IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.18883 of 1999 SANJAY KUMAR SRIVASTAVA, S/O SHRI JANG BAHADUR PRASAD, R/O- VILLAGE, BERIA, P.S.VIJAIPUR, AT THE MOMENT RESIDING AT MIRGANJ, P.S.MIRGANJ, DISTT-GOPALGANJ………….………PETITIONER Versus 1. STATE OF BIHAR 2. SMT. URMILA DEVI, W/O SHRI SUBHASH CHANDRA SRIVASTAVA, R/O BANKAHA, P.O. RAJAPUR, P.S.KATEYA, RESIDING AT HARKHAULI PATH, MIRGANJ, P.S.MIRGANJ, DISTT- GOPALGANJ………………………………………….OPPOSITE PARTIES. ----------- For petitioner:- Mr. Y.V. Giri, Sr. Advocate Mr. S.K. Giri, Advocate For State:- Damodar Pd. Tiwary, APP ----------- 5. 29-Apr-2010 Heard learned counsel for the petitioner and learned counsel for the State. 2. Although the name of counsel for the Opposite Party No.2, Complainant is printed in the daily cause list but he does not appear. 3. Petitioner has prayed for quashing of order dated 8.7.1999 by Judicial Magistrate, 1st Class, Gopalganj in Complaint Case No. 1402/1996/Tr. No. 329/1999 whereby prayer of the petitioner for discharge from the criminal case under Section 406, 323, 403, 504 and 420 of the IPC was rejected. 4. Learned senior counsel Mr.Giri appearing for the petitioner has submitted that the present case has been - 2 - lodged with apparent incorrect allegations with a view to raise a claim over school and its property which are governed by a trust created through a deed of trust dated 20th July, 1993. A copy of that trust deed has been enclosed as Annexure-4 and the original registered deed was produced for perusal of the Court. 5. It has further been submitted that a careful reading of the complaint petition would show that the complainant has purposely suppressed as to when the land for school was purchased. Annexures-3 and 3/a contain two sale deeds executed in April, 1993 in the name of the petitioner and the deed of trust mentions the same property as the property of school whereas according to complaint petition the alleged occurrence of cheating of money so as to purchase land not in the name of the school but in the name of the petitioner is said to have taken place between 1.12.1994 and 10.10.1996. A certified copy of plaint of Title Suit No. 258/1998 was produced to show that the husband of the complainant as one of the plaintiffs filed a suit against the petitioner in the year 1998 much after filing of the present complaint petition in which the allegations - 3 - and claim against the petitioner is only of taking money and not rendering accounts without any reference to any land wrongly purchased by petitioner in his own name. 6. Besides raising the plea of mala fide prosecution, learned senior counsel for the petitioner has further submitted that the substance of the allegations in the complaint petition is to the effect that money advanced to the petitioner for benefit of the school has been defalcated because the petitioner has not given proper account of such money. It has been submitted that the suit filed for accounting and claim for giving money back has stood dismissed and even subsequent suits filed by the husband of the complainant have been dismissed for want of prosecution. 7. Since the complainant has not filed any reply to this application and the counsel for the complainant has also not appeared, the genuineness of the documents annexed as annexures to this application cannot be doubted. On the basis of those documents which support the aforesaid contentions, it is found that at least part of the allegations made in the complaint petition that between - 4 - 1994-1996 the petitioner purchased land for the school in his own name stands falsified by the unimpeachable registered documents such as sale deeds and deed of trust. So far as the remaining allegation of not giving accounts for the alleged advance of money by the complainant, there appears substance in the submission advanced on behalf of the petitioner that such claim is purely a civil claim for which the husband of the complainant filed a civil suit and according to petitioner such suit and even subsequent suits have been dismissed. 8. Considering all the facts and circumstances of the case, the submissions advanced on behalf of the petitioner are found to have merits. This application is, accordingly, allowed. The impugned order is quashed and criminal proceeding against the petitioner is also quashed. perwez (Shiva Kirti Singh,J.)