IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.33630 of 2007 KRISHNA KUMAR, Son of Late Motilal Rai, resident of village- Aloni, P.S. Garkha, District- Saran. . . . . . . . Petitioner. Versus THE STATE OF BIHAR. . . . . . . . . Opposite party. ----------- 13/ 04.02.2010 Heard learned counsel for the petitioner and the State. The petitioner has moved this Court against order dated 04.01.2007 passed by Judicial Magistrate, Saran in Tr. No. 1154 of 2006 / 914 of 2007 corresponding to Chapra (Town) P.S. case no. 241 of 2003 whereby learned court below rejected the petition dated 19.12.2006 filed on behalf of petitioner to discharge him from all the charges under Sections 406, 409/34 of the I.P.C. The Executive Engineer, Tube well Division, Chapra lodged an F.I.R. that a sum of Rs. 1,58,756/- was withdrawn from treasury for making payment of retiral dues of one Jainath Sah. F.I.R. was lodged against the petitioner and one Narmdeshwar Sharma, the then Executive Engineer and this petitioner was the then cashier. The police after investigation submitted charge-sheet against both petitioner and Narmdeshwar Sharma. Learned counsel submits that disciplinary proceeding was initiated against petitioner and he was dismissed from the service and later on part of the amount was also recovered. Learned counsel by referring to various documents, as contained in Annexures- 2, 3, 4 and 5 of the supplementary affidavit, states that the same would show the innocence of the petitioner. He submits that the aforesaid documents are a part of the case diary. He submits that this case is at least on equal footing to that of one Narmdeshwar Sharam, whose application - 2 - against rejection of discharge petition was allowed by a Bench of this Court vide order dated 31.05.2007 passed in Cr. Misc. No. 5655 of 2007. Learned counsel for the State submits that the case of the petitioner is distinguishable from that of the aforesaid Narmdeshwar Sharma inasmuch as that the informant Jainath Sah, affected employee, in paragraph 61 and his son in paragraph 62 stated that petitioner took his signature on a blank piece of paper and thus has committed offence under Sections 406, 409/34 of the I.P.C. Learned counsel for the State submits that charge can be framed even on grave suspicion. He submits that the case of the petitioner would be tested on its own merit. Having heard the counsel for the parties. The petitioner submits that if he gets an opportunity, he can show that in the facts and circumstances of the materials available on record, no case would be made out against the petitioner under Sections 406, 409/34 of the I.P.C., as the money have not been misappropriated but the same has been transferred in another fund. In view of the above circumstances, this Court remits the matter back to the Judicial Magistrate, 1st Class, Chapra in seisin of this case. This Court grants a chance to the petitioner to show to the learned court below that no case is made out against him. In case, after hearing the counsel for the petitioner, court finds that his case is distinguishable from that of Narmdeshwar Sharma and there is material for framing of charge, it would pass appropriate order within - 3 - two months from the date of receipt of this order. With the aforesaid observation, the case is remitted to the court concerned to pass fresh order in Tr. No. 1154 of 2006 / 914 of 2007 corresponding to Chapra (Town) P.S. case no. 241 of 2003. The impugned order would be kept in abeyance till fresh order passed by the court below. Uday/ (Samarendra Pratap Singh,J).