VIJAY SONI Vs. MAHESH UPADHYAY

JUDGEMENT

(1.) This petition under Section 482 of Cr.P.C. has been filed by the petitioners for quashment of the order impugned dated 17.5.2019 passed by learned JMFC, Newari, District Tikamgarh (MP), whereby the complaint filed by respondent no. 1 against the petitioners and respondents no. 3 to 5 was sent to the Police Station Sendri, District Newari (MP) under Section 156 (3) of Cr.P.C. for recording the FIR and investigating the matter.

(2.) The facts giving rise to this petition are that on 16.11.2018 respondent no.1 filed a complaint before the J.M.F.C., Newari, District Tikamgarh against the petitioners and respondents no. 3 to 5, alleging therein that they are responsible for the functioning of Municipal Council Tarichar Kalan, Police Station Sendri, District Tikamgarh, and they are also responsible for making payment of Rs.65,40,620/- to the contractor for the work done under the Chief Minister Urban Drinking Water Scheme while on the spot no such work has been found to be executed and the work, about which, the payment has been made was shown to be done during the period when the alleged petitioners and the respondents were posted as Sub-Engineer and thereafter, on the basis of false measurement book, payment of bill nos. 15 and 16 relating to the aforesaid work was done and the payment was made to the contractor with dishonest and fraudulent intention. Therefore, they have committed offence under Sections 420, 467, 468, 471 and 120-B of the IPC. About the aforesaid offence, he made complaint to the police but no action was taken, therefore, he has filed complaint. Learned J.M.F.C. initially called status report from the police and on 25.2.2019 the police submitted report before the J.M.F.C. to the effect that respondent no. 1 after transfer did not submit measurement book and took away it with him and despite of the demand, he did not submit the same. Therefore, petitioner Vijay Soni prepared measurement book for bill no. 15 and bill no. 16 were cleared by another Sub-Engineer Deepak Yadav and the payment was made in accordance with law. Hence, no offence has been committed. Despite of the aforesaid report, learned J.M.F.C. vide order dated 17.5.2019, considering the averments and documents filed with the complaint, directed the Police under Section 156 (3) of Cr.P.C. to register FIR, which is under challenge here.

(3.) The petitioners have filed this petition on the ground that from the averments of the complaint prima-facie no offence is made out against them and after the report of the police, the doubts raised by respondent no. 1 were rectified. Respondent no.1 waived story on the basis of not submitting measurement book by him as the work was done when he was posted, therefore, according to his view, the payment could not be made without submission of measurement book by him and if the payment is made it is an offence. While the police report has made it clear that non-submission of the measurement book by respondent no.1, the work done got measured by other Sub -Engineers and the payment was made following the relevant procedure. But learned Magistrate without applying his mind in mechanical way has passed the order, even the complaint is not supported by any affidavit which is mandatory as laid down by the Apex Court in the case of Priyanka Srivastava and another v. State of Uttar Pradesh and others (2015) 6 SCC 287. The respondent No.1 has made the complaint maliciously with ulterior motive as against him, about his misdeed, departmental action has been taken at various level and he was transferred on account of his misdeed done so many times and he was also transferred from Municipal Council Tarichar Kalan and the respondent No. 1 is of the view that his transfer and disciplinary proceeding against him is being taken on the instance of the petitioners and respondents no. 3 to 5 and the alleged complaint has been filed by respondent no. 1 to take personal revenge from the petitioners and respondents no. 3 to 5 to settle his score. Therefore, the impugned order is not sustainable and it is a misuse of process of the court and causing injustice. Hence, the same be set-aside.