(1.) HEARD the learned counsel for the applicants, the learned A.G.A. for the State and the learned counsel for the opposite party no.2 and perused the record.
(2.) THE instant petition has been filed with the prayer to set aside the judgment and order dated 21.5.2011 passed by the Judicial Magistrate -I, Allahabad in complaint Case No. 1570 of 2009 whereby the discharge application moved by the applicants in respect of offence under Section 406 I.P.C. has been rejected.
(3.) THE factual matrix of the case in short conspectus is that the complainant's nephew who is a contractor had constructed two rooms at the labour rate of Rs. 50,000/ - in the house of the applicants. After the construction of the rooms in the year 2001 the accused/applicants further asked to construct one room, stair case and balcony for which they had made payments time to time and the total amount of expenditure incurred of Rs. 6,97,996/ - and payment of amount of Rs. 71,751/ - which was due upon the applicants kept by them with the promise that they will give when ever it is demanded from the applicants. The complainant when demanded the amount, the payment of amount of Rs. 20,000/ - and 10,000/ - were made by the applicants through cheques on 22.6.2006 and 14.9.2007 respectively. Thereafter the complainant had fell ill and was admitted in hospital, therefore, his nephew who had completed the work had demanded the money from the applicants, they made excuses and the due amount was not paid. When the due amount was demanded by the complainant on 6.8.2009 they started threatening him and refused that they will not make any payment. At this the complainant had requested the police for lodging a first information report on 7.8.2009 and since the report was not lodged by the police he had no alternative but to file a complaint, which was registered as Complaint Case No. 1570 of 2009 on 8.9.2009. After recording the statement of the complainant under Section 200 and 202 Cr.P.C. of two witnesses, namely, Kamla Prasad and K. R. Kapoor respectively the learned Magistrate found that prima facie offence is made out against the applicants under Section 406 I.P.C., hence passed the order summoning them to face trial vide order dated 10.11.2009.