Jharkhand High Court
Binay Krishna Dey vs The State Of Jharkhand And Anr on 17 November, 2014
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 954 of 2013
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Binay Krishna Dey ..... ... Petitioner
Versus
The State of Jharkhand & Anr. ..... ... Opposite Parties
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CORAM : HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Petitioner :Mr. A.K. Sahani, Advocate
For the State :A.P.P.
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07/ 17.11.2014This revision application has been preferred against the order dated 07.06.2013 passed by the learned Chief Judicial Magistrate, Seraikella- Kharsawan in connection with G.R. No. 638 of 2010 corresponding to RIT (Adityapur) P.S. Case No. 232 of 2010, whereby the petition filed by the petitioner under Section 239 of the Cr. P.C. for discharge has been rejected.
Learned counsel appearing for the petitioner has submitted that bare perusal of the F.I.R. would reveal that the petitioner was appointed as Mechanical Engineer in the company of the informant in September, 2008 and after working for around seven months, he left the job in April, 2009. It is alleged that Cheque No. 436770 was drawn on 12.07.2010 whereby an amount of Rs. 3,86,500/- was withdrawn from the account of the informant and the said amount was deposited in the name of a person, namely, Amar Kumar Sarkar; that this fact came to his knowledge on 03.08.2010 after he obtained the statement of his bank account whereafter he requested the bank to provide the copy of cheque and photocopy of the said cheque was provided to him; that it is alleged that the address given in the bank account of Amar Kumar Sarkar is the same as that given by the petitioner to the informant's company at the time of his appointment. It has further been submitted that during the period from April, 2009 to August, 2010, the informant must have issued several cheques and there was no reason as to why he did not take note that one of the cheques was missing; that there is no material to show that this petitioner had signed on the said cheque and the money withdrawn was remitted to his account; that the court below has referred to Paras 6,7 and 10 of the case diary but para- 6 contains the re- statement of the informant, Para-7 is the production-cum- seizure list of the alleged cheque deposited in ICICI Bank and in Para-10, there is no material available against the petitioner as the witnesses merely stated that B. Sarkar is the cashier of the informant's company; that the trial court has rejected the prayer for discharge only on presumption on the basis of statement of the informant whereas there is no material in the case diary to frame charge under Sections 408, 420, 467, 468 and 471/34 of the Indian Penal Code.
Learned counsel appearing for the State has submitted that as per recital in the F.I.R., it is stated that the bank account of Amar Kumar Sarkar contains same address as that of the petitioner; that the trial court has rightly rejected the prayer for discharge as there is material available to make out a prima facie case against the petitioner.
Heard and perused. It is not disputed that at the time of hearing on the point of charge, appreciation of evidence should not be as if there is dress rehearsal for a trial neither the probative value of the prosecution case or the defence plea has to be weighed and considered. At this stage the court has to see whether there is sufficient material to proceed in this case and a prima facie case is made out as per the materials on record and even in cases of strong suspicion, the charge can be framed. In the impugned order, there is only reference to Para Nos.6,7 and 10 of the case diary but there has been no discussion regarding material available in Para Nos. 6,7 and 10 neither any discussion as to whether the signature on the alleged cheque was verified by the hand writing expert or the Bank which is a subject matter of investigation as per the contention of the learned counsel for the petitioner. In the absence of any discussion of the materials collected by the police and non-recording of the same by the trial court, it is apparent that it is a non-speaking and cryptic order. Accordingly, the impugned order is, hereby, set aside.
The matter is remanded to the court below which shall pass a speaking order, after giving opportunity of hearing to the petitioner and discussing the material on record in accordance with law.
With the aforesaid observation and direction, this revision application is disposed of.
(Amitav K. Gupta, J.) Brajesh/