Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 20852 of 2012 ====================================================== Md. Maqsood Alam, Son of Late Haji Sharafat Hussain, Resident of Village – Khaira, Police Station – Shahkund, District - Bhagalpur .... .... Petitioner/s 1. The State of Bihar 2. Mukesh Sharma, Son of Sri Ramji Sharma, Resident of M.T.N. Ghosh Road, Champanagar, Police Station – Nath Nagar, District - Bhagalpur Versus .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 5 09-07-2013 Heard. This is a petition for quashing the order taking cognizance and issuing summon dated 30.01.2012 in Complaint Case No. 2408 of 2009
Legal Reasoning
see whether the allegation made in the complaint prima facie makes out an offence. Learned counsel for the petitioner, however, submits that the petitioner has filed a Money Suit for violation of the agreement. Patna High Court Cr.Misc. No.20852 of 2012 (5) dt.09-07-2013 4 However if the allegation made in complaint on the face value makes out an offence then institution of suit is no ground to quash the prosecution. However, this is the matter to be looked into at the stage of trial and has no basis for interference at this stage to stop the trial. However, it may be the defence of the accused which can only be considered at the stage of trial. However, filing of the Money Suit does not absolve the allegation for making out an offence when the petitioner and the witnesses supported the prosecution case and hence, the allegation made in the complaint can only be looked into at the stage of trial and this Court cannot go into the question of falsity and truthfulness of allegation at this stage and further the fact that the Money Suit has been filed after the institution of this case, though it is alleged that if the institution of Money Suit has been accepted by the complainant, however, this statement does not inspire confidence for quashing the complaint. Hence, having regard to the facts and circumstances of the case, I do not find any merit to interfere with the order taking cognizance. The petition is dismissed. However, the petitioner, may raise the issue at the stage of framing of the charge. Kundan/- (Gopal Prasad, J.)
Arguments
passed by Sri Vivekanand Prasad, learned Judicial Magistrate-1st Class, Bhagalpur by which the learned court below took cognizance against the petitioner for the offence under Section 406 of the Indian Penal Code. The prosecution case as alleged in the complaint petition is that the complainant is a Government Contractor and he got contract for installation of 75 hand pumps for the year 2008-09. It is further alleged that after getting the aforesaid works the accused/petitioner Maqsood Alam agreed to do the aforesaid works and also give his consent to invest money in the aforesaid work for which an agreement was prepared between them. Maqsood Alam proposed that he will execute the work and invest the money and hence, the parties executed an agreement/Ekrarnama. According to the terms the petitioner had deposited security of Rs.57,000/- as National Saving Certificate and deposited Rs.77,403 as working capital. But it is alleged that Maqsood Alam could not arrange money for execution of the work and could not execute the work according to terms of agreement/Ekrarnama and Patna High Court Cr.Misc. No.20852 of 2012 (5) dt.09-07-2013 2 Mukesh Sharma could execute the work of installation of only 25 hand pumps so Mukesh Sharma the complainant arranged Rs.5,08,600/- and made available and gave articles worth Rs.4,00,000/- paid by D.D. which was received by the petitioner and rest money by cheque and cash for installation of 50 hand pumps. The petitioner installed only 10 hand pumps and rest hand pump for 40 hand pumps installation was dishonestly kept by him and neither used the same nor returned. It is also alleged that on 02.11.2009 the complainant went to the house of the accused and requested to hand over the remaining material but the accused did not give the same and also threatened to shoot the complainant and also abused him. The complainant further alleged that when he again met with the petitioner, he abused him and on interruption of complainant’s friend, namely, Raj Kumar Tanti the matter was pacified. It is further alleged that the petitioner is not only dishonest with him but also kept and concealed the materials to tube well. On the complaint, the complainant and the witnesses were examined and after examination of the witnesses cognizance has been taken and summon was issued against the petitioner. The order taking cognizance has been challenged by the petitioner on the ground that the petitioner has filed a Money Suit as per the breach of terms of the agreement made between the parties. It is alleged that as per agreement he had to do the work and the complainant had to pay 98% of the amount he received from the department for the contract and the petitioner has done the work in pursuance of the agreement but as per agreement 98% amount was required to be given to the petitioner which has not been given so he has filed a Money Suit for Patna High Court Cr.Misc. No.20852 of 2012 (5) dt.09-07-2013 3 realization of the amount and for violation of the contract and it is alleged that the case has instituted falsely to dishonestly disclaim the petitioner. However, taking into consideration the respective submission, it is apparent that the matter arises out of the agreement of the contract. However, the allegation made in the complaint petition is specific that the petitioner has violated the terms and conditions of the agreement. He arranged the money and gave D.D. of Rs.4,00,000/- to the Green Poly Private Ltd. for hand pumps and petitioner received the same and kept in his custody and then without work kept dishonestly with him and did not return the same. However, taking into consideration the allegation made in the complaint that hand pumps were purchased on the basis of the demand drafts and it is alleged that the petitioner received the said article and even made signature regarding receipt of the article and the articles received neither used nor refunded and hence, retained by him and it amounts to criminal breach of trust and hence, the allegations made, make out an offence. However, the submission that the petitioner has falsely been implicated and the allegation made in the complaint cannot be looked into at this stage. While exercising jurisdiction under Section 482 of the Cr.P.C., it can only be looked into at the stage of trial whether the allegations are true or false. However, this Court at this stage can only