PRABHAT KUMAR SINGH, J.:–The present application has been filed for quashing the order dated 24.02.2020 passed in Rajiv Nagar PS Case No. 222 of 2015 by the learned court of Additional Chief Judicial Magistrate XI, Civil Court, Patna whereby and whereunder learned court below has been pleased to reject the discharge petition filed by the petitioners under Section 239 of the Code of Criminal Procedure.

2. The prosecution case in brief is that informant/complainant Smt. Alka Verma had filed a complaint petition bearing No. 2881(C) of 2015 with a prayer to refer the matter under Section 156(3) of the Code of Criminal Procedure to the Rajiv Nagar Police Station for institution of FIR and accordingly, FIR was lodged against the petitioners. The complainant in her complaint petition alleged that accused persons are the Director and Managing Director of the company M/s Neelkantha Solution Pvt. Ltd. and Others which had entered into a development agreement on 05.10.2012 with the landlord namely, Nirmala Devi for construction of a multistoried apartment.

3. It is further alleged that all the accused persons had assured the complainant that he would construct the flat within three years. It is further alleged that upon the assurance of the accused persons the complainant had entered into an agreement for sale dated 03.12.2013 for Flat No. 106 consisting of an area of 1110 sq. ft. including one car parking space bearing Parking space no. 5 for the price of Rs. 24,59,000/- and also made an advance payment of Rs. 3,50,000/- at the time of execution of the said agreement for sale dated 03.12.2013.

4. It is further alleged that as per the terms and conditions of the agreement, the husband of the complainant made payment of Rs. 5,50,000/- to the accused (petitioners), but in spite of huge payment apartment was not constructed within the time and thus, accused persons had cheated the complainant.

5. That on the basis of aforesaid complaint case, Rajiv Nagar PS case No. 222 of 2015 dated 24.08.2015 under Sections 406 and 420 was instituted against the petitioners and others and after investigation charge-sheet was submitted vide Charge Sheet No. 231 of 2016 dated 31.10.2016 under Sections 406, 420 and 34 of the Indian Penal Code and accordingly summons were issued against all the accused persons including these petitioners. After coming to know about the issuance of summons, all the accused persons including petitioners appeared before the court below and filed a discharge petition under Section 239 of Cr.P.C dated 13.03.2019 which has been dismissed by the impugned order mechanically without application of mind.

6. Petitioners have challenged the impugned order on the ground that complaint petition does not disclose that complainant approached the police station for registration of the case or complained to the higher police officials against non-registration of the case and abruptly made prayer in the complaint petition to get the same registered under Section 156(3), in other words it is submitted that the complaint was not filed after compliance of the statutory provision of 154(1) of the Code of Criminal Procedure and 154(3) of the Code of Criminal Procedure and the learned court below without taking note of the fact that complainant has not complied with the mandatory provisions, mechanically sent the aforesaid complaint petition for lodging the FIR and issued summons against the petitioners. In support of the same, petitioners have relied upon a case decided by the Apex Court in Priyanka Srivastava & Anr. Vs. The State of UP & Ors. reported in 2015(6) SCC 287.

7. In this case, Opposite Parties have already appeared. No counter affidavit has been filed on behalf of State/Opposite Party No. 2 in spite of several indulgence. However, submission of the learned counsel for the opposite parties is that since in this case charge-sheet has already been submitted against the petitioners for offence under Sections 406, 420 and 34 of the Indian Penal Cod