NAHEED ARA MOONIS, J. - (1.) HEARD the learned counsel for the applicants, the learned A.G.A. for the State and the learned counsel for the opposite party no.2 and perused the record.
(2.) THE instant petition has been filed with the prayer to set aside the judgment and order dated 21.5.2011 passed by the Judicial Magistrate -I, Allahabad in complaint Case No. 1570 of 2009 whereby the discharge application moved by the applicants in respect of offence under Section 406 I.P.C. has been rejected.
(3.) THE factual matrix of the case in short conspectus is that the complainant's nephew who is a contractor had constructed two rooms at the labour rate of Rs. 50,000/ - in the house of the applicants. After the construction of the rooms in the year 2001 the accused/applicants further asked to construct one room, stair case and balcony for which they had made payments time to time and the total amount of expenditure incurred of Rs. 6,97,996/ - and payment of amount of Rs. 71,751/ - which was due upon the applicants kept by them with the promise that they will give when ever it is demanded from the applicants. The complainant when demanded the amount, the payment of amount of Rs. 20,000/ - and 10,000/ - were made by the applicants through cheques on 22.6.2006 and 14.9.2007 respectively. Thereafter the complainant had fell ill and was admitted in hospital, therefore, his nephew who had completed the work had demanded the money from the applicants, they made excuses and the due amount was not paid. When the due amount was demanded by the complainant on 6.8.2009 they started threatening him and refused that they will not make any payment. At this the complainant had requested the police for lodging a first information report on 7.8.2009 and since the report was not lodged by the police he had no alternative but to file a complaint, which was registered as Complaint Case No. 1570 of 2009 on 8.9.2009. After recording the statement of the complainant under Section 200 and 202 Cr.P.C. of two witnesses, namely, Kamla Prasad and K. R. Kapoor respectively the learned Magistrate found that prima facie offence is made out against the applicants under Section 406 I.P.C., hence passed the order summoning them to face trial vide order dated 10.11.2009. Aggrieved by the aforesaid order the applicants earlier had approached this court by means of filing Criminal Application U/s. 482 Cr.P.C. Petition No. 35627 of 2010 with the prayer for quashing the proceedings of the aforesaid case pursuant to the summoning order passed under Section 406 I.P.C. This court after considering the facts of the case directed the applicants to move a discharge application under the provision of the Code before the court below within one week, which shall be considered by the court below expeditiously within a period of three months or till disposal of the application. It was further directed that for a period of four months or till the disposal of the discharge application no coercive steps shall be taken against the applicants. Pursuant to the aforesaid order, the applicants approached the court below by filing a discharge application, which was rejected by the impugned order dated 21.5.2011, which has been challenged by the applicants by invoking the inherent power of this court by filing the instant petition. This court on 23.6.2011 while issuing notice to the opposite party no. 2 inviting counter affidavit has stayed further proceeding of the case with the direction to the applicants to file rejoinder affidavit. It has been argued by the learned counsel for the applicants that the court below has not decided the discharge application on its merit rather it was decided on the ground of its maintainability, hence the order is contrary to the provision laid down under Section 245 (2) Cr.P.C. as well as contemptuous to the direction of this court's dated 10.1.2011.;