JUDGMENT :

Jasjit Singh Bedi, J.

The prayer in the petition under Section 482 Cr.PC is for quashing of the Complaint instituted on 08.08.2014 under Sections 406, 420, 323, 506 and 120-B IPC bearing Criminal Complaint No. 193/2014 titled as "Bansi Lal vs. D.S. Constructions Ltd. & Ors. (Annexure P-5), the summoning order dated 01.02.2017 (Annexure P-7) along with all consequential proceedings arising therefrom.

2. As per the allegations levelled by the complainant/respondent he had supplied construction material amounting to Rs.7,43,55,590/- (Rupees Seven Crore Fourty Three Lac Fifty Thousand Five Hundred Ninety only) to the firm of the petitioner, namely, D.S. Construction with respect to the construction of the Kundli Manesar Palwal Expressway. While a payment of Rs.5,99,21,605/- had been made, the accused had refused to pay the balance amount of Rs.1,44,33,985/-. As the said payment was not made, he had gone to their office in South Extension, New Delhi where he was beaten up by the accused and threatened that he would be finished off if he demanded his money. A copy of the said complaint dated 08.08.2014 is attached as Annexure P-5 to the petition.

3. Based on the complaint and preliminary evidence, all the accused including the petitioner came to be summoned by the court of Judicial Magistrate, 1st Class, Gurugram for having committed the offences punishable under Sections 420, 406, 323, 506 and 120-B IPC vide order dated 01.02.2017. A copy of the said order is attached as Annexure P-7 to the petition.

4. The aforementioned complaint and summoning order are under challenge in the present petition.

5. The Counsel for the petitioner contends that a bare perusal of the complaint and the summoning order would reveal that the case is purely of a civil nature. As per the allegations, the material had been supplied for which part payment had been made but the remaining payment had not been made. This would constitute the filing of a civil suit for recovery at best and there was nothing to suggest that the accused had a dishonest intention at the very inception. Be that as it may the entire amount had been paid to the complainant. There was no corroborative evidence of the complainant being beaten up. In fact the complaint had been filed since the civil suit was barred by limitation. The cheating pertained to the year 2011 but he had chosen to file a complaint only in 2014 by setting up the allegations of beating. The summoning order was completely cryptic and non speaking. The petitioner was a resident of a New Delhi and the complaint had been filed at Gurgaon. Therefore, there was violation of Section 202 Cr.PC as no enquiry had been held prior to the passing of the summoning order. He, therefore, contends that the complaint and the summoning order were liable to be quashed. Reliance is placed on the judgments in Deepak Gaba & Ors. Vs. State of Uttar Pradesh & Another 2023 (1) RCR (Criminal) 659, Veer Prakash Sharma Vs. Anil Kumar Aggarwal 2007(3) RCR (Criminal) 960, V.Y. Jose & Ors. Vs. State of Gujarat 2009(1) RCR (Criminal) 869 and Anil Kumar & Ors. Vs. State of Punjab & Ors. CRM-M-23194-2010 Decided on 23.05.2019.

6. The Counsel for the Complainant on the other hand contends that there was no evidence to substantiate the argument of the petitioner that the complete payment had been made to the complainant. In fact the petitioner had cheated the answering respondent because all the relevant record had been misappropriated. From a reading of the complaint and the preliminary evidence the offences under Sections 323, 506 IPC were clearly made out. The petitioner was an accused in other cases of similar nature. As the offence was prima facie established, the present petition was liable to be dismissed.

7. I have heard Counsel for the parties and examined the record.

8. Before proceeding further it would be apposite to refer to the judgments relied upon by the counsel for the petitioner and the same are reproduced hereinbelow:-

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