( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 795 OF 2009 Mohan s/o Dattatraya Gore PETITIONER VERSUS The State of Maharashtra RESPONDENT ..... Mr. P.D. Kale, advocate for the petitioner. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 11th September, 2009] PER COURT : 1. Heard. 2. The petition is filed for the purpose of discharge in a theft case registered vide crime No. 4/2007 which has culminated in filing of chargesheet on basis of which a criminal case bearing R.C.C. No. 253/2007 is pending on file of learned Judicial Magistrate (F.C.). The petitioner filed application for discharge. The learned Judicial Magistrate has rejected his application. ( 2 ) 3. It is contended by learned counsel that the petitioner is falsely involved in the criminal case though he was on duty being Extension Officer and that the criminal case is instituted with mala fide intention to harass him and his family members. It is further argued that when there is no recovery of the alleged stolen raw cotton, the petitioner cannot be implicated in the criminal case pertaining to theft of the raw cotton. It is contended that the allegations are false on the face of the same because the complaint shows, prima facie, that in the relevant evening at about 8 p.m., the petitioner, his brother and father plucked raw cotton from agricultural land of the complainant and took away approximately 2 to 2 & ½ quintiles raw cotton. Whether the applicant and other two (2) accused could have removed such cotton and manually transported the same from the land or had arranged to transport the same is a question of fact. Whether the petitioner was present in the agricultural land of the complainant in the relevant evening is a disputed question of fact. Whether there is sufficient evidence regarding the ( 3 ) alleged theft and that due to absence of recovery of the raw cotton from possession of the petitioner, he may be acquitted is the question which can be determined only after the trial. The plea of alibi is raised by way of defence. It is well-settled that defence of the accused cannot be used as plank for such kind of petition seeking discharge from the criminal case. No case is made out to warrant interference. It may be made clear that if the criminal case is found to be false one, the petitioner may be compensated by the criminal Court/Civil Court. Consequently, the petition is dismissed. The trial be expedited. [ V.R. KINGAONKAR ] JUDGE NPJ/criwp795-09