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2010 DIGILAW 615 (PAT)

Dinesh Prasad Singh v. State Of Bihar

2010-04-05

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar and j. JJ. 1. Two petitioners, while invoking inherent jurisdiction of this Court under Sec.482 of the Code of Criminal Procedure (hereinafter referred to as Cr. P. C.), have prayed for quashing of the order dated 19.8.1998 passed by Shri M. S. Ali, Judicial Magistrate, Ist Class, Beugsarai in G. R. Case No.2883 of 1995/t. R. No.568 of 1998 arising out of Begusarai Muffasil P. S. Case No.289 of 1995. By the order dated 19.8.1998, the learned Magistrate has rejected the petition for discharge filed on behalf of the petitioners. 2. Mr. Ajay Kumar Thakur, learned counsel appearing on behalf of the petitioners has challenged the order of rejecting the discharge petition mainly on the ground that before removing the articles from the premises in question it was intimated by the partnership firm to the Branch Manager, Bihar State Financial Corporation, Begusarai. Virtually, he has confined his submission only on the basis of Annexure-5 to the petition. He submits that since the Corporation was already intimated regarding removal of the goods, it cannot be said that offence either under Sec.420 or Sec.406 of the Indian Penal Code was committed by these petitioners. 3. Mr. Mukesh Kumar Thakur, learned counsel appearing on behalf of opposite party no.2- Corporation has vehemently opposed the prayer of the petitioners. Mr. M. K. Khare, A. P. P. , appearing on behalf of the State supported the stand of the learned counsel for opposite party no.2. He has also referred to several paragraphs of the counter affidavit, which was filed by the Corporation. While referring to paragraph-6 of the counter affidavit, he has submitted that in indenture of agreement dated 1.9.1986, Clause-11, it was specifically stipulated that the concern will not change its constitution without prior permission of the Corporation. He submits that before taking the plea of executing the deed of retirement of the partner from the said Partnership Firm neither Corporation was informed nor prior permission was obtained. He also referred paragraph-10 of the counter affidavit of the Corporation and submits that agreement specifically makes it clear that assets created at the site shall not be removed without the consent of the Corporation and there is specific agreement for mortgaging the site as well as assets created at the site. On these grounds Mr. M. K. Thakur, learned counsel for opposite party no.2, opposed the prayer of the petitioners. On these grounds Mr. M. K. Thakur, learned counsel for opposite party no.2, opposed the prayer of the petitioners. He submits that the order rejecting the discharge petition is completely in accordance with law. 4. Mr. M. K. Khare, A. P. P. , learned counsel appearing for the State, supports the stands of learned counsel for opposite party no.2. 5. I have also examined the materials available on the record as well as the order rejecting the discharge petition. 6. It appears from perusal of the impugned order that at the time of pressing the discharge petition only ground was taken by the petitioners that they had already retired from the concerned partnership firm and, as such, they cannot be held liable for the offences committed by the partnership firm of which they were no longer a partner. So far as stand taken by Mr. A. K. Thkaur, learned counsel for the petitioners regarding intimation given to the Corporation by annexure-5 is concerned, I am of the view that such document can be referred or relied upon at the stage of defence. Such defence may not be looked into at the initial stage of trial. This court is not required to examine such document which has been annexed with the petition filed under section 482 of the Cr. P. C. Unless a document is got proved, it would be difficult for this court to examine such document. In any event the plea which has been taken by the petitioners cannot be looked into at this stage. There is specific case of the prosecution that the petitioners being partner of a particular firm entered into an agreement with the Corporation. They had obtained loan from the Corporation. The properties in question were mortgaged and being martgagee contrary to the terms of the agreement they were not required to remove such articles from the site in question. Prima facie, on perusal of the first information report and the materials available on record, I am of the view that while rejecting the discharge petition, the learned Magistrate has committed no error. 7. Accordingly, I do not find any merit in the present petition and the petition stands rejected. 8. Prima facie, on perusal of the first information report and the materials available on record, I am of the view that while rejecting the discharge petition, the learned Magistrate has committed no error. 7. Accordingly, I do not find any merit in the present petition and the petition stands rejected. 8. By order dated 24.3.1999, while admitting this petition, this court had directed that till the disposal of this application, further proceedings in Begusarai Mufassil P. S. Case No.289 of 1995 as regards the petitioners shall remain stayed and the stay is still continuing. In view of rejection of the present petition, the order of stay stands automatically vacated. 9. Let a copy of this order be communicated to the court below forthwith.