Criminal Miscellaneous No.18267 of 1999
With
Criminal Miscellaneous. No. 18631 of 1999
With
Criminal Miscellaneous. No. 18859 of 1999
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In the matter of applications under section 482 of the Code of Criminal Procedure
———
1. Nawal Kishore Prasad Singh, Executive Engineer, Bihar State Agriculture Marketing
Board, Bhagalpur Division, Bhagalpur, presently posted at Purnia
2. Narayan Kumar Bharti, Assistant Engineer, Bihar State Agriculture Marketing Board,
Sahibganj. …. (Petitioners in Cr. Misc. No. 18267 of 1999)
———
Ganesh Prasad Mishra S/o Late Bajrangi Prasad Mishra R/o Village- Bath, P.S. Bath, District-
Bhagalpur …. .. (Petitioner in Cr. Misc. No. 18631 of 1999)
———-
Kapildeo Bhagat @ K.D.Bhagat S/o Late Badri Narain R/o Shankar Apartment, Budhacolony,
Patna … .. (Petitioner in Cr. Misc. No. 18859 of 1999)
Versus
1. The State of Bihar
2. Subodh Kumar Sahu @ Subodh Kumar Sah C/o Shivnandan Chaurasia, R/o Mirzanhat, P.S.
Mojahidpur, District Bhagalpur …. (Opposite Parties in all the three applications)
————
For the petitioners: Mr. N. K. Agrawal, Sr. Advocate
Mr. Jagnnath Singh, Advocate
Mr. D. N. Tiwary, Advocate
Mr. Saket Tiwary, Advocate
Mr. Vijay Anand, Advocate
For the State: Lala Kailash Bihari Prasad, Sr. Advocate
Mrs. Veena Kumari Jaiswal, APP
———————–
PRESENT
THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
Shiva Kirti Singh, J. Heard learned counsel for the petitioners in all
the three quashing applications and also learned counsel
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for the State. Notice has been served on the Opposite
Party No.2, the Complainant and he has appeared
through counsels in two of the cases. The names of the
counsels appear in the daily cause list but they have
chosen not to appear and contest these applications.
2. Prayer in all these applications filed under
section 482 of the Code of Criminal Procedure is for
quashing the entire criminal prosecution against the
petitioners in a complaint case bearing No. C 658/97
pending before Chief Judicial Magistrate, Bhagalpur
relating to offences under sections 420, 406 of the Indian
Penal Code and also for quashing of order of cognizance
dated 30-9-1997.
3. On behalf of the petitioners, it has been
submitted that a perusal of the entire complaint petition
would show that the complainant claims to be a
contractor with whom the four petitioners as Engineers
and employees under the Bihar State Agriculture
Marketing Board entered into an agreement for
execution of a civil work and pursuant to such agreement
dated 6-9-88 the complainant begun the contract work
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and was paid an amount of Rs. 1, 75, 234/- but thereafter
his work was neither measured nor his outstanding bills
were paid and this was followed by the accused persons
getting the contract work completed departmentally
causing loss to the complainant-contractor to the tune of
Rs. 1, 94, 320/- for which he gave notice but in vain.
4. It has been submitted on behalf of the
petitioners that the allegations in the complaint petition
disclose at best a breach of agreement executed between
the parties due to subsequent dispute on account of a
boundary wall being constructed at a different point than
the specified place by the Marketing Board and hence for
such breach of contract, only a civil liability could have
been maintained against the petitioners or the Marketing
Board and no criminal offence is made out on the basis
of allegations noticed above.
5. Learned counsel for the State has submitted
that the complainant has mentioned in paragraph 1 of the
complaint petition that he was assured and convinced by
an agreement dated 6-9-88 that on performance of his
work he would be paid the agreed amount and since that
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was not done the complainant is justified in alleging that
he has been cheated by the accused persons.
6. No doubt the word “assurance” has been
mentioned by the complainant in paragraph 1 but such
assurance was not a verbal assurance and it was duly
entered by way of formal agreement. Clearly, there was
no dishonest intention at the beginning of transaction
because the complainant has admitted that in the
beginning his work was supervised and measured and he
was paid on account a huge amount of Rs. 1. 7 lacs and
odd. Admittedly, there was a dispute over situation of the
boundary wall and the complainant has admitted that he
shifted the boundary wall at a considerable distance on
the dictates of Sub-divisional Officer/ Chairman, Bazar
Samiti, Pakur. Whether the dispute was justified or not is
not the subject matter of enquiry for the purpose of
considering the present application of the petitioners
under section 482 of the Code of Criminal Procedure.
The issue is whether they were working with dishonest
intention from the very inception of the contract or not.
The facts mentioned in the complaint petition show that
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differences arose at a later stage and on account of such
differences the contractor was not allowed to work or
was not paid further money. In paragraph 10 the
complainant has made a grievance that the accused
persons ought to have stopped the work of the
complainant or cancelled the agreement before getting
the work done by the department causing loss to the
complainant. This may be a ground for claiming
damages through properly constituted civil suit before a
competent civil court but on such allegation it is difficult
to hold that any criminal offence is made out against the
petitioners who are working only in the capacity of
Executive Engineer, Assistant Engineer, Market
Secretary and Chief Engineer of the concerned
organization.
7. Considering all the facts and circumstances
and the submissions noticed above, this court has no
difficulty in holding that the facts alleged in the
complaint petition when considered in their substance do
not make out any criminal offence either of breach of
trust or cheating against the petitioners. Hence, all the
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three applications are allowed and the entire criminal
prosecution pending against the petitioners, i.e., all the
four accused as well the impugned order of cognizance
are hereby quashed.
Patna High Court (Shiva Kirti Singh, J.)
The 29th April, 2010
NAFR/BKS