IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.54787 of 2007 Ashok Kumar Mehta, son of Sri Mahabir Prasad Singh, village Mirja Nagar, PS Mahua, district Vaishali – Petitioner. Vs. 1) The State of Bihar, 2) Sri Shivendu Ranjan, Assistant Project Officer, District Rural Dev. Organization (Abhikaran), Vaishali at Hajipur – Opp. Parties. 12 19.5.2011 Heard learned counsel for the petitioner and the State. The petitioner is aggrieved by order, dated 1.10.2007 by which the application filed under section 239 of the Code of Criminal Procedure has been rejected. The petitioner who is a contractor, was given to repair the road from Mahua-Samastipur to Mirja Nagar. An advance of Rs. 12 lakhs was given to the petitioner. It is said that the petitioner completed part of the work. It is alleged that part of the road which was to be repaired remained incomplete. The advance amount of Rs. 3 lakhs remained with the petitioner which has not been returned. As such an FIR was instituted by the Assistant Project Officer, Vaishali. This court had called for the case diary as it was submitted on behalf of the petitioner that there is no material except the FIR and the re-statement of the informant to support the prosecution version. The court below has rejected the discharge application on the basis of the statements made at paragraphs 47 and 48 of the case diary. Paragraph 47 contains the statement of Ram Vishal Choudhary. In his statement before the I.O., he accepts the fact that the petitioner had not completed the 2 work on 28.6.2001 due to intervention of rainy season. It is reported that after that the petitioner was able to complete the work by the 1st week of April 2002. This statement does not support the facts stated in the FIR. In fact in the FIR it is stated that during the inspection by the Assistant Engineer, Mahua on 10.4.2002, about 4.5 KMs of the road was found left unrepaired. I find that both the statements are contradictory. This court cannot on the basis of such facts hold that the petitioner is innocent and not liable to be sent up for trial. This application is, thus, dismissed. haque ( Sheema Ali Khan, J.)