CRIMINAL MISCELLANEOUS No.15303 OF 2005 In the matter of an application under Section 482 of the Code of Criminal Procedure. Bimal Prasad Gain, son of Sri Paujdar Jain, resident of village Digha, Police Station Pathnaha, District – Sitamarhi, at present posted as Junior Engineer, at Bahadurpur Block, District – Darbhanga. ------------Petitioner. Versus 1. THE STATE OF BIHAR 2. Md. Jakir, son of Late Din Mohammad, Resident of village – Ahila, P.S. – Bahadurpur, District – Darbhanga,-------------- Opposite Second Party. ------------Opposite Parties. WITH CRIMINAL MISCELLANEOUS No.34099 OF 2005 Md. Jakir, son of Late Deen Mohammad, resident of village – Ahila, P.S. – Bahadurpur, District – Darbhanga. --------------------Petitioner. Versus 1. THE STATE OF BIHAR 2. Sri Krishna Chandra Mishra, Executive Enginner, presently posted as Executive Enginner, R.E.O. Samastipur. 3. Binodanand Jha, Assistant Enginner, N.R.E.P. Darbhanga. --------------Opposite Parties. (In Cr. Misc. No. 153030 of 2005) For the petitioner : Mr. Ajay Kumar Thakur, Adv. Mr. Amit Kumar, Adv. For Opp. Party no.2 : Mr. Manoj Kumar, Adv. Mr. Dharmendra Jha, Adv. For the State : Mr. Atul Chandra, APP (In Cr. Misc. No. 34099 of 2005) For the petitioner : Mr. Manoj Kumar, Adv. Mr. Dharmendra Jha, Adv. For Opp. Party no.2 : Mr. Ajay Kr. Thakur, Adv. Mr. Amit Kumar, Adv. For the State : Mr. Damodar Pd. Tiwary, APP ******** P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ******** Akhilesh Chandra, J. Heard learned counsels representing the petitioners in both the cases, learned counsel for the opposite parties and learned Additional Public Prosecutor for the State. 2. Since both the cases are inter-related and one - 2 - common order of the courts below involved in both the cases it is being disposed of by this composite order. 3. The relevant short facts of the cases is that petitioner of Cr. Misc. No. 34099/2005 lodged a Complaint Case No. 28/2004 in the court of Chief Judicial Magistrate, Darbhanga against three persons respectively employed as Executive Engineer, Assistant Engineer and Junior Engineer in N.E.R.P. Darbhanga. Junior Engineer Bimal Prasad Gain, is petitioner in present case, whereas other two co-accused are opposite parties in later Criminal Miscellaneous filed by the complainant. 4. Complaint petition contends that since there was no Community Hall in the village Ahila for which the villagers through the complainant approached local MLA who was agreeable to provide fund subject to availability of suitable land accordingly as per para 2 of the complaint petition: Okknh vOnqy vtht islj eks0 vkye jkT;iky fcgkj ljdkj }kjk izkFkhZ ds uke ls fnukad 26. 4. 03 dks 9000/- :i;k esa 7 /kwj tehu [kjhn fd;k x;k ftldk QksVks izfr bl ukfylh ds lkFk layXu gS A 5. However, it is stated therein that a sum of Rs. 1,67,000/- was allotted for the purpose and since the complainant was a social worker. Executive Engineer accused no. 3 requested the complainant for construction and accordingly a sum of Rs. 75,000/- were paid in two installments respectively on 10.04.2003 and 15.04.2003, further he assured - 3 - that he has got approval of his superiors who are of the view that the person who has managed the land should be given opportunity to make construction and assured payment. Accordingly, construction which was initiated on 02.04.2003 could be completed on 20.08.2003 and the complainant requested for payment of remaining amount worth Rs. 92,000/- to the Junior Engineer but after initial assurances it finally refused to pay the amount on the ground that money is adjusted against commission from top to bottom, ultimately, the complaint was filed. 6. The court below after recording statement of the complainant on S.A. and other witnesses took cognizance against all the three accused persons for the offence under Section 406 of the Indian Penal Code against which the Junior Engineer accused no.3, petitioner no.3 here, preferred Cr. Rev. No. 204/2004 before learned Sessions Judge, who after hearing the parties by order dated 07.02.2005 modified the order to the court below to the extent that order taking cognizance against Executive Engineer and Assistant Engineer was set aside but remained uninterferred, so far Junior Engineer is concerned, giving rise to the present two application before this court instant filed by the Junior Engineer and later by the complainant, where one of the two opposite parties appeared but none participated in hearing. 7. Earlier hearing in both the cases commenced but adjournment was sought to produce the documents relating to transfer of land for the construction of Community Hall. Today, - 4 - by Supplementary Affidavit, it has been filed in later case showing that one registered deed of gift was brought into existence on 26.04.2003 wherein there are two executants one Abdul Aziz son of Md. Alam, another is Governor of Bihar, Patna, through the complainant, there is none as executee/beneficiary. 8. Learned counsel for the petitioner in the instant case, submitted that money was allotted from local MLA fund for construction of Community Hall which was to be done by the department itself and accordingly on completion of construction payment was made to the persons through whom work was done. There was no such authorization to the complainant to proceed with such work nor any amount is lying due or with ulterior motive complaint has been filed. Whereas learned counsel for the complainant submits that since the land was managed through the complainant, he was authorized by the Junior Engineer who is the person actually available at the spot, at whose instruction and supervision construction work was completed by complainant who received part payment but remaining amount is still lying with the accused persons who have misappropriated the same in collusion with each other and learned sessions Judge committed an error while exonerating the two other accused persons. 9. Learned Additional Public Prosecutor is also of same view and submitted that no interference in the order taking cognizance was required, moreover, even Revision was not filed by other accused persons before the learned Sessions - 5 - Judge. 10. From the plain reading of the complaint petition, it appears that whatever agreement as alleged between complainant and accused persons was entered into that was nothing but oral transaction mainly based on the said efforts made by the complainant in getting the land provided for such construction, but, as it appears from the copy of deed of gift executed on 26.04.2003 by two persons in favour of none is itself self-explanatory. Moreover, as per complaint petition payment to the complainant was made in two installments on 10.04.2003 and 15.04.2003, but the deed relating to such transfer itself was born on 26.04.2003. It further speaks a lot about application of judicial mind by the court taking cognizance. 11. The facts and circumstances stated above are sufficient to establish that order taking cognizance was passed without application of judicial mind and also without appreciation of the materials relevant for. So far order of learned Sessions Judge in Revision exonerating the two accused persons are concerned, mainly on the ground that on Revision was filed by such persons in concerned Revisional Court has jurisdiction to exercise its power even suo motu but, in the instant case, Revision was filed, matter was brought into notice of learned Sessions Judge who rightly exonerated the two accused persons but at the same time committed error in permitting to continue the proceeding against 3rd accused person i.e. petitioner in Cr. Misc. No. 15303/2005. - 6 - 12. In view of the above, order of the Revisional Court to the extent permitting the proceeding to continue against the Junior Engineer, petitioner here, is quashed and instant case is allowed and finding no merit and later case i.e. Cr. Misc. No. 34099/2005 is hereby dismissed without affecting the rights of the complainant petitioner to invoke jurisdiction of civil court for redressal of his grievances, if any, where his prayer, if made, shall be determining on their own merit without being prejudiced of any observation made above. Patna High Court Date: The 30th August, 2010 Rajeev/ (Akhilesh Chandra, J.)