BRAHMAPUTRA INFRASTRUCTURE LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present petition has been filed for quashing the order dated 29.10.2018 passed by the learned Court of A.C.J.M- I, Sitamarhi in Complaint Case No. 973 of 2018, whereby and whereunder cognizance has been taken against the petitioners and other co-accused persons under Section 420 of the Indian Penal Code and summons have been issued vide order dated 21.01.2019 as also bailable warrant has been ordered to be issued vide order dated 28.03.2019.

(2.) The brief facts of the case are that a complaint petition dated 02.07.2018 was filed before the learned Court of Chief Judicial Magistrate, Sitamarhi by one Ram Sakha Choudhary, opposite party no. 2 herein against four accused persons including the petitioners herein, who have been arrayed as accused nos. 1 and 4 respectively in the complaint petition. The said complaint petition has been numbered as Complaint Case No. 973 of 2018 wherein it has been alleged that the complainant-O.P. No. 2 owns a firm in the name and style of M/s. Ram Sakha Chaudhary and he is the Director of the said firm. It is alleged that the accused no. 1 i.e. the petitioner no. 1 herein, namely, Brahmputra Infrastructure Limited had been awarded a contract by the Water Resources Department under the Adhwara River Project relating to raising and strengthening of embankment on both sides of the river whereafter the petitioner no. 1 had opened an office at Sitamarhi and appointed two employees who had called the complainant to their office on 15.05.2012 and requested him that in view of the contract awarded to the petitioner no. 1, they want to get some work conducted through the firm of the complainant, whereupon work order was given to the complainant by the accused persons on 20.11.2012. Thereafter, the complainant and his firm had carried out work to the tune of Rs. 3,41,10,388/- (Three crore forty one lakh ten thousand & three hundred eighty eight). In the complaint petition it has been alleged that subsequently, as per agreed rate of diesel etc., a sum of Rs. 1,54,99,948/- was paid by the petitioners to the complainant after deduction of 1% T.D.S. as also paid a sum of Rs. 22,70,668/- on the head of expenses pertaining to site management, however, a sum of Rs. 97,56,938.12 had remained outstanding for payment. It is the further allegation of the complainant that the complainant had contacted the accused persons over telephone on several occasions whereafter four cheques of Rs. 2,50,000/- each were given, however, when the complainant had deposited the same in his bank account, the same stood bounced and could not be honoured on account of lack of funds in the account of the accused persons whereupon the complainant is stated to have filed two complaint cases bearing Complaint Case No. C1/1854/16 and Complaint Case No. C1/35/17 before the learned Court of Chief Judicial Magistrate, Sitamarhi, however, in the midst of the said proceedings the accused persons had contacted the complainant and had entered into an agreement with the complainant stating therein that the balance amount of Rs. 70,50,541/- will be paid in nine instalments and the said agreement dated 08.06.2017 was signed by the petitioner no. 2 on behalf of the petitioner no. 1 in presence of the co-accused no. 3. It has been further stated in the complaint petition by the complainant that after payment of three instalments totalling to a sum of Rs. 23,50,179.00 and a sum of Rs. 10,00,000/- respectively, the complainant had withdrawn the aforesaid two complaints, however, thereafter the accused persons including the petitioners herein did not pay the balance outstanding amount as per the agreement to the tune of Rs. 37,00,362/-, hence the accused persons including the petitioners herein have cheated the complainant and had fraudulently entered into an agreement whereafter they have failed to comply with the terms of payment prescribed in the agreement. It has also been stated in the complaint petition that a legal notice dated 23.03.2018 was sent through the advocate of the complainant-opposite party no. 2 to the accused persons for payment of the outstanding amount, failing which it was specified therein that the complainant would take appropriate legal action by filing civil and criminal cases before the learned Court at Sitamarhi, however, the accused persons though had replied to the aforesaid legal notice dated 23.03.2018 but had not paid the outstanding amount. It is stated that on account of the aforesaid acts of the accused persons including the petitioner herein, the complainant-opposite party no. 2 has been cheated, his firm has suffered a financial loss and the accused persons including the petitioners herein, have deliberately, in conspiracy with each other and with the intention of swindling the outstanding amount payable to the complainant have engaged in cheating by entering into an agreement discreetly with the complainant. In such view of the matter, the complainant had prayed in the complaint petition to take cognizance against the accused persons and punish them.

(3.) The aforesaid petition filed by the complainant- opposite party no. 2 was numbered as Complaint Case No. 973 of 2018. It appears that the learned court below had then examined witnesses on behalf of the complainant and on the basis of the record and oral evidence led by the complainant, the learned Court of A.C.J.M., Sitamarhi by an order dated 29.10.2018 had come to a finding that a prima facie case is made out under Section 420 of the Indian Penal Code only, as against the accused persons and had accordingly directed to issue notices to the accused persons. Thereafter, the learned Court of A.C.J.M.-I, Sitamarhi by an order dated 21.09.2019 has issued summons against the accused persons.