Ved Ram Sharma vs State Of U.P. And Another
2011 Latest Caselaw 2122 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Reserved 
 

 
Criminal Misc. Application No. 16325  of 2011
 

 

 
Ved Ram Sharma                               ....................     ...........Applicant
 

 
Versus 
 

 
State of U.P. and  another ....                                               Opp.Parties 
 

 
*****
 

 
Hon'ble Ravindra Singh, J.

This application has been filed by the applicant Ved Ram Sharma with a prayer to quash the proceedings of Case No. 3101 of 2010 ( CBI Vs. Ved Ram Sharma) under section 420 I.P.C. arising out of the Charge-Sheet dated 31.08.2010 submitted in F.I.R.No. RC-1202009A0006 dated 07.09.2009, Police Station CBI, ACB, Ghaziabad, pending in the court of learned Special Judicial Magistrate ( CBI), Ghaziabad and to quash the order dated 11.4.2011 passed by learned Special Judicial Magistrate, Ghaziabad whereby the discharge application under section 239 Cr.P.C. filed by the applicant has been dismissed.

The facts, in brief, of this case are that the FIR of this case has been lodged by C.B.I. on 7.9.2009 at Police Station C.B.I., ACB, Ghaziabad under section 120-B read with section 417 I.P.C.and section 13(2) read with section 13(1)(d) of Prevention of Corruption Act, 1988. The FIR has been lodged against the applicant and Dr. Prabhat Kumar, the applicant is Chairman of Akash Education Society, 405 Ocean Complex, Sector 18, Noida, district Gautam Budh Nagar and Dr. Prabhat Kumar is Director of the above mentioned Akash Education Society, alleging therein that a reliable information has been received to the effect that the approval of All Indian Council of Technical Education ( AICTE), Chanderlok Building, Janpath, New Delhi has been granted to the institutes, who do not fulfill the norms as laid down by AICTE, it has also revealed that the approval of AICTE is granted to the institutes to fulfil the norms of AICTE and without the approval of AICTE the Engineering College can not function. In order to verify whether the concerned institute fulfils the said norms, a Committee appointed by AICTE conducts physical inspection of the Institute. Thereafter on the basis of the recommendations made by AICTE Committee, the approval is granted to the institute to run Engineering Courses, it further revealed that the unknown officials of AICTE in conspiracy with the applicant Ved Ram Sharma, Chairman and Dr. Prabhat Kumar, Director had recommended for approval of R.V.Northland Institute of Technology, G.T.Road, Chithera, Dadri, District Gautam Budh Nagar being run by Akash Education Society by misrepresentation of facts in their report dated 12.6.2009 regarding physical verification conducted by them to ascertain whether the said institute fulfils the norms of AICTE in respect of requirement of land and other norms for running of the engineering college.

It has also been revealed that the Committee of the AICTE has mentioned in its report that the Institution is having 15.1503 Acres of land and as it is located in rural area, it requires 10 acres of land as per norms of AICTE. The information has also revealed that R.V.Northland Institute of Technology is only having 8.8203 acres of land, out of the said land, the said institute is having clear title in only 3.7365 acre of land, the remaining 5.0838 acres of land is under dispute as the same has been ordered to be acquired by U.P.S.I.D.C. by competent authority in January 2008, whereas the inspection of the land records by AICTE Committee was conducted on 12.6.2009.

Thus by the aforesaid acts, the unknown officials of AICTE in conspiracy with Ved Ram Sharma, Chairman and Dr. Prabhat Kumar, Director had cheated AICTE by facilitating the approval of R.V.Northland Institute of Technology, G.T.Raod, Chithera, Dadri, district Gautam Budh Nagar by AICTE on 24.6.2009 for running the engineering courses. The above facts prima facie disclosing the commission of the offence punishable under section 120-B read with 417 I.P.C.and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 against the applicant and Dr. Prabhat Kumar.

After making the investigation, the I.O. submitted the charge sheet No., 07 (03) dated 31.8.2010 under section 420 I.P.C. against the applicant, during investigation it has been revealed that a proposal /application was submitted by Shri Ved Ram Sharma, Chairman, Akash Education Society vide his letter No. 198/AES/RVNOIT/07 dated 28/12/2007 along with the enclosures for opening of new technical institution by the name of RV Northland Institute of Technology, Ghaziabad at the Regional Office, Northern Region Office, AICTE, Kanpur. Subsequently as per the handbook of approval process, which is a legal document as per notification No. F37-3/Legal/2006 of AICTE dated 14.09.2006, the proposal was scrutinized by the Regional Committee. Further on perusal of the record submitted by Shri Ved Ram Sharma, Chairman, Akash Education Society to the Regional Officer, AICTE, Kanpur vide letter No.AES/AICTE/ENGG/2009/350 dated 28.1.2009, certain deficiencies were found in the application and documents submitted by Akash Education Society which were posted in the website of AICTE, Shri Ved Ram Sharma vide his above mentioned letter had submitted the record for rectification of the same and had also submitted that their proposal may be considered for establishment of the institution for the sessions 2009-10.

Investigation further discloses that the said application of Shri Ved Ram Sharma was forwarded to the AICTE HQ.,New Delhi for further action Subsequently on the basis of application/proposal received from Regional Office, Hearing letter was issued to the Chairman /Secretary Akash Education Society, N. Delhi vide F No. 06/05/UP ENGG/2009/46 dated 09.03.2009 by Shri Dev Vrat Singh, Advisor ( E & T) AICTE Head Office, N. Delhi. As per the said letter the Chairman/ Secretary of Akash Education Society were requested to present their proposal before the hearing committee on 19/03/2009 for establishment of RV Northland Institute of Technology Ghaziabad. Thereafter on 19/03/2009 Shri Ved Ram Sharma, Chairman of Akash Education Society appeared before the hearing committee. Also at the time of hearing Shri S.P. Bhati, General Secretary, Akash Education Society had submitted a declaration giving the details of land area, Details of fund along with the date of Land user certificate and date of approval of Building plan.

Subsequently on the basis of the recommendation of the Hearing committee & approval of Member Secretary a Letter of Intent was issued to The Chairman/ President Akash Education Society, N. Delhi vide F No. 06/05/UP/ENGG/2009/46 dated 20.3.2009 by Shri Dev Vrat Singh, Advisor ( E & T ) AICTE N Delhi. Further as per the Letter of Intent the Akash Universal Education Society was required to submit/furnish certain documents with the concerned Regional Office, AICTE for further processing of their proposal for grant of approval. The details of the documents were as under-

1.A registered undertaking on non - judicial stamp paper of not less than Rs 100/- stating that the institute shall abide by all the regulation guidelines norms and standard of the council as applicable from time to time.

2.A joint Fixed Deposit of Rs. 35 Lakh is to be created for a period of 8 yrs. In the name of the President/Chairman of the Applicant Society/Trust and the concerned Regional Office of AICTE.

3.A non-refundable visiting fees of Rs. 80,000/- in the form of Demand Draft drawn in favour of the Member Secretary, AICTE

Further as per the Letter of Intent the applicant society/trust was required to make an application within two months from the date of issue of Letter of Intent regarding the Expert Committee visit for issue of Letter of Approval for the Academic year 2009-2010. Also as per the Letter of Intent it was informed to Akash Education Society that an expert committee will visit the institute within 15 days from the date of intimation of readiness from the applicant society/trust.

Investigation has also revealed that with reference to AICTE letter of intent dated 19/03/2009 regarding grant of approval , Shri Ved Ram Sharma, Chairman, Akash Education Society had vide letter No. 406/AES/B.Tech/2009 dated 14/05/2009 conveyed his readiness for the visit of the Expert Committee for issuance of Letter of Approval for the academic session 2009 -2010 to the Regional Officer, AICTE Kanpur, Also along with his letter Shri V.R Sharma had also submitted details of the Joint Fixed Deposit for Rs. 35 Lakh. Processing Fee of Rs. 80,000/- and Registered Affidavit on Rs. 100/- stamp paper. Subsequently the said letter of Shri Ved Ram Sharma was forwarded to the Advisor ( E & T), AICTE N. Delhi by DS Bagri, Regional Officer, AICTE Kanpur vide letter No.F-11-117 ( E & T)/2009-NRO/AICTE-335 dated 19.05.2009 for necessary action.

The Expert Committee, which visited the institute, comprised of Prof. Abid Haleem, Department of Mechanical Engg. Jamia Millia Islamia University, Delhi, Prof, Kuldeep Singh, Professor of Computer Science & Engineering IIT Roorkee and Prof. R.K.Trivedi, Director Dr. Ambedkar Institute of Technology for Handicapped, Kanpur Shri GS Negi, Under Secretary, AICTE New Delhi was nominated as Convenor of the said Committee . In its Report dated 12/06/2009, the Committee certified that it had physically verified i) The registration document of the Society/Truest ii) The documents related to land and the land area iii) Built up area, iv) Library, laboratory facilities and computers & v) Director/Principal and Faculty and submitted their report that the total land area and built up area of the institute was as per norms of AICTE.

Investigation has further revealed that on 10/09/2009 a CBI team along with Shri Sachin Sahu, Jr.Engineer, CPWD ( Civil), CGO-1 Complex Hapur Road, Ghaziabad and Shri Ravi Purna, Inspector, Central Excise Ghaziabad visited the campus of Bhagwant Institute of Technology, VIII Parsoon Hapur, Ghaziabad to verify whether the said institute fulfils the norms of AICTE on the basis of which the said institute has been accorded approval, for running of Engineering Courses by AICTE. The area of the institute along with the area under construction and the built up area was video recorded. As per the memorandum of inspection dated 10/07/2009 prepared by CBI team the instructional area was 2808 Sqr.Mtr. against the required area of 2770 Sqr. Mtr as per AICTE norms.

Investigation has further revealed that Shri Ved Ram Sharma in his capacity as President Akash Educational Society had on 26/05/2009 also submitted before the AICTE an undertaking and vide para 7 of the said undertaking it has been claimed that the land building is not mortgaged or under any lien or charge or any other kind of encumbrances. Further he had also submitted vide the said undertaking that if fulfilled/complied or if found to be false, it will disentitle the institution from grant of approval for conduct of courses applied for. He had deliberately withheld the information from AICTE

that the land on which the RV Northland Institute of Technology is built has been acquired by the State Government.

Investigation revealed that Shri Ved Ram Sharma, President, Akash Education Society has deliberately hidden the fact regarding the dispute of land on which RV Northland Institute of Technology was to be established from AICTE Further Shri Ved Ram Sharma, President Akash Education Society had submitted undertaking before AICTE on 26/05/2009 claiming that the land was free from all disputes.

Investigation further revealed that the U.P.Govt. vide notification dated 11.07.07 had ordered for acquisition of khasra no 1040, 1041, 1044, 1045, 1049 and 1051 having land measuring 10.8962 acres. This order of acquisition was issued much before the submission of application for grant of approval by Shri Ved Ram Sharma on 28.12.07 who withheld this important Government Notification from AICTE and falsely claimed that the land measuring 15.15 Acres was free from all encumbrances. Further, the matter ws taken to the High Court by Shri Ved Ram Sharma challenging the said Notification. The High Court vide its order dated 1.4.08 directed the parties to maintain status quo as on date. The dispute is still unresolved and sub- judice. These facts about the dispute of ownership of land measuring 10.8962 acres was not presented before any Committee/ Member of AICTE by Shri Ved Ram Sharma, who on the other hand gave an undertaking to the AICTE on 26.5.09 that the land in his possession is " not mortgage or under any lien or charge or any other kind of encumbrances" Further it is revealed that at the time of inspection, the owner Shri Ved Ram Sharma had not reported the facts about the acquisition of land by UPSIDC to the expert committee members and if this fact was brought to their notice at that time, they would not have recommended for the approval of the Institute.

It is further submitted that during the course of investigation, no evidence has surfaced to substantiate the allegations of criminal conspiracy against the official of AICTE and Expert Committee members and Shri Prabaht Kumar, Director RV Northland Institute of Technology. Hence Shri Prabhat Kumar, Director RV Northland Institute of Technology, Dadri, Distt.Gautam Budh Nagar ( UP) may be discharged from the case.

The above acts constitute the commission of offence punishable under section 420 IPC against Shri Ved Ram Sharma, President, Akash Education Society.

On the charge sheet submitted by the I.O., the learned Special Judicial Magistrate, C.B.I. has taken the cognizance and summoned the applicant to face the trial for the offence punishable under section 420 I.P.C. vide order dated 7.9.2010.

Heard Sri Keshri Nath Tripathi, learned Senior Advocate, assisted by Sri Uma Nath Pandey, learned counsel for the applicant , Sri Anurag Khanna, learned counsel, appearing on behalf of C.B.I., O.P.No. 2 .

It is contended by learned counsel for the applicant that the applicant is Chairman of Akash Education Society, which is duly registered under the provisions of Societies Registration Act, 1860 ( Act No. 21) in the office of Registrar of Societies, Uttar Pradesh, bearing Registration No. 148 of 2002 -2003. The Society has been established for the purposes mentioned in its memorandum. The Society has been renewed time to time and the last renewal has been made on 29.5.2007 for next five years. The Society has established an Educational Institution, known as R.V.Northland Institute of Technology, situated at G.T.Raod, Village Chitehra, District Gautam Budh Nagar. The Society has submitted the application form by completing all necessary formalities before All India Council for Technical Education ( AICTE) for granting the approval. On 8.1.2008, the AICTE Kanpur vide its letter communicated some shortfall in the proposal of the Society, the applicant furnished the required information to the AICTE Kanpur with the request to consider his proposal for the academic session 2009-2010. On 9.3.2009, the Advisor ( E & T), AICTE, Head Office, New Delhi issued a letter requiring the society to submit its proposal for establishment of the institution before the Hearing Committee on 9.3.2009, in response to which the applicant being Chairman and General Secretary appeared before the Hearing Committee and clarified all the queries raised by AICTE Kanpur. On 20.3.2009, the Advisor ( E & T ) issued a Letter of Intent ( LOI) in favour of the Society by which it was directed to furnish certain documents and also to make application within 2 months from the date of issuance of said letter of intent for inspection by Expert Committee for the purposes of issuance of letter of approval to the academic session dated 2009- 2010. It was further informed that an expert committee shall visit the institute within 15 days from the date of request letter. On 12.6.2009 the Expert Committee visited the institute who submitted its report certifying the registration document of the society, the document relating to the land and its area, build up area, library, laboratory facilities & computer, report has been submitted that the institution was having the norms of AICTE, after receiving the inspection committee report, AICTE granted approval order on 24.6.2009.

It is surprising that on information received, the C.B.I. has lodged the FIR on 7.9.2009 in which certain allegations have been made, the allegations made in the FIR are not correct. The State Govt.issued notification under section 4(1) and 17(4) of the Land Acquisition Act, 1894 dated 19.1.2007,it was published in the news paper on 11.5.2007. On 11.7.2007, the State Government issued declaration under section 6 and 17(4) of the Land Acquisition Act in respect of Plot Nos. 1040, 1041, 1042, 1044, 1045, 1049 and 1051 situtated in village Chithera, acquiring it for the purposes of planned industrial development in District Gautam Budh Nagar. The validity of the aforesaid notification has been challenged by the applicant Society before this Court by filing Writ Petition No. 17029 of 2008 in which interim order dated 1.4.2008 in favour of the Society has been passed, which is still continuing. The matter is sub-judice before the High Court for final adjudication.

A bare perusal of the FIR as well as charge sheet shows that the main allegation against the applicant is that deliberately he did not disclose the fact of acquisition of the land to the Expert Committee of AICTE, the correct fact is that such information is neither required to be disclosed under the guidelines of AICTE nor it was demanded at any point of time by the AICTE. During investigation, the Assistant Director AICTE Sri Sanjeev Batra was also interrogated who had provided the procedure required for grant of approval, the statements of members of the Expert Committee namely, Rakesh Kumar Trivedi, Sri Govind Singh Negi, Sri R.K.Srivastava, Sri B.P.Singh and Sri Harish Kumar Gupta have been recorded by the I.O. under section 161 Cr.P.C. The team of the C.B.I.also visited the campus of the Institution on 13.8.2010 and has made physical verification also. But without doing the proper and fair investigation, the charge sheet has been submitted under section 420 I.P.C.only against the applicant. The other co-accused person has not been charge sheeted. The offences under the Prevention of Corruption Act have not been substantiated in the investigation. The learned Special Judicial Magistrate C.B.I. Ghaziabad erroneously took the cognizance of the offence punishable under section 420 I.P.C.and issued the summon against the applicant on 7.9.2010.

The applicant being aggrieved by the order 7.9.2010, preferred Criminal Revision No. 4231 of 2010 before this Court, the same has been finally disposed on 5.10.2010. In compliance of the aforesaid order dated 5.10..2010, the applicant appeared before the court concerned and has been released on bail on 14.12.2010, the applicant moved the discharge application under section 239 Cr.P.C., the same has been rejected on 11.4.2011. The allegations made against the applicant are prima facie disclosing the commission of the offence punishable under section 420 I.P.C. The learned Magistrate concerned has committed error in taking the cognizance for the offence punishable under section 420 I.P.C., the learned Magistrate concerned has committed further error in dismissing the discharge application filed by the applicant. The prosecution of the applicant is illegal, therefore, the proceedings of the above mentioned case may be quashed.

In reply of the above contention, it is submitted by Sri Anurag Khanna, learned counsel, appearing on behalf of C.B.I. that the allegations made against the applicant are prima facie disclosing the commission of the offence under section 420 I.P.C., the I.O.has collected the material during investigation which shows that the constitution of the offence is punishable under section 420 I.P.C., after perusing the same, the learned Magistrate concerned has taken cognizance for the offence punishable under section 420 I.P.C. vide order dated 7.9.2010, the order dated 7.9.2010 has been challenged by the applicant by way of filing criminal revision No. 4231 of 2010 but the prayer to quash the order dated 7.9.2010 has been refused, the order dated 7.9.2010 has been affirmed by another bench of this Court vide order dated 5.10.2010 , on the same material on which the cognizance taken under section 420 I.P.C. by the learned Magistrate concerned has been approved by another bench of this Court, the applicant filed the discharge application before the court concerned. The learned Special Judicial Magistrate C.B.I. has considered the material collected by the I.O.and came to the conclusion that prima facie offence under section 420 I.P.C.is made out and has dismissed the discharge application vide order dated 11.4.2011. The learned Special Judicial Magistrate, C.B.I. has not committed any error in taking the cognizance and in dismissing the discharge application under section 239 Cr.P.C. The another bench of this Court has perused and considered all the materials on which the cognizance has been taken and has affirmed the order of cognizance on 5.10.2010 by dismissing the revision filed by the applicant by holding that the impugned order dated 7.9.2010 was having no illegality, impropriety or jurisdictional error. The impugned order was perfectly correct. The reconsideration of the same material by way of filing the present application only by changing nomenclature. The present application is devoid of the merit, the same may be dismissed.

After considering the submission made by learned counsel for the applicant, learned counsel appearing on behalf of C.B.I.and from the perusal of the record it appears that in the present case, the C.B.I.has lodged the FIR against the applicant and Dr. Prabhat Kumar under section 120-B read with 417 I.P.C.and section 13(2) read with 13(1) (d) of Prevention of Corruption Act, but after investigation the I.O.has submitted the charge sheet only against the applicant under section 420 I.P.C., no other person has been charge sheeted and the charge sheet has not been submitted under section 13(2) read with section 13(1) (d) of Prevention of Corruption Act, 1988, the leaned Special Judicial Magistrate, C.B.I.Ghaziabad has taken the cognizance for the offence punishable under section 420 I.P.C.and summoned the applicant to face the trial vide order dated 7.9.2010. The order dated 7.9.2010 has been passed by learned Special Judicial Magistrate, C.B.I.after perusing the material collected by the I.O. The order dated 7.9.2010 has been challenged by the applicant by way of filing criminal revision No. 4231 of 2010, the same has been dismissed by another bench of this Court on 5.10.2010 by passing the following order :

" Heard Mr. G.S. Chaturvedi, the learned senior counsel assisted by Mr. Uma Nath Pandey for the revisionist and Mr. Anurag Khanna for the respondent no.2 and the learned AGA for the respondent no.1 and perused the record.

This is a revision against the order dated 7.9.2010 passed by the Special Judicial Magistrate (CBI) Ghaziabad in criminal case no. 3101 of 2010, CBI vs. Ved Ram Sharma, whereby the learned Magistrate took cognizance of the offence under section 420 IPC on the charge sheet filed by the CBI and issued a process against the revisionist.

It appears that the revisionist is the Chairman of Akash Educational Society (in short 'the society') registered under the Societies Registration Act, 1860. It is also alleged that the society intended to establish R.V. Northland Institute of Technology, Gautam Budh Nagar and applied for approval of the All India Council for Technical Education (in short 'the AICTE'). It is also alleged that the AICTE required the society to furnish an undertaking that the land and building owned by the society was not mortgaged nor they were under any lien or charge or any other kind of encumbrance and shall also not be subjected to such charge in future. Accordingly the revisionist furnished a written undertaking to that effect, which was subsequently found false. According to the charge sheet, the society had furnished the information that

it was the owner of 8.8203 acre land, but on inquiry the society was found owner of only 3.7368 acre land and remaining 5.0838 acre land had been acquired by the State Government. The revisionist, knowing about the acquisition of the said land, furnished the aforesaid undertaking with the intent to defraud the AICTE and obtained the desired permission.

The learned Magistrate while taking cognizance of the offence, perused the entire material on record and arrived at the conclusion that a prima facie case under section 420 IPC was made out against the revisionist and accordingly took cognizance of the said offence.

 
	Mr. G.S. Chaturvedi submitted that the property of the society was neither  mortgaged nor was subjected to any lien or charge or other kind of encumbrance, therefore, the undertaking was correct. It was next submitted
 
that the AICTE had merely required the revisionist to indicate as to whether land and building of the society had been mortgaged or were subjected to any
 
other lien, charge or encumbrance or not. Therefore, the undertaking was furnished according to the wishes of the AICTE. Mr. Chaturvedi further submitted that the revisionist was nowhere required to indicate as to whether the land had been acquired or not, therefore, there was no question of any concealment in this regard. It was also submitted that the society has already
 
filed writ petition no.17029/2008 in this Court against the acquisition proceedings and this Court vide the order dated 1.4.2008, directed the parties
 
to maintain status quo with regard to the land. In this view of the matter the acquisition proceeding has not become final therefore, the title of the society is intact. As such there was no deliberate concealment on the part of the       revisionist. 
 
	Mr. Anurag Khanna, on the other hand, sub mitted that the interim order regarding the status quo itself indicates that neither the society nor the
 
revisionist could use the land for the institute and whatever position of the land was on spot, it was to be kept as it is without any change. Therefore, the
 

interim order is of no help to the revisionist. It was further submitted that when the society was required to inform regarding mortgage, charge, lien or any other encumbrance in respect of the land and building of the society, it was incumbent upon the revisionist to disclose that the land of the society had already been acquired and the matter was sub-judice before the High Court but he deliberately concealed this fact with the object of securing permission of the AICTE. Had he disclosed the aforesaid fact, the AICTE would not have granted the permission.

Mr. Anurag Khanna relied on S.P. Gupta vs. Ashutosh Gupta, (2010) 6 SCC 562 in support of his submission. In that case the petitioner had given

assurance that the property in question was free from all encumbrances and

the accused no.1 was sole owner but later on the assurance was found false.

The Apex Court held that a prima facie case for holding the trial was made

out. In my opinion, the verdict of the Apex Court in the said case supports the

submission of Mr. Anurag Khanna.

At the stage of taking cognizance of an offence or framing of a charge against the accused, the trial court is not required to make an inquiry for finding out truth in the allegations made against the accused. At that stage, the defence evidence or version can not be looked into. Whatever materials are collected during the investigation and placed in support of the charge sheet, are the only relevant material on which basis the Magistrate is required under law to take cognizance of the offence. If those materials make out a prima facie case regarding commission of an offence, the Magistrate has jurisdiction to take cognizance and issue process to the accused. In the present case, the learned Magistrate has passed a well reasoned order, while taking the cognizance and arrived at the conclusion that a prima facie case under section 420 IPC was made out against the revisionist as there were sufficient materials on record against the revisionist, therefore, the impugned order being based on evidence on record, can not be upset in exercise of revisional jurisdiction.

It may also be mentioned that the revisionist has still an option to seek his discharge in the court concerned at the appropriate stage.

In view of the reasons stated above, I do not find any illegality,propriety or jurisdictional error in the impugned order, which seems to be perfectly correct. The revision is therefore, dismissed.

However, keeping in view the facts and circumstances of the case and the complicity of the revisionist, it is provided that if the revisionist Ved Ram

Sharma appears in the court concerned and applies for bail, his bail prayer in

the aforesaid case shall be considered and dispose of by both the courts below on the same day.

Order Date :- 5.10.2010 "

The another Bench of this Court did not find any illegality, impropriety or jurisdictional error in the order dated 7.9.2010. The same has been affirmed. Now on the same material , which has been considered by another Bench of this Court, the learned Special Judicial Magistrate C.B.I. has dismissed discharge application, filed by the applicant, under section 239 Cr.P.C. The settled position of law is that for taking the cognizance, discharging the accused or for framing the charge, the material collected by the I.O. during investigation, is considered. On the same material collected by the I.O. during investigation, the learned Magistrate concerned has taken the cognizance by recording the opinion that prima facie offence under section 420 I.P.C.is made out against the applicant and same has been affirmed by another Bench of this Court in Criminal Revision No. 4231 of 2010. Now considering the same material, the learned Magistrate concerned CBI has dismissed the discharge application under section 239 Cr.P.C. moved by the applicant by disclosing the opinion that material collected by the I.O. Is, prima facie, disclosing the commission of the offence punishable under section 420 I.P.C. The learned Special Judicial Magistrate, C.B.I.Ghaziabad has not committed any error in dismissing the discharge application filed by the applicant under section 239 Cr.P.C. The material collected by the I.O.during investigation is ,prima facie, disclosing the commission of the offence punishable under section 420 I.P.C. There is no illegality in the proceedings of the above mentioned case. The prayer for quashing the proceedings of the above mentioned case as well as the order dated 11.4.2011, by which the discharge application has been dismissed, is refused.

Accordingly, this application is dismissed.

Dated : May 30, 2011.

Su