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2006 DIGILAW 440 (ALL)

PRABHOO DAYAL v. ZAHEER

2006-02-13

RAVINDRA SINGH

body2006
RAVINDRA SINGH, J. This applicant has been filed by the applicants Prabhoo Dayal, Murali alias Pappu, Ram Naresh and Shanker Lal with a prayer that proceedings in complaint case No. 649 of 1986, Zahir v. Prabhoo Dayal & Ors. , under Section 420 I. P. C. pending in the Court of Learned Metropolitan Magistrate, Raipurwa Kanpur Nagar, may be quashed and the order dated 1-9-1986 passed by the learned Metropolitan Magistrate 5th Raipurwa may be set aside. 2. In this case notice was issued to the opposite party Zahir in pursuance of the order dated 23-4-1987 passed by this Court but the same could not be served upon him because as per report of the learned C. M. M. Kanpur Nagar, the respondent has left Kanpur City after selling his house on 5-12-1991 to Smt. Asha Devi wife of Virendra Kumar Srivastava and he is not traceable. In such a situation, issuing a fresh notice to the opposite party, will be a futile exercise. This matter is too old of the year 1987, therefore, with the assistance of the learned Counsel for the applicant and the learned A. G. A. it is matter is being disposed of. 3. The prosecution story in brief is that one Zahir opposite party has filed a compliant on 10-7-1986 in the Court of learned Metropolitan Magistrate, Raipurwa. Thereafter the statement of Zahir was recorded under Section 200 Cr. P. C. and the statement of other witnesses Dulare and Ram Chandra were recorded under Section 202 Cr. P. C. After considering the complaint and the statement of the witnesses, learned Magistrate took cognizance on 1-9-1986 and summoned the applicants to face the trial for the offence punishable under Section 420 I. P. C. 4. Heard Sri O. P. Singh learned Counsel for the applicants and the learned A. G. A. 5. It is contended by the learned Counsel for the applicants that according to the allegations made in the complaint and by the witnesses in their statements recorded under Section 200 and 202 Cr. P. C, no offence under Section 420 I. P. C. is made out. According to the allegations there was a dispute between the parties in respect of the payment of money for the work done because the complainant had done the construction work of which the payment has not been made by the applicants. 6. P. C, no offence under Section 420 I. P. C. is made out. According to the allegations there was a dispute between the parties in respect of the payment of money for the work done because the complainant had done the construction work of which the payment has not been made by the applicants. 6. The allegation is purely of civil in nature, for realising the money from the applicants, the proper remedy was to file a case in civil Court. On the basis of allegations made against the applicants no offence under Section 420 Cr. P. C. is made out. 7. It is further contended that the learned Magistrate had taken cognizance without applying a judicial mind and without considering the allegations made against the applicants. The order dated 1-9-1986 taking the cognizance, does not disclose any reason, it is not a reasoned order it has been passed in a routine manner. The impugned order dated 1-9-1986 is illegal. 8. It is opposed by the learned A. G. A. by submitting that after considering the complaint and the statement of the witnesses, the learned Magistrate came to the conclusion that a prima facie offence under Section 420 I. P. C. is made out. There is no illegality in the impugned order dated 1-9-1986. 9. After considering the facts and circumstances of the case and the submission made by the learned Counsel for the applicants and the learned A. G. A. I am of the view that the allegations made against the applicants are in respect of payment of money for the work done, on the basis of such allegations made in the complaint and in the statement of the witnesses, no offence under Section 420 I. P. C. is made out and the impugned order dated 1-9-1986 is not a reasoned order, because the learned Magistrate has not considered and discussed the material allegations therein. It has been passed in a routine manner. Therefore, the impugned order dated 1-9-1986 is illegal. It has been passed in a routine manner. Therefore, the impugned order dated 1-9-1986 is illegal. In such a situation the matter should be remitted to the Court of learned Magistrate concerned to pass a fresh order but it is an old matter of 1986 and on the basis of the allegations made against the applicants, prima facie offence under Section 420 I. P. C. is not made out and the complainant (opposite party) is not traceable, it will serve no purpose if the matter is remanded to the Court of Magistrate to pass a fresh order. Therefore, the impugned order dated 1-9-1986 is set aside and the criminal proceedings in criminal case No. 649 of 1986 pending in the Court of learned Metropolitan Magistrate Raipurwa, are quashed. 10. Accordingly this application is allowed. .