Madhya Pradesh High Court
Rajesh Kathuria vs State Of M.P. on 17 December, 2015
M. Cr. C. No.607/2013
17/12/2015
Parties through their counsel.
The present petition has been filed by the petitioners for
quashment of complaint under Sec.482 of the Code of Criminal
Procedure, 1973 for quashment of complaint filed by the
respondent No.2 - Omprakash Kulshrestha.
2- The petitioner No.1 at the relevant point of time, when this petition was filed, was the President of Nagar Palika Parishad, Morena and the petitioners No.2 to 4 are the officers serving under the Nagar Palika Parishad, Morena. A complaint was preferred by the respondent No.2 under Sec.200 of Cr.P.C. alleging commission of offence under Sec.166 of the Indian Penal Code and the learned Judicial Magistrate First Class, Morena has taken cognizance of the matter and the complaint has been registered.
3- The facts of the case reveal that the respondent No.2 - Omprakash Kulshrestha in his complaint has stated that certain MIG flats were constructed at Gandhi Colony, Morena and even after completion of work in question, the payment was not made by the Municipal Council, Morena.
4- The facts of the case further reveal that the respondent No.2 - Omprakash Kulshrestha entered into an agreement with M/s. Motilal Sharma who was the real contractor, in favour of whom the work order was issued and who has constructed the houses in question and there was some dispute between the respondent No.2 - Omprakash Kulshrestha and M/s. Motilal Sharma. The civil suit was placed before the Lok Adalat and in the Lok Adalat M/s. Motilal Sharma gave an undertaking, the amount which is to be recovered from the Municipal Council, Morena be paid to respondent No.2.
5- It is pertinent to note that the Municipal Council was not a party before the Lok Adalat. It is also an admitted fact that the respondent No.2 has filed the complaint was neither the contractor nor a partner and was not entitled to receive money in respect of construction work carried out by M/s. Motilal Sharma. 6- Based upon the order which was passed in the Lok Adalat on 19/02/2006, the respondent No.2 started claiming dues from Municipal Council, Morena. A writ petition was preferred before this Court and the same was registered as W.P.No.6350/2010 (Omprakash Kulshrestha Vs. Municipal Council, Morena & Anr.). In the writ petition also it was categorically stated in paragraph No.4 (Annex.-P/5) that M/s. Motilal Sharma has constructed 36 MIG flats situated at Gandhi Colony, Morena in front of Radhika Palace, Morena. Meaning thereby, the respondent No.2 admitted before this Court also that he has not constructed the houses in question.
7- A prayer was made for issuance of a direction to the respondent - Municipal Council to decide the representation preferred by the respondent No.2 and this Court by an order dated 26/10/2010 has directed the Council to decide the representation. The Council has finally decided the representation on 30th of April, 2011 rejecting the claim of the complainant. Even a contempt petition was preferred i.e. Contempt Petition No.120/2011 and this Court has dismissed the contempt petition also by an order dated 16/05/2011. 8- After dismissal of the contempt petition, now the complaint has been filed under Sec.200 of the Cr.P.C. and the learned Judge has taken cognizance for offence under Sec.166 of the IPC. Section 166 of the IPC reads as under:-
"166. Public servant disobeying law, with intent to cause injury to any person.--Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
A, being an officer directed by law to take property in execution, in order to satisfy a decree pronounced in Z's favour by a Court of Justice, knowingly disobeys that direction of law, with the knowledge that he is likely thereby to cause injury to Z. A has committed the offence defined in this section."
9- This Court has carefully gone through the statutory provisions of law. In the present case, the learned counsel for the complainant has not been able to point out before this Court the disobedience of law committed by the present petitioners who are the officers of the Municipal Council and including the Ex-President.
10- In the present case, it is an undisputed fact that the complainant has not constructed the houses in question, no work order of any kind has been brought to the notice of this Court nor enclosed alongwith the complaint. There is no evidence on record also to establish that the complainant has carried out the work and has constructed the flats and this Court has also dismissed the contempt petition preferred by the complainant.
11- In the considered opinion of this Court, the present petition is nothing but a sheer abuse of process of law by the respondent No.2 and therefore, the complaint and the order passed by the learned Judicial Magistrate First Class, Morena dated 04/10/2012 and all further proceedings deserves to be quashed and are accordingly, quashed.
12- With the aforesaid, the petition preferred under Sec.482 of the Cr.P.C. stands allowed.
Certified copy as per rules.
(S. C. SHARMA) JUDGE Tej