ANJANI KUMAR SINHA Vs. UDAI NARAIN SINHA

JUDGEMENT

(1.) The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 24.5.2002 passed by Sri V.K. Mishra, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 460C of 2002. By the said order the learned Magistrate has taken cognizance of the offence under Section 420 of the Indian Penal Code and summoned the petitioner.

(2.) Short fact of the case is that opposite party No. 1, who was proprietor of M/s Kumar Building Construction, filed a complaint in the Court of Chief Judicial Magistrate, Patna which was numbered as Complaint Case No. 460C of 2002. In the compliant, the complainant had arrayed the petitioner, his wife and his brother-in- law as accused Nos. 1, 2 and 3 respectively. It was alleged in the complaint petition that he had taken land of the petitioner for developing and constructing a building under an agreement on 5.2.2001 and thereafter he started construction work. It was asserted that as per terms and conditions of constract, the petitioner did not make payment to the complainant and, thereafter, dispute arose between the parties. On 9.3.2002 a proceeding under Section 144 of the Code of Criminal Procedure (hereinafter referred to as Cr PC) was also initiated. It was alleged that prior to initiation of the proceeding under Section 144, Cr PC since payment was not made by the petitioner, the complainant had stopped the work and put a lock on the gate of site. However, the petitioner alongwith 10-12 persons on 6.3.2002 forcibly broken the lock and trespassed and attempted to start re-construction work through other agency. In the complaint it was further disclosed that about Rs. 5,48,188/- remained outstanding. However on 29.5.2001 the petitioner made payment of Rs. 2,32,500/- and thereafter the petitioner never made further payment to the complainant. The complainant in his complaint petition had also stated that for realization of due amount on 31.1.2001 he has filed money suit against the petitioner. On the aforesaid allegation, the complaint was filed. After filing the complaint, the complainant was examined on solemn affirmation and in support of his complaint case, he got examined two witnesses and thereafter the learned Magistrate by order dated 24.5.2002 took cognizance of the offence under Section 420 of the Indian Penal Code only in respect of the petitioner.

(3.) Aggrieved with the order of cognizance the petitioner approached this Court by filing present petition. On 16.12.2002 while issuing notice to opposite party No. 1 it was directed that in the meantime further proceeding in complaint case No. 460C of 2002 pending in the Court of Judicial Magistrate, Patna, shall remain stayed. On 15.3.2004 lower Court record was called for which was subsequently received and on 10.11.2004 the case was admitted for hearing While admitting the case it was directed that during the pendency of this application, the interim order passed on 16.12.2002 shall continue. The order of stay is still continuing.