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2000 DIGILAW 1190 (PAT)

K. K. Sharma And Others v. State Of Bihar

2000-10-20

D.N.PRASAD

body2000
Judgment D.N.Prasad, J. 1. This Criminal Revision is directed against the order dated 9.11.1998 passed by the Judicial Magistrate, 1st Class Dhanbad in connection with Dhanbad PS Case No. 1091 of 1995, corresponding to G.R. No. 4698 of 1995, whereby and where under the learned Judicial Magistrate rejected the prayer of the petitioners for discharge. 2. The prosecution story in brief was stated that one F.I.R. was lodged by submitting written report stating, inter alia that there was a financial irregularities of the College namely, Bharat Sewak Samaj Mahila Mahavidyalaya, Dhanbad. Two letters explaining about the financial position were sent to petitioner No. 2, namely, Nawai Kishore Prasad Singh for producing auditors report and the balance-sheet. The audit report was made available to the Informant. Another memo No. 185 dated 4.9.1995 was sent to the professor-in-charge to direct the Accountant to produce the accounts books and documents pertaining to the College which could not be followed. It was detected from the inspection of the records that during the financial year 1995-96 the misappropriate was to the extent of Rs. 8,63,496.91 ps. It is also alleged that the Prof. Sunil Kumar had received a bearer cheque against the expenditures made on building construction and there is allegation about misappropriation of huge amount and as such on the basis of the written report, the F.I.R. was registered against the petitioners for the offence under Sec. 406, 408 and 420 of the Indian Penal Code. 3. The earned Counsel appearing on behalf of the petitioners, at the very outset, submitted that actually, there is no misappropriation of any amount rather there was a difference of accounts as well as there is nothing specific or direct evidence against the petitioners that they had ever embezzled or misappropriated any amount. It is because no embezzlement has been taken place in the knowledge and just to exclude the present governing body from the discharge of its duty in the matter of College affairs, this false has been initiated against the petitioners. It is also submitted that the learned Sessions Judge while disposing of the Bail Petition Nos. It is because no embezzlement has been taken place in the knowledge and just to exclude the present governing body from the discharge of its duty in the matter of College affairs, this false has been initiated against the petitioners. It is also submitted that the learned Sessions Judge while disposing of the Bail Petition Nos. 197 of 1996 and 200 of 1996 clearly observed that the allegation of the Informant in the FIR are not factually correct and without taking pains to verify the actual state of affairs including the expenditure made by the College authorities, the Informant came to a faulty conclusion about misappropriation of the amount. It was also observed that there was no dispute by the prosecution regarding the payments made to Vinoba Bhave University to the tune of Rs. 4,82,510.00 . It is further argued that the learned Magistrate rejected the petition for discharge on flimsy ground and has not discussed any material or evidence collected during investigation and as such, the impugned order is fit to be set aside. 4. On the other hand, the learned A.P.P. fairly conceded in course of argument that the learned Magistrate except observing about prima facie case, nothing has been discussed in detail, nor any evidence collected during investigation has been cited. 5. On perusal, it appears that the learned Sessions Judge while disposing of the Bail Petition Nos. 197/96 and 200/96 observed clearly that the allegations of the Informant in the F.I.R. are not factually correct as well as the Informant did not controvert regarding the payment to the extent of Rs. 4,82,510.00 made to Vinoba Bhave University. Apparently, the learned Magistrate did not take pain in discussing the evidence collected during the investigation and available in diary and he passed the order impugned mechanically holding prima facie case without discussing any evidence collected during the investigation and as such the impugned order is fit to set aside. 6. Sec. 240(1) of the Code of Criminal Procedure reads as follows: If, upon such consideration, examination, if any, and hearing, 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. 7. 7. Thus, the learned Magistrate should have come in conclusion as to whether there is a ground for presuming that the accused-persons have committed an offence. It is well settled that the Magistrate has to apply his judicial mindfully adverting to the material on record for considering whether or not, there is ground for presuming the commission of the offence by the accused and he must not automatically come in conclusion for framing charge on the mere presumption of prima facie case. 8. In the above facts and circumstances, the impugned order dated 9.11.1998 is, hereby, set aside. The matter is remitted back to the Court concerned for passing afresh order after hearing both the parties on the point in accordance with law.