CRIMINAL MISCELLANEOUS No.34963 OF 2002 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- SRI BHAGWAN SINGH S/O SRI RAMESHWAR SINGH PRINCIPAL GOVT. POLYTECHNIC, DARBHANGA. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. SECRETARY, DEPARTMENT OF SCIENCE AND TECHNOLOGY NEW SECRETARIAT,PATNA. 3. B GATES INFOTECH SYSTEM INTEGRATORS PRIVATE LIMITED, 32 VAIBHAV APARTMENTS, BUDHA MARG, PATNA – 800 001 REPRESENTED BY ITS DIRECTOR MR. MANOJ KUMAR SARAF SON OF LATE LAKSHMI PRASAD SARAF, RESIDENT OF 510 SHANTI VIHAR APARTMENT OFF FRAZOR ROAD PATNA, P.S. KOTWALI, PATNA – 800 001. ... ... OPPOSITE PARTIES. WITH Cr.Misc. No.19023 oF 2003 1. NARESHWAR MISHRA SON OF LATE PARMANAND MISHRA, LECTURER ELECTRICAL ENGINEERING GOVERNMENT POLYTECHNIC DARBHANGA. 2. BHUWNESHWER SINGH SON OF SATAN DEO SINGH, LECTURER ELECTRICAL ENGINEERING GOVERNMENT POLYTECHNIC, DARBHANGA. ... ... PETITIONERS. Versus 1. STATE OF BIHAR 2. SECRETARY, DEPTT. OF SCIENCE AND TECHNOLOGY, GOVT. OF BIHAR. 4. B GATES INFOTECH SYSTEM INTEGRATORS PRIVATE LIMITED, 32 VAIBHAV APARTMENTS, BUDHA MARG, PATNA – 800 001 REPRESENTED BY ITS DIRECTOR MR. MANOJ KUMAR SARAF SON OF LATE LAKSHMI PRASAD SARAF, RESIDENT OF 510 SHANTI VIHAR APARTMENT OFF FRAZOR ROAD PATNA, P.S. KOTWALI, PATNA – 800 001. ... ... OPPOSITE PARTIES. ---- For the Petitioners : Mr. Arbind Kumar, Adv. (In Cr. Misc.No.34963/2002) M/S Ajit Kumar, Adv. Shailendra Kumar, Adv. (In Cr. Misc.No.19023/2003) For the State : Mrs. Indu Bala Pandey,A.P.P. (In both cases) ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- 2 Rakesh Kumar,J. In both the cases, order of cognizance dated 19.1.2001 passed in Complaint case No.673 C of 2000 by the Judicial Magistrate, Patna is under challenge and as such both the petitions were heard together and are being disposed of by this common judgment. 2. By order dated 19.1.2001, the learned Judicial Magistrate, Patna had taken cognizance of offence under Sections 406 and 420 of the Indian Penal code and summoned the petitioners to face trial in Complaint Case No.673 C of 2000. 3. Short fact of the case is that a complaint vide Complaint Case No.673C of 2000 was filed on behalf of B Gates Infotech System Integrators Private Limited through its Director Mr. Manoj Kumar Saraf for the offence under Sections 406, 417, 418 and 420 of the Indian Penal Code against five accused persons, namely, (1) Government Polytechnics, Darbhanga, (2) Mr. Bhagwan Singh, Principal, Government Polytechnic, Darbhanga, (3) Gopal 3 Prasad Varma, Ex Principal-in-charge, Government Polytechnic, Darbhanga, (4) N. Mishra, Ex Principal-in-charge, Government polytechnic, Darbhanga and (5) B. Singh, Incharge, Computer Lab, Government Polytechnic, Darbhanga. It was disclosed in the complaint petition that a contract work was allotted to M/S HCL HP Ltd. by the State Project Implementation Unit of Science and Technology Department, Government of Bihar. Thereafter, the complainant was appointed as Sub Contractor by HCL HP Ltd. for preparing Computer Lab by executing civil and electrical works as per the order of State project Implementation Unit of Science and Technology Department, Government of Bihar. It has been alleged by the complainant that beyond the specification, the accused persons persuaded the complainant to execute some more work. As per agreement, the payment of excess work was to be made by the local institution. It has been alleged that after completing even additional work, the complainant presented different bills for total amount of Rs.76,388/-. However, the accused persons never made payment to the 4 complainant. On the aforesaid allegation, complaint was filed on 4.5.2000. After filing the complaint, complainant examined two witnesses in support of the complaint, besides being examined on solemn affirmation on oath. Thereafter, the learned Magistrate, by its order dated 19.1.2001, has taken cognizance against Shri Bhagwan Singh, who is petitioner in Cr. Misc. No.34963 of 2002, Nareshwar Mishra and Bhuwneshwer Singh, both petitioners in Cr. Misc. No.19023 of 2003. 4. Aggrieved with the order of cognizance, aforesaid petitioners approached this Court by filing two petitions as mentioned above. In Cr. Misc. No.34963 of 2002, while issuing notice to opposite party no.3-complainant, this Court directed that in the meanwhile, further proceeding pending in the court of Judicial Magistrate, Ist Class, Patna in Complaint Case No.673 C of 2000 shall remain stayed. Despite valid service of notice, opposite party no.3 preferred not to appear in the case and as such on 27.2.2004, the petition was admitted for hearing and fresh notice was ordered to be issued to opposite party no.3. Cr. Misc. No.19023 of 5 2003 was admitted on 3.7.2007 and it was directed that this case will be heard along with Cr. Misc. No.24963 of 2002. Despite the opposite party no.3 had entered appearance through his advocate, at the time of hearing, none appeared on behalf of opposite party no.2. 5. Learned counsel for the petitioners have argued that even on the basis of averments made in the complaint petition, no offence is made out. It has been submitted that the learned Magistrate has proceeded with the case without application of mind. In a mechanical manner, order was passed by the learned Magistrate. It has been argued that even the complainant was not authorized by the Government of Bihar to execute the contract work rather contract was entered in between Government of Bihar and M/S HCL HP Ltd. It has further been submitted that from the contents of the complaint petitioner hardly it can be said that it was a case for payment of outstanding bill. Accordingly, it has been prayed to quash the order of cognizance. 6. I have also heard Smt. Indu Bala 6 Pandey, learned Additional Public Prosecutor appearing on behalf of the State. 7. Besides hearing learned counsel for the petitioners and State, I have also perused the materials available on record particularly the complaint petition. After going through the averment made in the complaint petition, the court is of the opinion that no offence is made out and the learned Magistrate had completely failed to examine the averment made in the complaint petition and in a mechanical manner has passed the order of cognizance. 8. Accordingly, order of cognizance dated 19.1.2001 passed by Shri D.N. Pandey, learned Judicial Magistrate, Ist Class, Patna in Complaint Case No.673C of 2000 as well as entire criminal proceeding is hereby set aside so far as petitioners in both the cases are concerned. Both the petitions are allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 15.9.2010 N.A.F.R./N.H.