The High court of Patna quashed the FIR and also the issuance of summonses to the petitioner passed by the learned Judicial magistrate 1st class as stating that section 420 and 406 of IPC does not satisfied the basic ingredients in the present case
Title-Nilesh singh silankee &others Vs The date of Bihar
Decided on- 23/11/2023
CORAM- HON’BLE JUSTICE MR.ANIL KUMAR SINHA
The petitioner has filed the present writ application for quashing of the FIR bearing civil line police station Gaya, registered for the offence punishable under section 406,420 and 34 of IPC and further by way of amendment the petitioner has prayed for quashing of the order taking cognizance dated 02/03/2023.
As per the facts The petitioner no.1 was engaged in the construction business who entered into a sub contract agreement with one developer namely Akarshan infra Developers Pvt. Ltd. For construction big stilt plus eight floor multi storied residential quarters for Bokaro steel officers housing cooperative society limited and where respondent no.2 entered into an investment agreement with the petitioner no.1 is order to earn profit where he invested around two crore in two month but invested only Rs 85 lakhs that too in 13 months but the investment agreement failed and as due to breach if the agreement the petitioner no.1 company incurred a huge loss where petitioner has to return the amount of RS 85 lakhs with 9% per annum amounting to Rs.1,09,73,000 to be paid to respondent 2 by the petitioner 1 within 15 months.The petitioner no.1 payed around 44 lakhs to Respondent no.2 through NEFT/RTGS and also paid some cash for settlement. In November 2019, the work of the house project stopped due to dispute between principal employer and the main contractor and a huge amount of firm 22 crores where held up by both. The petitioner no.1 company filed. Civil suit before the civil judge senior Division against both the principal employer as well as the main contractor but was withdrawn by the petitioner no.1 as there was an arbitration clause in the agreement between the petitioner no.1 company and principal employer.where the Respondent no.2 lodge FIR against the petitioners and police after investigation submitted the charge sheet against the petitioner on 31/10/2021 and learned Judicial magistrate 1st class took cognizance of the offence i. 02/03/2023.
As learned council for petitioner state that FIR Lodged in abuse of the process of law for recovery of money arising out of agreement between the petitioner no.1 and the respondent no. 2 having arbitration clause and is purely civil dispute and also FIR is in question as it does not have a territorial jurisdiction to register the same as no money transaction has been taken place in gaya bihar not only the FIR is illegal but also same is registered with an evil design by yeh respondent no. 2 to harass the petitioner by abusing process of law.Whereas the Respondent no.2 as well as state council argued that the FIR disclose the offence against the petitioner who after entering into the agreement failed to pay the profit or return the amount as promised by way of settlement agreement and even learned Judicial magistrate 1st class has also taken cognizance of offences against the petitioner and as such the writ petition is fit to be dismissed .
THE COURT ANALYSIS AND DECISION
As the Hon’ble court after hearing both the parties and based upon the arguments advanced and the facts available in the record it emerges that the FIR and other contemporaneous documents that it is a case of purely civil nature arising out of contracts between the parties and no criminal offence under section 420 and 406 of IPC and since the basic ingredients of section 420 made 406 of IPC are not satisfied in the present case as well as issuance of summonses to the petitioner as passed by learned Judicial magistrate 1st class is not sustainable in the eye of law and continuance of the criminal case will amount to abuse if the process of the court.Accordingly the FIR is quashed and also issuance of summonses to the petitioners passed by the learned Judicial magistrate 1st class is also hereby quashed and in the result the application is allowed.
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