Patna High Court - Orders
M/S Gandiv Builders And Engineers Pvt. ... vs The State Of Bihar & Anr on 29 March, 2012
Author: Jyoti Saran
Bench: Jyoti Saran
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.12951 of 2012
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M/S Gandiv Builders And Engineers Pvt. Ltd. & Ors.
.... .... Petitioner/s
Versus
The State Of Bihar & Anr
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr.
For the Opposite Party/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
2. 29-03-2012. Heard Mr. Y.V. Giri, learned Senior Counsel appearing on behalf of the petitioners and Mr. Jharkhandi Upadhyay, learned Additional Public Prosecutor, appearing on behalf of the State.
This application is directed against the order dated 11.8.2011 passed by Sri Praveen Kumar Singh, Judicial Magistrate, Ist Class, Patna in Complaint Case No.362 (C) of 2011, whereby the learned Magistrate has been pleased to take cognizance of the offences punishable under sections 420, 467 and 468 of the Indian Penal Code against the petitioners.
Mr. Giri, learned Senior Counsel appearing on behalf of the petitioners, with reference to the allegation set out in the complaint petition, submits that apart from the fact that no offence is made out against the petitioners much less any offence punishable under sections 420, 467 and 468 of the Patna High Court Cr.Misc. No.12951 of 2012 (2) dt.29-03-2012 2 Indian Penal Code, the instant proceedings is also not maintainable in view of the statement made by the signatory to the agreement, namely, Nagendra Prasad Singh, the Managing Director of the complainant Company M/s India Machinery Stores Private Limited, which puts an end to all dispute raised in the complaint.
Mr. Giri, with reference to the agreement entered into between the parties, i.e. the petitioner no.2 and the complainant Company, a copy whereof is at page-55 of the present proceedings, submits that initially an agreement was entered into between the parties for construction of a residential apartment. The Managing Director of the complainant Company, Shri Nagendra Prasad Singh is the signatory to the agreement. It is submitted that subsequently, a second agreement was executed present at page-85 of the proceedings, between the complainant Company under the signature of the Managing Director Nagendra Prasad Singh and petitioner no.1 M/s Gandiv Builders and Engineers Private Limited, which was in respect of the construction of a Hotel also.
It is stated that upon completion of the contract, the said executor to the agreement Nagendra Prasad Singh, the Managing Director of M/s India Machinery Stores Private Patna High Court Cr.Misc. No.12951 of 2012 (2) dt.29-03-2012 3 Limited has certified the fulfillment of the contractual obligations by the petitioners specifically mentioning that the work had been completed in terms of the agreement and that he had received the entire amount in terms of the agreement entered into between the parties being the full share of the land owners. The certification on stamp paper given by the said Managing Director is placed at Annexures-10 and 11 to the present proceedings.
It is submitted on behalf of the petitioners that the complaint case in question has been instituted at the behest of one of the directors Sanjay Kumar Singh who happens to be the son of the Managing Director claiming authorisation to do so by the Managing Director. It is stated that the falsity of the allegation set out in the complaint is evident from the certification of fulfillment of contractual obligations given by the Managing Director, as contained in Annexures-10 and 11 and which documents have been executed by the Managing Director father of the complainant, subsequent to the institution of the complaint case. It is thus submitted that the case in question has been filed merely with the purpose of harassment and is a malicious prosecution, the continuation where of would be an abuse of the process of the court.
Patna High Court Cr.Misc. No.12951 of 2012 (2) dt.29-03-2012 4
Issue notice to the opposite party no.2 for which requisites etc under ordinary course as well as registered post be filed within one week failing which this application as against him shall stand dismissed without further reference to the bench.
Put up after service of notice.
In the meantime, further proceedings in Complaint Case No.362 (C) of 2011 pending in the court of Sri Praveen Kumar Singh, Judicial Magistrate, Ist Class, Patna or the successor court, shall remain stayed.
(Jyoti Saran, J) ahk/-