patna Municipal Corporation will be proprietor and shall auction sold the fruit, cut the tree and remove the tree and ancestor of the complainant shall only entitle to half of the sale proceed and Sairat settle by Patna Municipal Corporation and even security deposit made to the tune of Rs. 20,000/- and Rs. 8000/- and accused Brahmdeo Chaudhary and Pradeep Chaudhary both deposited Rs. 1870 and Rs. 5,000/- for taking settlement. 7. In the impugned order the petition under Section 239 Cr.P.C. was rejected on the ground that charge sheet has been submitted and cognizance has been taken under has been taken under Section 379, 427/34 of the Indian Penal Code and as per para 4, 6, 8, 19 and 25, the complicity of the petitioner is apparent. 8. Learned counsel for the petitioner however submits that neither there is place of occurrence nor time 5 of occurrence has been mentioned either in the written report of the complainant nor in the complaint petition nor in the case diary and allegations are general and vague. It has further been contended that there is specific material about agreement between Patna Municipal Corporation and Mukund Lal, ancestor of the complainant where Mukund Lal agreed to plant and protect fruit trees on the land belonging to the Municipality appertaining to both side the main drain outside the riding track on condition that half of the produce of the trees shall be property of the Patna Municipality and other half will be appropriated to the grower and Patna Municipality will be Proprietor of the trees . The Municipality will have power to cut, remove and auction the trees whenever it requires and half of the sale proceeds of such trees will be credited to the Municipality and the other half will be appropriated by the grower. 9. The learned counsel for the petitioner submits that the learned court below did not taken into consideration that the right of the complainant flow from contract between his ancestor and Patna Municipal Corporation in which Patna Municipal Corporation has got 6 the right of proprietorship and right to auction sale and complainant only entitle to half of sale proceed and hence is only entitle to half of it, but this aspect has not been considered and that allegation is with regard to breach of contract. 10. However, the allegation that this petitioner Rajesh Pathak along with Pradeep Chaudhary and Brahmdeo Chaudhary are selling by theft by tapping toddy in 300 Toddy trees of Mohalla Malia Mahadeva to Arfabad. However, it has come in case diary that the petitioner is admittedly an Assistant of Patna Municipal Corporation and engaged in Sariat work for settlement. In para 4 of the case diary, it is apparent that there was an agreement between ancestor of complainant and Patna Municipal authority. However, ancestor of complainant shall plant and protect trees on the land of Municipality and the income from the said trees shall be apportioned to the ancestor of complainant to the extend of half earned from auction sale and the Patna Municipal Corporation shall be proprietor and shall auction sale the fruit of the trees. The Patna Municipal Corporation used to auction sale the toddy tree and hence right of the complainant flow 7 from contract. Moreover, there is neither any mention of time of occurrence and place of occurrence for theft or mischief causing damage of toddy or mischief by tapping toddy, hence evidence produced is not sufficient and further allegation in para 6 and 7 of case diary that petitioner is clandestinely misappropriating the Government money, hence the material or evidence produced is vague and is not sufficient and the right of the complainant flow from a contract any breach give rise to civil dispute. However, the learned lower court has not considered this aspect of the matter and hence the impugned order is set aside and petition is allowed. m.p. ( Gopal Prasad, J.)