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Judgment
This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the order dated 17.08.2012 passed by the Judicial
Magistrate, 1st class, Banka, in Complaint Case No.C-940 of 2012 by which the learned Magistrate after holding enquiry has found prima facie case
against the petitioners for the offence under Section(s) 420 Indian Penal Code.
Counsel for the Petitioner has submitted that date of occurrence as mentioned in the Complaint Petition is 16.10.2009 and in Solemn Affirmation date
of occurrence has been mentioned as ‘16.09.2010’. Therefore, impugned order of cognizance is bad in law.
Counsel for the Opposite Party No.2 has appeared and submitted that in the Complaint Petition date of occurrence has been mentioned on different
dates between 16.10.2009 to 11.05.2012 on which payment has been made by the Complainant to the Petitioner.
He has further submitted that date ‘16.09.2010’ as mentioned in Solemn Affirmation of the Complainant by the Presiding Officer appears to be
slip of pen.
A report was called for from the Court below about the present stage of the case along with Xerox copy of the entire ordersheet, which has been
received. From the report of the Court below, it appears that process under Section 83 Cr. P. C. has already been issued against this petitioner by
order dated 10.04.2014.
From the Xerox copy of the entire order-sheet, it appears that Petitioner has not even appeared in the Court below after passing of the impugned
order. In the Complaint Petition, the Complainant has mentioned about different dates between 16.10.2009 to 11.05.2012 on which money was paid to
the Complainant by the Petitioner. Receipts were also given by the petitioner in token of receipt of the amount. Xerox copies of those receipts are
enclosed with the Complaint Petition.
The learned Magistrate is only required to see prima facie case at the time of holding enquiry under Section 202 Cr. P. C. on the basis of allegation
made in the complaint, Solemn Affirmation of the Complainant as well as statement of other witnesses recorded during enquiry.
From perusal of the entire Solemn Affirmation of the Complainant, it appears that he has supported the case as mentioned in the Complaint Petition.
There is mention in the Solemn Affirmation that this petitioner came to the house of the petitioner on 16.09.2010 and persuaded the Complainant for
taking house loan of rupees five lac, whereas, in the Complaint Petition, the Complainant has mentioned that this petitioner persuaded the Complainant
on 16.10.2009 for sanction of rupees five lac as housing loan. The Complainant has alleged in the Complaint Petition that on such persuasion he made
payment of rupees eighty two thousand eight hundred to the petitioner on different dates. This fact has been supported by the Complainant in his
Solemn Affirmation recorded during enquiry.
The Court below has mentioned in the impugned order that after looking into the record and the allegation made in the complaint and also the Solemn
Affirmation of the Complainant prima facie case against the petitioner for the offence under Section(s) 420 Indian Penal Code is made out.
Therefore, this Court does not find any illegality in the impugned order passed by the Court below.
Accordingly, this Criminal Miscellaneous application is dismissed.
The Court below is directed to proceed with the trial in accordance with law.
Interim order of stay dated 24.11.2017 is hereby vacated.