Judgment:
D.N. Prasad, J.
1. This application has been filed on behalf of the petitioner to quash the order, dated 2.12.1997 passed by the learned Sub-Divisional Judicial Magistrate, Giridih, in T.R. No. 2343/97 (G.R. No. 87/93), whereby and whereunder, he has rejected the application under Section 239 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for discharge.
2. The petitioner while posted as Branch Manager of the Bank of India at Raj Dhanwar Branch lodged First Infor-imation Report alleging therein that the accused Himanshu Shekhar Prasad removed drafts from the Bank and also had drawn a sum of Rs. 2,50,800/- by submitting fake draft. It is also alleged that an attempt was made to draw a sum of Rs. 1,80,500/- through forged drafts which could be detected at Delhi Office. It is also alleged that the drafts bearing No. 050015 to 050016, Leaf No. 050015 was converted into a fake draft for Rs.1,00,500/- and Leaf No. 050016 was converted into fake draft of Rs. 80,000 and the accused Himanshu Shekhar Prasad also confessed his guilt. Accordingly, the First Information Report was lodged. The police investigated into the case and submitted charge-sheet against the sole accused Himanshu Shekhar Prasad.
3. At this stage, it may be noted here that the petitioner had moved earlier before this Court in Cr. Misc. No. 5221 of 1996{R) for quashing of the order, dated 19.8.1996 impleading him as accused under Section 319 of the Code. The said Criminal Miscellaneous No. 5221 of 1996(R) was dismissed with an observation to agitate all those points at the time of framing of charge.
4. The learned counsel appearing on behalf of the petitioner at the very out-set submitted that the petitioner being the informant and as soon as the alleged forgery was detected, he registered the case against the accused Himanshu Shekhar Prasad, who was responsible for drawing a sum of Rs. 1,80,000/- by committing forgery and encashed by those Bank drafts. It is also argued that Himanshu Shekhar Prasad himself admitted his guilt before the officials of the Bank and he also submitted written admission, dated 15.1.1993 and he narrated the whole incident as to how he had committed forgery and had drawn the amount through the said Bank draft taken away by him. It is also submitted that seven witnesses have already been examined in the Court below including the informant/petitioner but none of them stated anything against the petitioner nor there is an iota of evidence against the petitioner for the alleged offence. Learned counsel also drew my attention to paragraph 15 of the case diary in which there is no evidence against the petitioner for the alleged offence. It is further argued that actually, a petition under Section 319 of the Code was filed to implead the brother of the accused. Himanshu Shekhar Prasad, as some of the amount being withdrawn said to be deposited with him, but theCourt below has illegally summoned the petitioner without any evidence and basis. Thus, there is no evidence against the petitioner to connect him for the alleged offence and, as such, the impugned order is fit to be set aside.
5. On the other hand, the learned Additional Public Prosecutor contended before me that the petitioner was admittedly the Branch Manager of the Bank at the relevant time and he was the custodian of the Bank draft and it was his duty to send a report month-wise to higher authority of the Bank which could not be done.
6. Perused the lower Court records. It is true that seven witnesses including the informant/petitioner have already been examined in the Court below. It is also clear that the First Information Report was lodged against the sole accused Himanshu Shekhar Prasad, who had admitted his guilt even by submitting his written admission (Ext. 1) and he had not stated anything whatsoever against the petitioner in his admission. The Court below rejected the petition under Section 239 of the Code by the impugned order on the ground that earlier the Cr. Misc. No. 5221 of 1996(R) was dismissed by this Court. It is also apparent that though the Court below stated about the evidence of PWs 1 to 7 but the evidence of those witnesses have not been discussed in detail as to what evidence has actually been collected against the petitioner.
7. Section 239 of the Code of Criminal Procedure says as follows :--
'239. When accused shall be discharged.--If, upon considering the police report and the document sent with it under Section 173 and making such examination, if any, of the accused as Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.'
8. Since no prima facie evidence has been discussed or oven referred in theorder impugned while rejecting the prayer of discharge, the order impugned is liable to be quashed.
9. In the above facts and circumstances, without going into the merit of the case at this stage, the order, dated 2.12.1997 is hereby quashed and the matter is remitted to the learned Magistrate, who will pass a fresh order with reference to the materials available on record, and in accordance with law after hearing both the parties.
10. This application is accordingly allowed to the extent indicated above.
11. Application allowed.