Mukhtar Ahmad, J. - (1.) This application under Section 482 Cr.P.C. has been filed for quashing the criminal proceedings of Complaint Case No. 718 of 2009 under Section 406 I.P.C., P.S.- Govind Nagar, District- Kanpur Nagar pending in the Court of Learned Metropolitan Magistrate, 10th Kanpur Nagar also to quash the summoning order dated 21.8.2008 passed in the aforesaid case. Further proceedings of the aforesaid case are also prayed to be stayed.
(2.) It appears that a complaint was filed on 20.02.2008 by opposite party no.2-Guruvachan Singh against applicant-Narendra Singh by saying that both are real brothers and an offer was made by applicant for business establishing of purchasing and selling of old scooters and motor cycles along with spare parts which was started by both on 15.5.2001 in premises bearing No 108/1, P. Road, Kanpur Nagar under name and style of M/S Narendra Scooters in which applicant and opposite party spent Rs.75,000/- each and a partnership deed dated 15.5.2001 was also executed. As per terms and partnership deed the profit and loss was to be shared by both of them in equal share. That after 2-3 months of starting the business opposite party (in complaint) Narendra Singh closed the business and sold the aforesaid shop for Rs.2,40,000/- and all of money was usurupt by him; that on coming to know about this fact Guruvachan Singh demand Rs.75,000/-+Rs.1,20,000/-total Rs.1,95,000/- from Narendra Singh but he avoided to pay the same on one ground or to the other. Lastly on 24.11.2007 money was agreed to be paid but when the Guruvachan Singh went to took the money but he was abused and ousted. Thereafter on 18.12.2007 a registered notice through his advocate was served upon Narendra Singh and subsequently on 17.01.2008 a registered notices was also sent through advocate but opposite party failed to pay the money. It was also mentioned that applicant had given the tehrir to the police station Govind Nagar but no action was taken; that opposite party has usurupt the money and there was a criminal breach of trust and forgery on the part of the opposite party. It was prayed in the complaint that accused be summoned for facing the trial under Section 406,420, 504, 506 I.P.C. and be punished accordingly. The statement of applicant Guruvachan Singh was recorded under Section 200 Cr.P.C. while witnesses Bijender and Ravindra Singh were examined under Section 202 Cr.P.C. The learned Magistrate after considering the evidence observed that prima facie case was made out against opposite party under Section 406 I.P.C. only and he further observed that there was no any justifiable ground for summoning the accused under other sections. Consequently applicant- Narendra Singh was summoned for facing the trial under Section 406 I.P.C. only vide 21.8.2008. Challenging the proceedings and summoning order the instant applicantion has been filed.
(3.) I have heard Mr. Dhiraj Kumar Dwivedi, holding brief of Mr. K.K. Tripathi, learned counsel for the applicant, Sri Sudip Pathak, learned counsel for the opposite party and learned A.G.A.;