IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.35600 of 2010 Varun Deo Jha son of Late Krishna Deo Jha, R/O C.F.165, Refinery Township, Barauni, Begusarai. ………. Petitioner Versus 1. State Of Bihar 2. Motilal Khaitan S/O late Prabhudayal Khaitan, R/O F-2D, Pushpa Vihar, Exhibition Road, P.S. Gandhi Maidan, Town and Distt-Patna….Opposite Parties. ---------------------------------- For Petitioner:- Sri Amrendra Kumar, Adv Sri Abhimanyu Sharma, Adv. For O.P. No.2:- Sri Dronacharya, Adv For State:- Mr. Jharkhandi Upadhayaya, APP --------------------------- 6/ 20/12/2011 Supplementary affidavit on behalf of petitioner has been filed and taken on record. 2. Heard learned counsel for the petitioner as well as learned counsel for the Opposite party No.2 along with larned APP for the State. 3. Petitioner has challenged the successive orders passed by learned lower court dated 21.7.2007 passed by Judicial Magistrate 1st Class, Patna in connection with Complaint Case No. 1068©/2005 as well as order dated 24th May 2009 passed by Additional District and Sessions Judge, FTC-2nd, Patna in Cr. Revision No. 664 of 2007/203 of 2007 whereby and whereunder his prayer for discharge purported to be under Section 245 of the Cr.P.C. has been rejected. 4. It has been contended on behalf of the petitioner 2 that absolutely no material subsists against him to attract and justify continuance of instant proceeding save and except he happens to be younger brother of Rudra Deo Jha. Also submitted that no specific allegation has been alleged against him save and except that he collectively along with other co- accused took the money. 5. Also submitted that learned lower court failed to properly exercise the application of Section 245 of the Cr.P.C. in dealing with the prayer of the petitioner. Not only this, it has also been submitted that taking into account the nature of allegation, it happens to be out and out a civil dispute which do not justify continuance of criminal proceeding and so, it has been submitted that the successive orders passed by the respective courts happen to be contrary to law and is fit to be set aside. 6. To buttress his contention, learned counsel for the petitioner also relied upon decisions reported in 2008 Cr.L.J. 2757 as well as 1998(5) SCC 694. 7. On the other hand, learned counsel for the Opposite Party No.2 submitted that it is not proper stage wherein meticulous examination of evidence is required to be. Where there happens to be conjoint reading of Section 245 3 and 246 of the Cr.P.C., it is evident that the Magistrate has to form an opinion on the basis of the evidence whatever been adduced during the course of following the procedure as provided under Section 244 of the Cr.P.C. Also submitted that from cursory perusal of the evidence on record it is evident that petitioner including others have virtually induced the complainant to hand over the amount in lieu of negotiation which was tendered under criminal design to deceive the amount and further managed in succeeding Rs.6 Lacs from the complainant. 8. Further been submitted that the aforesaid amount was received by accused and was handed over by the complainant as an earnest money which till finalization of the sale deed was to be identified as an amount against execution of the sale deed. Therefore, submitted that criminal prosecution is maintainable. Also submitted that the defence whatever may be, happens to be available to the petitioner at its proper stage. So, for the present the application under Section 245 of the Cr.P.C. is not at all maintainable. Further, he relied upon a decision reported in 2006(2) PLJR 2461. 9. Learned APP opposed the prayer and followed the argument whatever been raised on behalf of the O.P. 4 No.2. 10. The complaint was filed on behalf of O.P. No.2 against the petitioner including others disclosing therein that the father of complainant, Krishandeo Jha, was well known being family Doctor (Ayurvedic) and in said circumstances other accused also became known to them. In due course of time, the accused persons disclosed that they have to sell two Katthas of land at Begusarai and for that complainant had handed over Rs.6 Lacs in the month of January 2004 which was equally divided by the accused persons. Accused, Rudra Deo and Buddhinath Jha executed document with regard thereto and further assured that they will execute the sale deed. Also handed over physical possession. Then, thereafter complainant had fenced the land from three sides. Now-a- days, accused persons began to decline to execute the sale deed. Not only thins, on 12.4.2005 they have come to the residence of complainant and demanded the document whatever been executed and handed over to him by them. So, the complainant apprehended that the accused persons duped and misappropriated the amount. 11. Accordingly, an enquiry under Section 202 of the Cr.P.C. was taken up and after concluding the same a 5 prima facie case was found against the petitioner including others for which they were summoned. After their appearance three witnesses before charge have been examined. Subsequent thereof, the stage under Section 245 of the Cr.P.C. visualizes wherein prayer had been made and its refusal by successive courts has laid filing of instant petition. 12. Before scrutinizing the factual aspect, it is relevant to incorporate Section 245 and 246 of the Cr.P.C. which certainly will play a crucial role in deciding the matter. 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. 246. Procedure where accused is not discharged.- (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) ********* (3) ********* ” 13. After having a conjoint reading of both the Sections, it is evident that the Magistrate has to see and 6 weigh the evidence primarily to see whether the evidence on record suggest for presumption of commission of an offence simultaneously, the aforesaid evidence if allowed to be unrebutted will attract the conviction. So the evidence available on the record has to be scrutinized in such manner that it could have fulfilled the requirement of Section 245 as well as 246 of the Cr.P.C. 14. The aforesaid Sections have certainly variance with Section 227, 228 of the Cr.P.C. and 239, 240 of the Cr.P.C. because of the fact that the evidence adduced under Section 244 of the Cr.P.C. is the evidence which would command even up to the final conclusion of the trial. However, meticulous examination on this score has to be forbidden. Side by side, the minor contradiction visible in the evidence of witnesses, for the present purpose, has also to be ignored and for that I would like to refer 2006 Cr.L.J. 3484 wherein at para-10 it has been held as follows:- 10. “The further argument on behalf of the petitioner is that only one witness before charge has been examined whose evidence is contradictory to the case of complainant as made out in the complaint petition because this witness in his evidence has said that petitioner along with other accused persons had gone to the office of the BSFC in the month of January when they gave three cheques each of Rs.50,000/- to him and he has further said that cheques were given to him by petitioner whereas case of the complainant as made out in the complaint petition is that on 18-12-1996 petitioner and other two co-accused 7 persons had come to the office of the BSFC and had given the cheques (Annexure-3). It is true that Arun Kumar Singh (PW-1) examined on behalf of the complainant in his evidence has said that in the month of January petitioner along with other two co-accused persons had come to the office of BSFC when cheques were handed over. It is also true that he has said that petitioner and co-accused Anant Ram handed over the cheques to him and in the act of handing over the cheques he had not named accused Brijendra Prasad. The complainant has yet to examine other witnesses and merely for a minor contradiction in the evidence of PW-1 that accused persons had gone to the office of the BSFC in the month of January whereas in the complaint petition it is mentioned that accused persons had gone there on 18-12-1996, the entire case of complainant cannot be disbelieved particularly when his evidence supports the case of complainant that petitioner along with two other accused persons had come to his office and petitioner and co-accused Anant Ram handed over the cheques to him. The question when the cheques were handed over the petitioner was not a director of the company because prior to that he had already resigned from that post is to be decided by the Court below. Besides this, finding on this point in favour of the petitioner will not itself absolve the petitioner from the entire allegations made in the complaint petition which includes the conduct of the petitioner in going to the office of the BSFC along with other accused persons, handing over the cheques, giving assurances that cheques would be honoured, making the request for restoring the supply of wheat to the company of accused persons etc. At the time of framing of the charge, the Court has to see whether a prima facie case is made out against an accused or not and if it is satisfied that prima facie case is made out it will frame charge against him. In the present case, complainant was examined on SA and thereafter one witness on his behalf was also examined and the learned Magistrate, after considering the materials on record was satisfied that there is prima facie case as made out against the petitioner and in view of this fact he has rejected the prayer of petitioner to discharge him. As discussed earlier the accused cannot claim discharge only on the ground that he had already resigned from the post of Director before the cheques were issued in favour of the BSFC.” 8 15. Therefore, for the present I do not see any cogent reason to interfere with the successive orders. Accordingly, prayer of the petitioner is found to be devoid of merit and rejected. 16. However, it will be open for the petitioner to place all the relevant facts, law at the appropriate stage of the trial. perwez (Aditya Kumar Trivedi,J.)