- (1.) This application has been filed for quashing the proceedings of case no. 1699 of 2014 (Dr. Bhanupratap Singh Vs. Mahendra Pratap Singh) under Section 420, 406 IPC, Police Station Cantonment, district Varanasi pending in the court of Additional Chief Judicial Magistrate, Court No. 9, Varanasi. Submission of the learned counsel for the applicant is that offence under Section 406 IPC is not attracted against the present applicant. Complaint was filed at belated stage. The money said to have been given to the applicant was given to the society. Applicant was President of the society from 1992 to 1994. In fact the applicant was entitled to receive 2% charges as mediator from the opposite party by way of commission in respect of the execution of the sale deed. Complainant was unwilling to pay the said amount, therefore, present complaint was filed on the basis of false facts. There is no any documentary evidence in support of the complaint. It was further argued that receipt filed in support of the complaint case regarding payment of the money are the photostat copy which are not admissible in evidence.
(2.) Learned A.G.A. as well as learned counsel for the complainant argued that there is no any denial of the receipt in the application. Payment was made through cheque. A prima facie case is made out against the applicant. Payment was made when the applicant was the President of the society and he had received the payment giving the assurance that the complainant will be allotted some plots. The applicant cannot say that he is not responsible as he was the President of the society and was responsible for the day to day affairs of the society. Additional payment was made in the year 2007 also. It is a clear breach of trust. The defence taken by the applicant can be looked into during trial after evidence. Thus prayer has been made to dismiss the application.
(3.) I have considered the rival submission of the parties and have gone through the entire record. A perusal of the record goes to show that the applicant was summoned in the aforesaid complaint for the offence under Section 406 IPC. It is also evident from the record that the applicant was the President of the said society at the relevant time. Payment has been made not only for the membership but also for the allotment of the plots. Defence taken by the applicant requires evidence which can be dealt with in the trial after collecting the evidence. Case of the complainant is that he had paid certain amount time to time and the applicant had assured to execute the sale deed in favour of the complainant but sale deed was not executed. Recovery of the paid money may be a case of the civil nature but at the same time payment was received by the applicant to execute the sale deed as a President of the society. Neither money was returned nor the sale deed was executed. Thus it cannot be said at this stage that no prima facie case for the offence under Section 420, 406 IPC is made out against the applicant. The Court dealing with the matter has to see only a prima facie case at this stage. Essential ingredients to constitute the offence under Section 420, 406 IPC is available in the matter, therefore, application being devoid of merits is liable to be dismissed.;