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2012 DIGILAW 6 (PAT)

Kamlesh Pandey v. Birendra Kumar Singh

2012-01-03

RAJENDRA KUMAR MISHRA

body2012
JUDGMENT R.K. Mishra, J.- The petitioner has approached this Court under Section 482 of the Code of Criminal Procedure, to quash the order dated 12.07.2001 passed by the Chief Judicial Magistrate, Aurangabad, in Tr. No. 1106 of 2001, arising out of Complaint Case No. 1158 of 2000, summoning the accused named in the complaint petition including the petitioner, on enquiry, finding prima facie case, under Sections 323, 504, 406 and 420/34 of the Indian Penal Code. 2. In brief, the case is that opposite party No.1. Birendra Kumar Singh filed a complaint petition in the Court of Chief Judicial Magistrate. Aurangabad, numbered as Complaint Case No. 1958 of 2000, with allegation that his son, Dhananjay Kumar Singh, secured good marks in I.S.C. Examination from Gyan Bharti Bodh Gaya and applied for higher education. It is further alleged by opposite party No. 2 that for the purpose of advertisement of the Institute of Hotel Management Catering & Applied Nutrition, the accused had come at Aurangabad and stayed in Samrat Hotel, situated at Ramesh Chowk, Aurangabad. The opposite party No.2 along with witnesses went at hotel and enquired from the accused regarding said Institute and in that course, the information was given by the accused that Institute is registered with All India Council of Technical Education and is recognized Institute. Thereafter, opposite party No.2 on depositing Rs. 250/- obtained the admission form for his son and submitted on filing- up the same by his son. On 29.09.1999, accused Nos. 1, 2 and 3, namely, Raj Kumar Singh, O.P. Lakmani and Ashok Tahleza, Director, Joint Director and Chairman respectively, of the Institute informed on phone to opposite party No. 2 about their presence at Samrat Hotel. Thereafter, the opposite party No. 2 along with other went at Samrat Hotel, where the accused told about the registration fee for first year of Rs. 4980/- tuition fee Rs. 9750/-, general fee of Rs. 800/- and hostel fee for three months of Rs. 4200/-, total Rs. 19730/-, The opposite party No; 2 handed over cash amount of Rs. 9180/- and insured that remaining amount will be paid before starting of the session. Thereafter, the accused No.1, Raj Kumar Singh, informed about starting of the session saying to come with remaining amount along with his son. 4200/-, total Rs. 19730/-, The opposite party No; 2 handed over cash amount of Rs. 9180/- and insured that remaining amount will be paid before starting of the session. Thereafter, the accused No.1, Raj Kumar Singh, informed about starting of the session saying to come with remaining amount along with his son. Thereafter, opposite party No. 2 along with his son went to office of the Institute on 11.10.1999, where accused persons were present and opposite party No. 2 deposited the rest amount along with hostel fee. On reliable sources opposite party No.2 came to know that the Institute is not recognized by All Indian Council for Education, then he met on 21. 11.2000 to the accused, but no proper reply was given and they also told him to take back his son after fifteen days. Thereafter, on 14.12.2000, the opposite party No. 2 along with witness made demand of amount, which was given for admission then accused No.1. Raj Kumar Singh, abused him and dashed, and his son was removed forcibly from hostel. 3. The learned counsel appearing on behalf of petitioner submits that from perusal of the complaint petition, S.A. of the complainant, Birendra Kumar Singh and statements of the witnesses, as examined in course of enquiry, no prima facie case is made out against the petitioner for the offence under Sections 323, 504 and 406/34 of the Indian Penal Code. Moreover, it would clear from complaint petition, that the name of the petitioner has been inserted as accused No.6 later on through pen without any allegation in the complaint petition. As such, summoning the accused petitioner through the impugned order is completely the abuse of the process of the Court. It has also been submitted that in fact the petitioner was running a private School in the house of the complaint/opposite party No.2. Birendra Kumar Singh and vacated the premises in year 1999 due to some unavoidable circumstances. Subsequently, the opposite party No. 2 send the legal notice dated 28.09.1999 through his advocate. Sri Yogendra Prasad Verma, showing the rent due Rs. 12,800/- for payment when the petitioner received the said notice, the same was replied through the Advocate, which would appear from Annexures-2 and 2/1 of this petition. Thereafter, the petitioner received the summon in Complaint Case No. 1158 of 2000, filed by the opposite party No.2, Birendra Kumar Singh, alongwith copy of the complaint petition. 12,800/- for payment when the petitioner received the said notice, the same was replied through the Advocate, which would appear from Annexures-2 and 2/1 of this petition. Thereafter, the petitioner received the summon in Complaint Case No. 1158 of 2000, filed by the opposite party No.2, Birendra Kumar Singh, alongwith copy of the complaint petition. 4. On perusal of the complaint petition, it appears that the name of the petitioner has been added as accused No. 6 through pen after the name of five accused, who are said to be Director. Joint Director, Chairman, Study In-charge and Hostel Warden of Advance Management Studies, Institute of Hotel Management, 34 Gandhi Nagar Singra, Varanasi, but nothing has been stated against the petitioner in the complaint petition, S.A of the complainant and the statements of the witnesses, which are Annexures-l to 1/4 to this application. Annexure-2 is the legal notice, sent by opposite party No.2, Birendra Kumar Singh to the petitioner/or arrears of rent through his counsel, Yogendra Prasad Verma, who is one of the witnesses in the complaint petition filed by opposite party No.2. 5. Under the aforesaid facts and circumstances, the impugned order dated 12.07.2001, passed in Tr. No. 1106 of 2001 arising out of Complaint Case No. 1158 of 2000 by the Chief Judicial Magistrate, Aurangabad, appears to be abuse of the process of the Court. Accordingly, the same is hereby quashed with respect to the petitioner and this application is allowed. Application allowed.