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2013 DIGILAW 1035 (JHR)

Pankaj Kumar Dangi v. State of Jharkhand

2013-09-06

H.C.MISHRA

body2013
Order Heard learned counsel for the petitioner and learned A.P.P, for the Prosecution as also learned counsel for the opposite party No. 2. 2. The petitioner is aggrieved by the order dated 1.12.2012 passed by Sri F. Kirmani, learned Judicial Magistrate, Bermo at Tenughat, in Gomia P.S. Case No. 90 of 2009 corresponding to G.R. No. 715 of 2009, whereby, the application filed by the petitioner for discharge under Section 239 of the Cr.P.C., has been rejected by the Court below. 3. The petitioner has been made accused in Gomia P.S. Case No. 90 of 2009 corresponding to G.R. No. 715 of 2009 for the offence under Sections 406 and 420 of the Indian Penal Code, which was instituted on the basis of the complaint case filed by the complainant opposite party No. 2, alleging that the complainant had purchased a tractor and hydraulic trailer from the accused, for which, the money was paid, but the hydraulic trailer was never supplied to the complainant. The complaint was sent for institution of the police case, on the basis of which, the case was instituted and investigation was taken up. After investigation, the police submitted charge-sheet against the petitioner under Sections 406 and 420 of the Indian Penal Code and cognizance was also taken against him. The petitioner, thereafter, filed his application for discharge under Section 239 of the Cr.P.C., taking the point that it was a case of agreement between the parties and the case was civil in nature and accordingly, the criminal case was not maintainable. The said application has been rejected by the Court below taking into consideration the decision of this Court, wherein it has been held that if in the given transaction, the case of both the natures, i.e., civil as also criminal, is made out, the criminal offence cannot be quashed. On the basis of the materials on record, the learned Court below found that there were materials against the petitioner for framing the charge under Sections 406 and 420 of the Indian Penal Code, and has accordingly, rejected the application of the petitioner for discharge. 4. On the basis of the materials on record, the learned Court below found that there were materials against the petitioner for framing the charge under Sections 406 and 420 of the Indian Penal Code, and has accordingly, rejected the application of the petitioner for discharge. 4. Learned counsel for the petitioner has submitted that the petitioner has been falsely implicated in this case and this is a case of purely civil in nature as this is a case arising out of business transaction and even if the allegation against the petitioner is accepted, the complainant has civil remedy. Learned counsel has accordingly, submitted that the impugned order cannot be sustained in the eyes of law. 5. Learned counsel for the complainant opposite party No. 2, on the other hand, has opposed the prayer and has brought on record the document to show that the petitioner had accepted the money for supply of the hydraulic trailer also, which was never supplied. It is further submitted that in the present case, though there may be civil liability, but the criminal liability is also made out, and as such, the application filed by the petitioner for discharge has been rightly rejected by the Court below. 6. After having heard the learned counsel for both the sides and upon going through the record, I find that the documents have been brought on record to show that the petitioner had received a sum of Rs. 90,000/- for supply of the hydraulic trailer to the complainant and in view of the allegation, that the same was never supplied, in my considered view, the criminal offence is also made out against the petitioner. 7. I do not find any illegality and/or irregularity in the impugned order rejecting the application filed by the petitioner for discharge. There is no merit in this application and the same is, accordingly, dismissed.