GAUTAM SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application has been filed by the petitioners under Section 482 of the Cr. P. C. for quashing of the entire criminal proceeding i.e. C/1 Case No. 515 of 1998 instituted against petitioners including the order dated 13-8-1998 passed by Sri L. P. Choubey, J. M. 1st Class, Jamshedpur whereby and whereunder a prima facie case under Sections 420 and 406 of the Indian Penal Code having been found, cognizance has been taken against them and summons were ordered to be issued.

(2.) The facts giving rise to this case are as follows. O. P. No. 2, Kundan Verma filed a petition of complaint before the Court of Chief Judicial Magistrate Jamshedpur on 31-7-98 giving rise to C/1 Case No. 515 of 1998 against the petitioners for summoning them for trial for the offence punishable under Sections 406 and 420, I.P.C. regarding the occurrence which is said to have taken place in the month of April, 1996 and continuing since then till today. Learned Chief Judicial Magistrate vide order dated 31-7-1998 transferred the case to the Court of Sri L. P. Choubey under Section 192(1), Cr. P. C. for inquiry and disposal. O. P. No. 2 was examined on S.A. on 7-8-1998. Thereafter one Kalidas Sen Gupta was examined on behalf of O. P. No. 2 under Section 202, Cr. P. C. and finding sufficient ground for proceeding against the petitioners and a prima facie case having been made out, cognizance in the case was taken under Sections 406 and 420, I.P.C. against the petitioners and they were summoned for trial vide order dated 13-8-1998.

(3.) The prosecution case as averred in the petition of complaint of O.P. No. 2 is that he is a Civil Contractor and Builder by profession and undertakes the construction work in and around Jamshedpur for its customer and the petitioners approached him to make construction in the western portion of TISCO holding No. 504, Kasidih Lease Area, P. S. Sakchi on an area measuring 82' 8" x 59' 9" as per approved building plan having the building permit No. 23342, dated 14-11-1991 of Jamshedpur Notified Area Committee and also agreed to pay him the construction cost @ Rs. 200.00 per sq. ft. for completing the construction as per building plan. It was further agreed that the cost of shutters and other materials would not be covered by the said construction cost of Rs.200.00 per sq. ft. and that the entire construction shall be completed within 15 months from the date of the signing of the agreement. Accordingly, an agreement was executed between the petitioner Nos. 1 to 4 and O. P. No. 2 on 5/01/1995 which was also duly notarised by the Notary Public on 18-1-1995. In pursuance of the agreement O.P. No. 2 stated construction work at his own cost and thus he made construction of 4553 sq. ft. for which a sum of Rs. 9,10,000.00 was payable by the petitioners to O.P. No. 2 @ Rs. 200.00 per sq. ft. It is also alleged that O.P. No. 2 also did some construction work beyond the agreement at the request of the petitioners, the cost of which comes to Rs. 2,30,586.00. It is also alleged that O. P. No. 2 completed the entire construction work within the stipulated period and the petitioners have paid him a sum of Rs. 3,64,000.00 only and there is still balance outstanding against the petitioners amounting to Rs. 7,77,586.00. The petitioners evaded to pay balance of the outstanding amount aforesaid on some pretext or the other and sensing some foul play in the intention of the petitioners, O.P. No. 2 sent bills by registered post to petitioner No. 5 for payment which was not received by him. It is further alleged that from the conduct of the petitioners it is apparent that they with dishonest intention got the construction work done under the agreement and did not make payment of the cost of the construction even after repeated reminders and thereby they have committed criminal breach of trust punishable under Section 406, I.P.C. and they have fraudulently and dishonestly induced O.P. No. 2 to invest his money and they did not pay the cost of construction to O.P. No. 2 which amounted to cheating O.P. No. 2 making out a case under Section 420, I.P.C.