IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.34579 of 2007 KRISHNA KANT VERMA son of Late Dineshwar Prasad, resident of Mohalla Hajipur, Ward No.4, P.S. and District Khagaria. . . . . . Petitioner. Versus 1. THE STATE OF BIHAR 2. Maheshwar Prasad son of Late Ambika Sahai, resident of Mohalla Hajipur, Ward No.4, P.S. and District Khagaria. . . . . . . Opposite parties. ----------- 7/ 12.11.2009 Heard learned counsel for the petitioner and the State. In the instant application petitioner has prayed for quashing the order dated 18.04.2007 whereby Sub-Judge 1st, Khagaria has disposed of the petition dated 27.05.2003, filed under Section 340 of the Code of Criminal Procedure, for making an enquiry against defendant no.1. The petitioner filed Title suit no. 99 of 2000 for passing preliminary decree for partition of suit property. Petitioner submits that only defendant no.1 (opp. Party no.2) appeared and filed written statement denying the claim of the plaintiff-petitioner. In support of his claim, opposite party no.2 filed Ext. D in the title suit, which, according to the plaintiff-petitioner, was a forged document, as such petitioner filed an application under Section 340 of the Code of Criminal Procedure on 27.05.2003 to make an enquiry and take further legal action against the opposite party no.2. After hearing the counsel for the parties, Sub-Ordinate Judge 1st, Khagaria observed by his order dated 18.04.2007 that there is no merit in the petition dated 27.05.2003 for taking action under Section 340 of the Code of Criminal Procedure. He, however, thus, disposed of the application. Learned counsel for the opposite party no.2 submits that - 2 - against the impugned order dated 18.04.2007 passed by Sub Judge-Ist, Khagaria, no application under Section 482 of the Code of Criminal Procedure would lie, rather only appeal under Section 341 of the Code of Criminal Procedure would be maintainable. Refuting the contention of opposite party no.2, learned counsel for the petitioner submits that the trial court has not rejected the application, as such no appeal has been filed. In my view, the contention of the petitioner is fallacious and is fit to be rejected. Section 341 of the Code of Criminal Procedure states that any person on whose application any court other than a High Court has refused to make a complaint under sub section 1 or sub section 2 of Section 340 of the Code of Criminal Procedure or against whom such a complaint has been made by such court, may appeal to the court to which such former court is subordinate. In the instant case, the trial court has refused to make a complaint under sub section 1 of Section 340 of the Code of Criminal Procedure, as such appeal was fully maintainable. Further more, the contention of the petitioner that his application has not been rejected is not acceptable as the trial court disposing of his application stated that there is no merit in this application, as such the use of words ‘disposed of’ by the trial court would not come to any aid of the petitioner, if same has been rejected in substance on merit. In such circumstances, I find that this application is not maintainable and the same is dismissed as being non-maintainable. However, it will be open to the petitioner to file an appeal - 3 - before the appropriate court under Section 341 of the Code of Criminal Procedure. It will be open to the petitioner to make a prayer before the court concerned for condonation of delay as he was pursing his remedy before this Court. Uday/ (Samarendra Pratap Singh, J.)