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2013 DIGILAW 102 (JHR)

Joginder Chand Kapur v. State of Jharkhand

2013-01-17

H.C.MISHRA

body2013
ORDER I.A. No. 1684 oJ2012 By the Court.-This interlocutory application has been filed for deleting the name of petitioner No.1. Joginder Chand Kapur. who died on 24.10.12 in, a Hospital in the State of Karnataka and to this effect the death certificate of petitioner No. 1 has also been brought on record. Accordingly. the name of petitioner No.1, Joginder Chand Kapur is deleted from the cause title of this case. This interlocutory application is accordingly, allowed. Cr. Revision No. 641 of 2007 Heard the learned counsel for the petitioners as well as the learned counsel appearing for the State. 2. No one appears on behalf of the complainant-Opp. Party No. 2 in spite of repeated calls. It appears that on• earlier occasion also no one had appeared on behalf of the complainant and the case was adjourned in order to give a chance to the counsel of the complainant Opp. Party No.2. In spite of repeated calls today also, no one has appeared on behalf of the complainant Opp. Party No.2. 3. The petitioner, Sunil Kapur is aggrieved by the order dated 5.6.07 passed by Sri A.K. Singh, learned Judicial Magistrate 1st Class. Koderma, in complaint case No. 382 of 2004, whereby the petition filed by the petitioner for discharge. under Section 245, Cr PC, has been rejected by the Court below. 4. The petitioner has been made accused along with one Amit Jaiswal and the deceased Joginder Chand Kapur in complaint case No. 382 of 2004, filed by the complaint in the Court of the Chief Judicial Magistrate, Koderma. In the complaint petition it is stated that the complainant is a partner of M/s Ramchand Jagdish Chand, having its office near Gayatri Mandir, Byepass Road, Jhumri Telaiya, Koderma, and on the date of occurrence, accused No. 1 Amit Jaiswal along with five unknown culprits entered into the building and office of the firm and they took the photographs of the building and office of the complainant and removed some file containing valuable documents. Alleging criminal conspiracy against the petitioner in the said occurrence, this complaint petition has been filed for the alleged offences under Sections 448, 380 and 120-B, IPC. It is specifically alleged that the accused Amit Jaiswal came and committed the theft of the file, which contained the valuable documents. Alleging criminal conspiracy against the petitioner in the said occurrence, this complaint petition has been filed for the alleged offences under Sections 448, 380 and 120-B, IPC. It is specifically alleged that the accused Amit Jaiswal came and committed the theft of the file, which contained the valuable documents. So far as this petitioner is concerned, it is only alleged that there was connivance and conspiracy of this petitioner in the alleged crime. It appears that on the basis of the statement of the complainant recorded on the solemn affirmation, the primafacie case was found against the accused persons and the process was issued. Subsequently, three witnesses were examined by the Court below before charge, and thereafter the petitioner filed application for discharge, which was rejected by the Court below. 5. The Court below, has not mentioned in the impugned order any material available against the petitioner in the evidence before charge and has only stated that it is settled principle of law that in the stage of charge, the meticulous examination of evidence is not required, and rejected the application filed by the accused persons. 6. It is thus, clear, that the impugned order is a non-speaking order. However, I have also gone through the evidence before charge in the Court below, which has been brought on record. Three witnesses were examined before charge. CW -1 is the complainant. Dilip Kapur himself. who was stated that he was not present on the date of occurrence at Koderma. but he was informed that the accused. Amit Jaiswal along with five hooligans entered into the property of the firm and they took the photographs and they also took away some important files. which contained valuable information. It is stated that the surviving petitioner. Sunil Kapur and other accused Jagdish Chand Kapur had sent the other accused under the criminal conspiracy. When this witness was put to cross-examined before charge. he has admitted that in the said firm the complainant's share is only 7%. whereas the share of Sunil Kapur is 31.33%. He has also stated that the property belonged to the partnership firm in which the complainant and the accused persons are the partners. CW-2 Pankaj has also supported the case of the complainant and he has also admitted in the cross-examination that the complainant and the accused persons are the partners in the same firm. He has also stated that the property belonged to the partnership firm in which the complainant and the accused persons are the partners. CW-2 Pankaj has also supported the case of the complainant and he has also admitted in the cross-examination that the complainant and the accused persons are the partners in the same firm. CW-3 Devendra Jha has also supported the case of the complainant. 7. Thus from the evidence adduced by the complainant before the charge. it is apparent that the complainant and the accused persons are the partners of the same firm and this fact had been completely suppressed in the complaint petition and there is no whisper in the complaint petition about these facts. Similarity the fact that the complainant had only 7% share in the said firm. whereas. the surviving petitioner had 31.33% share in the said firm has also been completely suppressed in the complaint petition. From this evidence, it is thus clear that the surviving petitioner has more right in the firm than that of the complainant himself. as he has more share than that of the complainant in the firm. 8. In view of these material facts which were completely suppressed in the complaint petition. I am of the considered view that even if the allegation against the petitioner that with his connivance the other accused persons entered into the building of the firm and. took away some file from the office and also took photographs of the premises; is accepted in its totality, the same cannot make out any offence against the petitioner as admittedly, he is having more share in the firm than that of the complainant. I am also of the considered view that this is a case of dispute between the partners of the firm and the petitioner has been implicated in this case' only in order to harass him by maliciously suppressing the materials facts by the complainant and as such, the criminal case against the petitioners cannot be allowed to be continued. 9. In view of the foregoing discussions, the impugned order dated. 5.6.2007 passed by Sri A.K. Singh learned Judicial Magistrate. 1st Class, Koderma, in complaint case No. 382 of 2004, is hereby, set aside. Consequently, the petitioner stands discharged. This application is accordingly, allowed. Let the Lower Court Records be' sent back forthwith. Application allowed.