IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.48760 of 2007 ASISH KUMAR BHOWMIK, SON OF LATE HARI PADA BHOWMICK, RESIDENT OF MOHALLA BARI KHANJANPUR, NEW AREA MASJID LANE, P.S.- BARARI, DISTRICT- BHAGALPUR Versus 1. THE STATE OF BIHAR 2. SRI RAM KUMAR MISHRA, ADVOCATE, C/O- CENTRAL BANK OF INDIA, BHAGALPUR. For the petitioner : Mr. Vitesh Kumar Singh, Advocate. For the State : Mr. Nawal Kishore Prasad, A.P.P. ----------- 6 25.03.2010 Heard learned counsel for the petitioner and learned counsel for the State. Challenge in this application is to the order dated 26.7.2007 passed by learned Judicial Magistrate, 1st Class, Bhagalpur in G.R. no. 3799/2004 (arising out of Barari P.S. case no. 773/2004) whereby the application filed by the petitioner for discharge has been considered and rejected. An advocate representing Central Bank of India, Bhagalpur Branch lodged an F.I.R. alleging therein that one Debasish Bhowmick was running a shop in the name and style of M/s Bhowmick Stores. On his application, certain amount was advanced by the bank by way of loan. The loanee defaulted in making payment thereof. This resulted in filing of Title (Mortgage) Suit no. 132/1993. The said suit was decreed ex-parte on 11.6.1999. The bank was found entitled to a sum of Rs. 52,000/-. On 16.6.1999, an execution case bearing Execution Case no. 16 of 1999 was filed in the court of Subordinate Judge-I, Bhagalpur for attachment of the property, for the satisfaction of the 2 decreetal amount. On 24.2.2004, one Ranjan Kumar Yadav made an application in the said execution case for impleading him as party stating therein that he had purchased the land in question from the petitioner and his mother in the year 1998 and as such he may be permitted to pay back the decreetal amount. The informant has further alleged that it was subsequently came to the knowledge of the bank that the brother of Debasish Bhawmick and others have entered into an agreement to sell on 24.9.2004 in respect of the lands in question with one Govind Singh. On these allegations, it was stated in the written report that appropriate action be taken. Cognizance was taken and subsequently an application was filed for discharge of the present petition which has been rejected. Two factors which stand crystalised from the materials on record including the F.I.R., is/are that the petitioner is not the loanee. He is one of the guarantors for the loan. The F.I.R. alleges that brother of the petitioner and others allegedly entered into an agreement to sell to one Govind Singh after the disposal of the Title (Mortgage) Suit no. 132/1993 and as such an attempt was made to commit the offence including misappropriation of the amount due to the bank. In spite of service of notice on the informant, no one has appeared to oppose the application. Agreement to sell, as alleged in the F.I.R., admittedly was not produced by any of the parties in course of investigation 3 or even thereafter. This fact shall be evident from the impugned order itself. The decreetal amount has already been deposited in the bank on 3.12.2004, 28.12.2004 and 3.5.2007. F.I.R. in the case was lodged on 24.12.2004. Agreement to sell is between two parties not affecting the interest of the bank in any manner. There appears to be no allegation that any document was forged and/or fabricated and thereafter used as genuine document in the present case. Bank is definitely entitled to the decreetal amount which has already been paid. The bank, therefore, is not a looser in any view of the matter. From the materials on record, this court gets a faint impression that the informant is sponsoring cause of others, in the present case Ranjan Kumar Yadav, who had initially filed an application in the execution proceeding for his impleadment and permission of the court to pay the decreetal amount on the ground that the disputed land has already been purchased by him in the year 1998. Learned counsel for the petitioner draws attention of the court to the document placed at Annexure-3 which indicates that subsequently the sellers/executors of the sale deed, in favour of the aforesaid Ranjan Kumar Yadav, had cancelled the aforesaid sale deed on 18.4.2001. The prosecution case entirely hinges on one allegation and that is during the pendency of the execution proceeding, an alleged agreement to sell was entered into by and between the brother of the petitioner and one Govind 4 Singh. This document and/or the sale deed, if any, following the agreement to sell in favour of Govind Singh has not been brought on record. As noticed above, the decreetal amount has already been deposited in the bank. In these fact/situation emerging from records, in my view, the continuance of the present criminal proceeding/trial, as against the petitioner, shall be sheer abuse of the process of the court. Under these circumstances, ends of justice, therefore, demands that this court interferes with the impugned order and set aside the same. This court accordingly allows this application and set aside the impugned order dated 26.7.2007 in so far as it relates to the petitioner. pkj ( Kishore K. Mandal, J. )