IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.17834 of 2010 Digvijay Mishra & Anr Versus State Of Bihar & Anr ----------- 4/ 29/09/2011 Heard learned counsel for the petitioners and learned APP. 2. Learned counsel for the petitioners has challenged the order dated 15.04.2010 whereby and whereunder prayer under Section 245 of the Cr.P.C. has been rejected by the learned lower court. 3. Contention on behalf of the petitioner is that both the parties are inter-related and there happens to be property dispute. Therefore, whatever remedy happens to be, that gives a civil cause under civil banner for which civil suit would have been filed in stead of attracting the criminal prosecution which is not at all warranted. To support his plea also referred 2001(3) SCC 513. 4. The State has opposed. 5. For better appreciation of the matter in hand, Section 245 has to be looked into which is as follows:- “Sec.245.-When accused shall be discharged.- (1) If, upon taking all the evidence referred to in section 244 the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. ” 2 6. From plain reading of Section 245, it is evident that the accused should be given an opportunity of discharge only in case, having evidence of record unrebutted would not have culminated in conviction of the accused that means to say, nature of evidence whatever been adduced on behalf of the prosecution appears to be so worthless on its face that even without having the procedure adopted under Section 246 of the Cr.P.C., that could not have resulted in the conviction of the accused. So far as present allegation is concerned, I do not want to scrutinize so that it should not affect the future interest of any of the party but the fact remains that an occurrence took place under the garb of land dispute. Therefore, the criminal action was allowed to take into motion in the background of land dispute and for that I would like to rely upon paragraph-10 of the judgment so referred by the learned counsel for the petitioner and the relevant paragraph happens to be like this: “ When somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is a dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have right to sue for damages or compensation and at the same time, the law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating.” Subsequent thereof, the facts of the case has 3 been dealt with. 7. From the pleading it transpires that the petitioners have not challenged the document executed by Smt. Shobha Devi in favour of complainant. On the other hand, the other annexures placed by the petitioners show that there happens to be continuous acrimony amongst the parties for whatever the reason may be. So, for the present, the only criteria remains, as discussed above, over which, the learned counsel for the petitioner has not been able to controvert the evidence whatever been produced on behalf of the complainant. The grounds whatever been taken by the learned counsel for the petitioner may be good ground in their defence but that does not come in between to forbid the court below after having the proper charge framed against the petitioner. 9. Accordingly, the petition is found to be devoid of merit and is dismissed. perwez (Aditya Kumar Trivedi,J.)