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2006 DIGILAW 1201 (PAT)

Niranjan Prasad Saxena v. State Of Bihar

2006-12-07

ABHIJIT SINHA

body2006
Judgment 1. Heard the learned counsel for the petitioners and the learned A.P.P. for the State. 2. The petitioners are aggrieved by order dated 10.12.2002 passed by Sri Bishun Deo Rai, learned Judicial Magistrate, 1st Class, Patna in Complaint Case No. 16(C)/02 whereby he has taken cognizance against the petitioners under Sec. 420/34 of the Indian Penal Code. 3. The contention on behalf of the petitioners is that they are innocent and neither from the averments in the complaint petition nor from the evidence adduced at the enquiry can the petitioners be fastened with criminal liability since none of the ingredients of an offence under Sec. 420 of the Indian Penal Code is made out. It has also been submitted that from the allegations this appears to be a clear case of civil dispute and the instant proceeding is an abuse of the process of the court. 4. The complainants case, in brief, is that he as a managing partner of M/s Jyoti Developers on 15.08.95 entered into a development agreement with accused no.1, Saxena, mother of petitioner no.1 herein to build a multistory building (Ground + Nine floors) on the Stridhan land of accused no.1 situated at Dak Bungalow Road, Patna and the agreement was signed by accused no.1 to 3 on the one hand and the complainant on the other. Later on 31.08.95 the accused no.1 executed a power of Attorney in favour of accused no.2 and 3 in connection with the said land and handed over in connection with the said land in favour of the complainant. 5. It is further case of the complainant that although the initial plan for the building was Ground plus Nine stories which was approved by the Fire Department. Bihar and on such approval the complainant paid Rs. 21,97,000/- to the accused persons but later on the P.R.D.A. sanctioned the plan for plus Ground plus Four floors. The complainant on completion of the building sold his share to different persons in presence of the accused persons and thereafter it transpires that the accused persons had already received an excess amount of Rs. 21,97,000/- to the accused persons but later on the P.R.D.A. sanctioned the plan for plus Ground plus Four floors. The complainant on completion of the building sold his share to different persons in presence of the accused persons and thereafter it transpires that the accused persons had already received an excess amount of Rs. 10,97,000/- against their share and when the complainant demanded a refund of the excess amount paid the accused persons assured the complainant that the said amount will be returned within a month or two and accordingly an agreement was prepared whereby the complainant became the owner of the rest of the shares of the accused persons. Notwithstanding persistente demand when the accused persons declined to pay the dues to the complainant he gave legal notice and as a counter blast a false case was filed against the complainant. 6. It appears from the impugned order that the learned Magistrate for cogent reasons had found a prima facie case to have been made out against the petitioners. 7. I am not impressed by the submissions advanced by the learned counsel for the petitioners. However, they may raise all these points at the time of framing of charge before the court below.