ADITYA KUMAR TRIVEDI, J.:–From the successive order-sheets, it is apparent that perceiving the dispute amongst the parties to be contractual one, O.P. No.2 was noticed, whose appearance though was secured during admission stage having by way of counter affidavit (Flag A), but became absent since thereafter and further, it also transpires that on a disclosure that Request Case No. 61/2007 (Arbitration proceeding) was going on, therefore, parties were directed to avail the aforesaid opportunity in order to come to a logical end which is found lingering on account of non co-operation of O.P. No.2/complainant by way of their absence and thus, vide order dated 21.01.2014, instant petition has been admitted. Again O.P. No.2/complainant has been noticed on the score of hearing even then, O.P. No.2 failed to appear and on account thereof, considering the matter pending since 2007, it has been heard.

2. It is also apparent from the record that initially, petition was filed by Kanodia Developers Private Limited as petitioner no.1 as well as Indra Kumar Kanodia, petitioner no.2 exposing himself to be Managing Director of petitioner no.1. During pendency of instant petition, Indra Kumar Kanodia died and on account thereof, I.A. No. 1870/2013 has been filed by one Anand Kanodia to permit him to pursue with the instant petition as a Director of the Company after death of Indra Kumar Kanodia, petitioner no.2 which had been allowed vide order dated 06.01.2014.

3. Petitioners have prayed for quashing of order dated 23.12.2006 passed by Sri Prem Chand Anal, Judicial Magistrate-1st Class, Patna by which, the learned Magistrate took cognizance for an offence punishable under Sections-403 and 418 IPC summoning the petitioners including other to face trial in Complaint Case No. 2918 (C)/2006.

4. The brief facts of the case as is evident from complaint petition (Annexure-1) filed by O.P. No.2 gave vivid picturisation of event, however, the gist is that, in between the parties there was a contract for construction of multi-story building over 11 Katthas 5 Dhurs of land located at Sri Khrishna Puri, Patna which belong to complainant/OP. No.2 and his family members whereunder O.P. No.2/Complainant and his family members were entitled for 46% while 54% was allotted to the builder, petitioners/accused and for that an agreement was executed on 18.02.2001 wherein period of completion was specified as 3 and ½ years from the date of sanction from PRDA with further Clause of grant of grace period. It has also been disclosed that complainant had borrowed Rs. 15 Lakhs from the petitioners/accused which, in his view was a friendly loan but, accused clutched the aforesaid amount with 18% loan interest. It has also been disclosed that as the complainant’s wife developed cancer, on account thereof, the complainant took further loan of Rs. 8,40,000/- over which, again accused persons are demanding 18% of interest. It is further disclosed that in spite of having specific averment regarding completion of construction work and handing over possession within stipulated period of 3 and ½ years from the date of sanction of PRDA, no construction was completed during intervening period. Even though, the accused persons disclosed that building is complete and so possession be taken, the same was not found according to their choice as well as the accused persons also advanced demand against electric fittings. It has also been averred that accused persons in contravention of terms of agreement whereunder the flats were duly identified to be handed over to the complainant and his sister and others, they did not hand over rather some of the flats have illegally been retained by the builders. On account thereof, there happens to be breach of trust at the end of accused, who as per agreement was agent for the purpose of construction of house. It has further been submitted that during the intervening period accused persons have created forged document to defeat interest of complainant

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