Banwari Lal Banka, Pankaj Kumar @ Pankaj Kumar Banka and Vivek Kumar Banka @ Vivek Banka vs The State Of Bihar and Nagendra Prasad

Honourable Mr. Justice Rajendra Kumar Mishra

The petitioners have approached this Court u/s 482 of the Code of Criminal Procedure, to quash the order dated 17.04.2002, passed in Complaint Case no. 907 of 2001 by the Court of Sri K. Prasad, Judicial Magistrate, Patna City, summoning the accused-petitioners, on enquiry u/s 202 of the Code of Criminal Procedure, finding prima facie case under Sections 420, 323, 504 and 379 of the Indian Penal Code.

In brief the case is that complainant-opposite party no. 2, Nagendra Prasad, filed a complaint petition numbered as Complaint Case No. 907 of 2001 in the Court of Additional Chief Judicial Magistrate, Patna City, against the accused-petitioners, alleging therein that he is doing the work of earth filling on contract. On 11.11.1999, in between him and accused-petitioners, contract was made to fill up the vacant low land, situated in Mohalla-Begumpur (Sati Chaura), P.S.-Chowk, District-Patna at the rate of 2.50 paisa per feet. Accordingly, he started the work of earth filling on 04.12.2000. Subsequently, due to hike in the price of diesel, 20 paisa per square feet was orally increased. As such, payment was to be made at the rate of Rs. 2.70 per square feet. In course of continuation of earth feeling work, the accused-petitioner no. 1, Vivek Kumar Banka, and his employees paid Rs. 83,000/-. On completing the work in March, 2001, he made request to the accused-petitioners for measurement of the work but they started to avoid. When on 12.08.2000, he made request to the accused-petitioners for measurement of the work and calculation of amount, then they became annoyed and abused him. It is further alleged by the opposite party no. 2 that while he went to the police station to lodge the case, but his case was not lodged. Thereafter, he again on 16.11.2001 went at the office of accused-petitioners, situated at Machharhatta and made request for measurement of the work and to pay the balance amount saying that he had filled up the soil about 66,500 square feet of Rs. 1,78,000/-, but he has been paid Rs. 83,000/- only, then again accused-petitioners became annoyed and slapped him by abusing. At that time, the accused-petitioner no. 1, Vivek Kumar Banka, took the cash of Rs. 450/- from the pocket of opposite party no. 2.

After filing the complaint petition by opposite party no. 2, on enquiry u/s 202 of the Code of Criminal Procedure the Court of Sri S.K. Prasad, Judicial Magistrate, summoned the accused petitioner through impugned orde dated 17.04.2002 finding prima facie case under Sections 420, 323, 504 and 379 of the Indian Penal Code.

The learned counsel appearing on behalf of petitioners made submission that on bare perusal of the complaint petition, it would appear that the dispute as alleged by opposite party no. 2 is that accused-petitioners paid only Rs. 83,000/- while the amount was due as per agreement Rs. 1, 78,000/-. As such the offence u/s 420 of the Indian Penal Code would not be attracted. The learned counsel for the petitioner further submitted that due to misbehavior of opposite party no. 2, an application was filed by the accused-petitioners at police station and on enquiry, the police submitted the report dated 28.08.2001 before the Sub-Divisional Magistrate, Patna to initiate proceeding against opposite party no. 2 u/s 107 of the Code of Criminal Procedure, which would appear from Annexure-3 to this petition. Due to that reason the opposite party no. 2 filed this false complaint case, later on, on 07.12.2001 in the Court of Additional Chief Judicial Magistrate, Patna City with oblique motive only to harass the accused-petitioners and to put undue pressure.

On bare perusal of the complaint petition, it is apparent that the dispute is of non-payment of money by accused-petitioners to complaint-opposite party no. 2 regarding the work of earth filling on the enhanced rate of Rs. 2.70 paisa per square feet while the initial contract was of Rs. 2.50 paisa per square feet. On demand of measurement of work to make payment of amount on increased rate by the opposite party no. 2, the accused-petitioners abused the opposite party no. 2. Accused-petitioner no. 1, Vivek Kumar Banka snatched Rs. 500/- from the pocket of opposite party no. 2 at that time. The averment of complaint petition do not disclose the ingredient of offence of cheating u/s 420 of the Indian Penal Code. Annexure-3 is the police report dated 30.08.2001, submitted before the Sub-Divisional Magistrate, Patna on the basis of the application of accused-petitioner no. 1, Vivek Kumar Banka, for initiation of proceeding u/s 107 of the Code of Criminal Procedure against opposite party no. 2. As such, complaint petition of the opposite party no. 2 appears to have been filed against accused petitioner maliciously with oblique motive.

Under the aforesaid facts and circumstances, the impugned order dated 17.04.2002, passed in Complaint Case No. 907 of 2001, summoning the accused-petitioners under Sections 420, 323, 504 and 379 of the Indian Penal Code is hereby quashed and this application is allowed.