JUDGMENT - S.S. PARKAR, J.:---The petitioner who is an Advocate has filed the present petition for quashing of Criminal Case No. 2798/P of 1994 pending in the Court of 44th Metropolitan Magistrate, Andheri, Bombay for offences punishable under sections 420, 467, 468 and 471 read with section 114 of Indian Penal Code registered under C.R. No. 927 of 1986 by the D.N. Nagar Police Station. 2. The brief facts, leading to the filing of this petition for quashing the proceedings, arise in the following circumstances : The State Bank of India, Jogeshwari (West), Bombay branch filed a complaint on 8-10-86 against one Kishore Vinayak Bidaye for the offence of forgery and using forged documents to induce the Bank to part with the cash amount of Rs. 5,50,000/-. The said Kishore Vinayak Bidaye is shown as accused No. 1 in the complaint. The name of the present petitioner was added subsequently on the basis of the investigation made by the police after recording statement of Chintaman Vishwanath Panshikar. As per the complaint accused No. 1 opened an account with the State Bank of India, Jogeshwari with the help of introduction by the Bank officer by name R.D. Punde. He had deposited three cheques, two of two lakhs each and one of five lakhs issued by following parties for deposit in fixed deposits for a period of 5 years. (i) Railway Goods Clearing Forwarding Establishment Labour Board for Rs. 2 lakhs. (ii) Nathdwara Temple Board for Rs. 2 lakhs. (iii) Hyderabad Sindh National Collegiate Board for Rs. 5 lakhs. Thereafter the accused Nos. 1 and 2 produced letters from the first two parties to grant over draft facilities to the accused No. 1. Accordingly accused No. 1 took loan of Rs. 3 lakhs in his own name against the first two F.D.Rs. It appears that the accused No. 1 had taken loan of Rs. 2,50,000/- against the F.D.R. of Rs. 5 lakhs issued to Hyderabad (Sind) National Collegitate Board. Thus he took total loan in the sum of Rs. 5,50,000/- against the above 3 Fixed Deposit receipts. Later on it was discovered by the Bank that accused Nos. 1 and 2 had submitted forged letters from the above parties to the Bank to obtain loans. Hence Bank filed F.I.R. 3. After filing of the F.I.R. the police made investigation. Thus he took total loan in the sum of Rs. 5,50,000/- against the above 3 Fixed Deposit receipts. Later on it was discovered by the Bank that accused Nos. 1 and 2 had submitted forged letters from the above parties to the Bank to obtain loans. Hence Bank filed F.I.R. 3. After filing of the F.I.R. the police made investigation. In the course of the investigation the police recorded the statement of Chintaman Vishwanath Panshikar, an employee of the Bank. The said witness has given his statement to the police on 9-6-86. His further statement was recovered by the police on 12-11-86. The said witness had not implicated the present petitioner in his earlier statement dated 9-10-86 by name. However, in his subsequent statement dated 12-11-1986 he has involved the present petitioner as one of the two persons who used to accompany accused No. 1 as his representative and produced forged documents in respect of Railway Goods Clearing Forwarding Establishment Labour Board and Nathdwara Temple Board and helped accused No. 1 to withdraw the loan amount from the Bank. 4. As the charge-sheet was not submitted for long time the petitioner applied for discharge on 7-1-1988. Subsequently charge-sheet came to be filed on 28-4-1988 against three accused. The petitioner thereafter filed discharge application under section 239 of Cri.P.C. which was rejected by the Magistrate observing in para 7 of the order as under : “While going through the papers of investigation and on application of judicial mind I do find there is ground for presuming the commission of the offence by accused No. 3 since the statement of the witness Panshikar is sufficient for my adoption that there is prima facie evidence to frame charge against the accused No. 3. Hence the application of accused No. 3 for discharge is rejected.” 5. Thus the learned Magistrate has rejected the application for discharge of the accused only on the basis of the statement of witness Panshikar dated 12-11-86. The petitioner, therefore, has filed this present petition for quashing the above case pending against him on the ground of delay and on the ground that there is no evidence against the petitioner for committing him to trial. 6. As regards the second point, the petitioner's contention is that in the entire charge-sheet the only evidence against him is the statement of Chintaman Vishwanath Panshikar. 6. As regards the second point, the petitioner's contention is that in the entire charge-sheet the only evidence against him is the statement of Chintaman Vishwanath Panshikar. Even the order of the trial Court rejecting the application for discharge annexed as Exhibit “F” to this petition appearing at pages 79-81 places reliance on the statement of the said witness. Thus the only piece of evidence against the petitioner is the statements of the said witness annexed at pages 45 and 64 of the petition paper book, being part of Exhibit “A” i.e. the charge-sheet filed against the accused in the Magistrate Court. After perusal of the said statement I find that it does make out a prima facie case against the petitioner. However, the petitioner has amended this petition and averred that the said witness Chintaman Vishwanath Panshikar had died on 20-1-1990. A copy of the death certificate issued by the Municipal Corporation of Greater Bombay on 7-2-90 is annexed at page 89-A of the petition. It is, therefore, contended that since the said witness will not be available to give evidence against the petitioner no useful purpose will be served by making the petitioner face the trial when as per the record that is the only piece of evidence relied in the charge-sheet against the petitioner for the said crime. It is further submitted by the petitioner that the said witness had died in May, 1987 i.e. about 11 months prior to the filing of the charge-sheet on 28-4-1988. In this respect the petitioner has relied upon Clause (b) of sub-section (5) of section 173 of Criminal Procedure Code and contended that the statement of witness Panshikar could not have been part of charge-sheet filed under section 173 because the prosecution cannot examine his as witness as he had died even before filing of the charge-sheet. I find substance in the contention raised by the petitioner. Under sub-section (5) of section 173 the Police Officer is mandated to forward to the Magistrate along with report “the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses”. In other words, the Police Officer is not supposed to file the statement of persons recorded under section 161 unless the prosecution proposes to examine the said persons as witnesses. In other words, the Police Officer is not supposed to file the statement of persons recorded under section 161 unless the prosecution proposes to examine the said persons as witnesses. It is not necessary to decide whether the statement of such witness who had already died before the filing of the charge-sheet could be part of charge-sheet or not. But if the person, whose statement is recorded is no more, having died either before filing of the charge-sheet or subsequent to the filing of the charge-sheet, his statement will not be of any use to the prosecution as he will not be available for being examined as witness. There does not appear to be any provision under the Indian Evidence Act under which statement of such person is relevant or admissible in evidence nor such provision is brought to my notice on behalf of the State. 7. Mrs. Sabarwal, the learned A.P.P. appearing for the respondent-State today confirms on the basis of the instructions obtained by her from the Investigating Officer that the said witness Chintaman Vishwanath Panshikar has died and that there is no other piece of evidence on which prosecution could rely upon against the petitioner. 8. In view of the above I see no reason to make the petitioner face the trauma of trial when there is no evidence which the prosecution can lead against the petitioner. Reliance may be placed on the decision of the Supreme Court in the case of (Satish Mehra v. Delhi Administration another)1, 1996(9) S.C.C. 766 , in which Supreme Court, in para 15 of its judgment, has held that when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. It was further observed that if the Session Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceeding at the stage of section 227 of the Code itself. It was further observed that if the Session Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or ship the proceeding at the stage of section 227 of the Code itself. Reference may also be made to the decision of the Division Bench of this Court in the case of (Sailesh Pranbhydas Mehta v. Dilip Harilal Mehta another)2, 1980 Bom.C.R. 208, where the Court considered the material relied upon by the prosecution and held that there was no legal evidence before the leaned Magistrate to frame the charge in question and therefore quashed the order of framing of the charge by the Magistrate. 9. From the aforesaid factual position I am of the view that the criminal case pending against the petitioner is liable to be quashed as no useful purpose would be served in the absence of any legal evidence being available to the prosecution against the petitioner. 10. In the result the petition is allowed and the Rule is made absolute in terms of prayer (a) of the petition. Petition allowed. -----