Prakash S/O. Ramdeo Jaiswal Dir. ... vs State Of Maharashtra Thr. P.S.O., ...
2023 Latest Caselaw 5140 Bom

                                    -1-             APL.113.2019. Judgment.odt



 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           NAGPUR BENCH : NAGPUR.
    CRIMINAL APPLICATION (APL) NO. 113 OF 2019

 APPLICANT                     :      Prakash S/o. Ramdeo Jaiswal, Aged
                                      about 53 years, Occu: Director of
                                      M/s. Shrihari Rice Mill & Agro
                                      Products Pvt. Ltd., R/o. Manohar
                                      Chowk, Gondia, Tah. & Distt.
                                      Gondia.

                                           //VERSUS//

 NON-APPLICANTS : 1. State of Maharashtra, through Police
                     Station Officer, Tiroda, Tq. Tiroda,
                     Distt. Gondia.

                                   2. Adani Power Maharashtra Ltd.,
                                      MIDC Plot No.A-1, Tiroda Growth
                                      Centre, Tiroda, Tq. Tiroda, Distt.
                                      Gondia.

**************************************************************
  Mr. R.L. Khapre, Senior Advocate a/b. Mr. Pushkar Deshpande,
  Advocate for the Applicant.
  Mr. S.A. Ashirgade, APP for Non-applicant No.1/State.
  Mr. M.R. Joharapurkar, Advocate for Non-applicant No.2.
**************************************************************
                       CORAM : G. A. SANAP, J.
                       RESERVED ON :     18th APRIL, 2023.
                       PRONOUNCED ON : 7th JUNE, 2023.
JUDGMENT

In this criminal application filed under Section 482 of

the Code of Criminal Procedure, 1973 (for short "Cr.PC"), the

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applicant-accused has questioned the correctness of the order dated

24th October, 2018, passed by the learned Judicial Magistrate First

Class, Tirora, whereby the learned Magistrate rejected the

application made by the applicant-accused for his discharge in

Regular Criminal Case No.21 of 2015.

02] The facts relevant for the purpose of deciding this

application are as follows:

On 24th April, 2013, one Mr. Omprakash Ramkul

Bhardwaj, the Project Officer of Adani Power Maharashtra

Limited, Tirora, Plot No.A-1 lodged a report at Tirora Police

Station against the applicant-accused. On the basis of the said

report, a crime bearing No.136 of 2013 came to be registered on

11th September, 2013 against the applicant-accused for an offence

punishable under Section 420 of the Indian Penal Code, 1860 (for

short "IPC"). In short, it is the case of prosecution against the

accused that he with dishonest intention induced the informant-

company to enter into a lease agreement knowing fully well that

the accused was not in possession of the property as well as had not

acquired title to the property. On the basis of the recovery

certificate and with fraudulent and dishonest intention, he induced

the informant-company for execution of the lease agreement.

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03] It is the case of prosecution that the land admeasuring

62.38 acres was possessed as a lessee by M/s. Lan Eseda Industries

Limited. The said industry obtained a loan from the Industrial

Finance Corporation of India. The Corporation had filed a

proceeding before the Competent Court for recovery of

Rs.81,41,124/- and obtained the recovery certificate. The Recovery

Officer after following the procedure, conducted the auction sale of

the said land namely Plot No.C-4/1 and Plot No.C-4/2, situated at

Gondia Industrial Area. The accused purchased the said land in the

auction sale. The Recovery Officer issued a recovery certificate in

favour of the accused on 6th August, 2008. The auction sale and

recovery certificate was challenged before the Debt Recovery

Tribunal-II, New Delhi. The Debt Recovery Tribunal-II, New

Delhi by order dated 6th October, 2008, set aside the auction sale

and recovery certificate issued in favour of the accused. The Debt

Recovery Appellate Tribunal, Delhi dismissed the appeal filed by

the accused against the said order. The writ petition filed by the

accused, challenging the order of the Debt Recovery Appellate

Tribunal, was also dismissed by the Delhi High Court by order

dated 4th May, 2010. The accused challenged the said order passed

by the Delhi High Court in the Supreme Court by filing Special

Leave Petition. The Special Leave Petition was dismissed on 27 th

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September, 2010. It is the case of prosecution that on 1 st August,

2010, the accused represented the informant that he has become an

absolute owner on the basis of the recovery certificate and as such

executed a lease agreement in favour of the informant. The lease

agreement was for a period of 12 months commencing from 1 st

August, 2010. The possession of the land was handed over to the

informant.

04] It is stated that the accused concealed from the

informant the orders passed till the execution of lease deed with

regard to setting aside of the auction sale. It is further stated that

the accused was never put in possession of the land. He represented

that he had taken the possession of the land and as such was

competent to hand over the possession of the land to the

informant. The informant on initiation of proceeding by the

Recovery Officer after dismissal of the Special Leave Petition, came

to know about the real state of affairs. The Recovery Officer in the

said proceeding appointed a Court Receiver for taking possession

of the property and for fresh sale of the said property. A direction

was issued by the Recovery Officer on receipt of the report from

the Court Receiver, to deliver the possession of the property to the

Court Receiver. It is stated that the accused concealed the material

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facts from the informant. The intention to deceive the informant

was writ large. The informant was cheated. The informant suffered

huge damage.

05] On the basis of this report, a crime as above came to be

registered. After investigation, the charge-sheet was filed against

the accused in the Court of Judicial Magistrate First Class, Tirora

for the offence punishable under Section 420 of the IPC. The

accused made an application under Section 239 of the Cr.PC for

his discharge. It is contended that the informant was apprised

about the real state of affairs. After issuance of recovery certificate

in his favour, he had constructed a Godown on the property under

the reasonable belief and presumption that the formal possession

receipt was not necessary and warranted under law. He had

apprised the informant about the nature of his title. The informant

is a company manned by experts was supposed to make an enquiry

about the title of the accused. On the basis of the recovery

certificate, the company entered into a transaction with the

accused. There was no intention on his part to deceive the

informant, when the lease deed was executed. The subsequent

events, which led to the cancellation of the recovery certificate,

were not under the control of the accused. The informant has

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enjoyed the property and received the benefits. The subsequent

two lease deeds executed one after the other, indicate that there was

no intention on the part of the accused to cheat. According to the

accused, the dispute is of civil nature. The informant has given the

colour of criminality to the said dispute just to pressurize the

accused. The prosecution lodged against him is without substance.

There is no evidence to prima facie indicate that he has committed

any offence. There is no evidence to presume that he has

committed any offence and therefore, he is entitled to be

discharged.

06] The prosecution filed reply and opposed the application.

According to the prosecution, there is sufficient material on record

to presume that the accused has committed the offence. The

accused at the very inception of transaction had an intention to

cheat the informant. The accused concealed all the facts known to

him from the informant. On the basis of recovery certificate

without obtaining the possession by lawful means, he represented

the informant that he became the full owner of the property. The

informant believed the said representation.

07] The learned Judicial Magistrate First Class, Tirora, on

consideration of the material placed on record, found the said

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material sufficient to presume the commission of offence by the

accused. The learned Magistrate opined that therefore, the charge

is required to be framed against the accused. Learned Magistrate

dismissed the application. Being aggrieved by this order, the

accused has come before this Court.

08] I have heard Mr. R.L. Khapre, learned Senior Advocate

for the accused, Mr. S.A. Ashirgade, learned Additional Public

Prosecutor for the State and Mr. M.R. Joharapurkar, learned

advocate for the informant. Perused the record and proceedings.

09] Learned Senior Advocate for the accused submitted that

the facts and evidence, if considered at its face value, would show

that the offence of cheating punishable under Section 420 of the

IPC has not been made out against the accused. Learned Senior

Advocate submitted that the informant-company being manned by

experts could not even contend that without making thorough

enquiry as regards the title of the accused, the transaction was

entered into with the accused. Learned Senior Advocate submitted

that the accused had apprised the informant about the real state of

affairs and therefore, the question of having entertained a dishonest

intention at the very inception of transaction by the accused cannot

be believed and accepted. Learned Senior Advocate submitted that

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the prima facie consideration of the material on record would show

that the dispute between the accused and the informant is of civil

nature. Learned Senior Advocate pointed out that in order to seek

redressal of dispute, the informant-company has filed a civil suit

against the accused for damages. Learned Senior Advocate

submitted that simultaneously this criminal proceeding has been

initiated just to harass and pressurize the accused to succumb to the

proposals of the informant. Learned Senior Advocate pointed out

that the civil dispute is tried to be given the colour of criminal

offence. In the submission of learned Senior Advocate, the offence

has not at all been made out on the basis of the facts and evidence.

Learned Senior Advocate further submitted that since the civil suit

has reached the stage of final adjudication, it would be necessary to

keep this proceeding in abeyance till the decision of the civil suit.

Learned Senior Advocate submitted that the material on record is

not sufficient to prima facie establish the commission of offence of

cheating by the accused and as such not sufficient to frame the

charge against the accused. Learned Senior Advocate submitted

that this criminal prosecution is the abuse of the process of law and

therefore, the accused is required to be discharged. Learned Senior

Advocate took me through the order passed by the learned

Magistrate First Class, Tirora and submitted that all these facts

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have not been properly appreciated and considered by the learned

Magistrate.

10] Learned advocate for the informant submitted that after

registration of the FIR, the investigation conduced by the police

revealed the complicity of the accused in the commission of crime.

Learned advocate submitted that the accused conveniently

concealed the facts within his knowledge with regard to setting

aside of the auction sale and recovery certificate by the Debt

Recovery Tribunal, New Delhi and the confirmation of the said

order by the Delhi High Court. Learned advocate submitted that

when the first lease deed was executed by the accused, the Special

Leave Petition was pending in the Apex Court, where the order

passed by the Delhi High Court was challenged. Learned advocate

pointed out that this fact was also not made known to the

informant. Learned advocate, therefore, submitted that the accused

concealed the material fact from the informant with an intention to

deceive and cheat the informant. Learned advocate submitted that

this intention of the accused to cheat the informant at the very

beginning of transaction can be gathered from the facts,

circumstances and material brought on record. Learned advocate

submitted that the facts stated in the FIR would prima facie

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establish the basic ingredients of the offence of cheating punishable

under Section 420 of the IPC. Learned advocate submitted that the

dispute between the parties cannot be termed as a civil dispute

simply because of the recourse taken by the informant to the

remedy under the civil law. Learned advocate submitted that the

facts and the evidence clearly satisfy the ingredients of offence of

cheating. Learned advocate further submitted that at the stage of

framing of charge or while deciding the discharge application, the

Court has to sift the material for limited purpose of finding out

whether the same is sufficient to presume the commission of

offence by the accused. In the submission of the learned advocate,

the material on record is sufficient to satisfy this fundamental

requirement of law. Learned advocate further submitted that

initiation of civil proceeding in Civil Court cannot be a bar for

initiation and continuation of the criminal prosecution, if the facts

and evidence clearly indicate the commission of an offence.

11] Learned Additional Public Prosecutor for the State

adopted the submissions advanced by the learned advocate for the

informant. Besides, learned Additional Public Prosecutor

submitted that the material on record is sufficient to frame the

charge against the accused for the offence punishable under

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Section 420 of the IPC. Learned Additional Public Prosecutor

submitted that the scope of enquiry at the stage of hearing the

discharge application is very limited. Learned Additional Public

Prosecutor submitted that the right to initiate a civil proceeding

and right to launch prosecution for commission of an offence are

two distinct and separate aspects. Learned Additional Public

Prosecutor submitted that in the facts and circumstances, in case of

commission of criminal offence by the accused, the informant can

take recourse to the remedy provided under the civil law. It is

submitted that the recourse taken to this remedy under civil law

cannot bar the informant from reporting the criminal offence to

the police and further prosecution on the basis of the prima facie

evidence of the commission of the offence.

12] In order to appreciate the rival submissions, at the outset,

it would be necessary to set out the certain undisputed facts, which

in my view would be relevant for deciding the dispute in this

application. The informant purchased the property in an auction

sale. On 6th August, 2008, the recovery certificate was issued to

him by the Recovery Officer, as per the order of the Debt Recovery

Tribunal. The auction sale and issuance of recovery certificate to

the accused was challenged before the Debt Recovery Tribunal-II,

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New Delhi. On 6th October, 2008, the Debt Recovery Tribunal-II,

New Delhi set aside the auction sale and the recovery certificate

issued to the accused. The accused challenged the said order in

appeal before the Debt Recovery Appellate Tribunal, New Delhi.

On 9th June, 2009, the appeal came to be dismissed. The accused

challenged the said order by filing writ petition in the Delhi High

Court. The Delhi High Court on 4th May, 2010 dismissed the writ

petition. The accused approached the Hon'ble Apex Court by

filing Special Leave Petition. The Special Leave Petition came to be

dismissed on 27th September, 2010.

13] The lease agreement was executed by the accused in

favour of the informant on 1st August, 2010. On the date of

execution of lease agreement by the accused, the Special Leave

Petition was pending before the Supreme Court. It is to be noted

that on the date of execution of lease deed, the order passed by the

Debt Recovery Tribunal-II setting aside the auction sale and

recovery certificate was confirmed and maintained by the Delhi

High Court by order dated 4th May, 2010. It is to be noted that the

informant was not a party to the said proceeding. Similarly, the

informant was not privy to the said proceeding in any manner. If

both the parties had knowledge of the above facts, then they were

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expected to make a reference in the lease deed of the order passed

by the Delhi High Court. It is to be noted that, if the accused had

brought the said fact to the notice of the informant, the informant

would have two options. The first option with the informant was

to make a mention of this fact in the lease agreement and make the

lease agreement conditional subject to the outcome of the Special

Leave Petition, pending before the Hon'ble Supreme Court. The

second option with the informant was to back out from the

transaction and not to take the risk. If the accused had made the

informant aware of the actual factual position, then the accused

would have insisted for inserting a clause in the lease deed, to save

and safeguard his interest.

14] It is to be noted that in the facts and circumstances, the

accused had no right to execute a lease deed in favour of the

informant in respect of the property. The auction sale and recovery

certificate issued to the accused was already set aside. The

possession of the property after recovery certificate was not handed

over to the accused. It is to be noted that by deeming legal fiction

on the basis of recovery certificate, the auction purchaser would not

get a symbolic possession of the property. There is specific

provision under law that after auction sale, recovery certificate has

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to be issued. The amount has to be deposited by the auction

purchaser. After satisfying all the requirements, the Recovery

Officer is required to handover the actual possession of the

property to the purchaser.

15] In this case, indubitably the actual possession of the

property was not handed over to the accused. The material on

record clearly indicates that on the basis of the recovery certificate,

the accused represented the informant that he had taken the

possession of the property. Perusal of the lease deed would show

that there is a clause with regard to the handing over of the actual

possession to the informant by the accused. It is, therefore,

apparent on the face of the record that on the date of the lease

deed, the right in the property was not vested in the accused. He

was not entitled to deal with and dispose of the property in any

manner. The disposal of the property in this manner by the accused

was contrary to the law.

16] As far as the informant is concerned, it is contended that

the informant was deceived with dishonest and fraudulent

intention to enter into a transaction and take the possession of the

property. It is true that the informant-company is manned by

experts. It was, therefore, expected on their part to make an

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enquiry as to the clear tile of the property. However, a person

having purchased the property in an auction sale and armed with a

recovery certificate was expected to know the real state of affairs.

After auction sale and recovery certificate, one can be made to

believe that the said person has acquired the right in the property.

17] In this case, the accused is not justified in raising the

defence on the above line at this stage. Such defence in support of

his prayer seeking discharge would have been considered at this

stage, if he had entered into a transaction with the informant after

taking actual possession of the property on the basis of the recovery

certificate. It is seen that this case is not as simple as sought to be

made out. In this case, the auction sale and the recovery certificate

was set aside by the Debt Recovery Tribunal. The said order was

confirmed by the Delhi High Court. While deciding the role of the

informant in this situation, in the facts and circumstances, it has to

be presumed that, if the informant had been made aware of setting

aside of auction sale and recovery certificate, the informant would

not have entered into any agreement or transaction in respect of

the said property with the accused. A person of ordinary prudence

in the fact situation would not have taken such a risk. In my view,

all the abovestated facts cannot be glossed over, while appreciating

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the submissions advanced by the learned advocate for the parties.

18] It is to be noted that after FIR, the investigation was

conducted. The investigation revealed the complicity of the

accused in the commission of crime. The main evidence relied

upon is in the form of documents. It is true that the informant-

company has filed a civil suit for recovery of damages against the

accused. In the discharge application, it has been stated that there is

no iota of material to make out the offence of cheating by the

accused and as such to frame the charge against him. Learned

Senior Advocate for the accused took me through the record and

tried to convince me that there is no material or the available

material on record is not sufficient to frame the charge against the

accused. It is to be noted that the only question needs to be

addressed in the teeth of the above undisputed facts and material,

is to ascertain the intention of the accused, when he entered into a

lease agreement with the informant. The facts, circumstances and

material on record prima facie indicate that the accused at the very

inception of the transaction knew the real state of affairs.

Therefore, the material on record is sufficient to infer the intention

of the accused to deceive the informant at the very inception of the

transaction. There is material on record to support this inference at

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this stage. The material is sufficient to presume the commission of

an offence by the accused. In the teeth of this settled position in

the law as to the scope of enquiry at the stage of framing of charge

or at the stage of deciding the application for discharge needs to be

considered.

19] In this context, a useful reference can be made to the

decisions of the Hon'ble Apex Court in the cases of Tarun Jit

Tejpal Vs. State of Goa and Another [(2020) 17 SCC 556] ;

Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra

Bhimraj Bijjaya and Others [(1990) 4 SCC 76] and Sajjan Kumar

Vs. Central Bureau of Investigation [(2010) 9 SCC 368], wherein it

has been held that appreciation of evidence at the time of framing

of the charge or while considering discharge application, is not

permissible. The Court is not permitted to analyse all the material

touching the pros and cons, reliability and acceptability of the

evidence. In the case of Tarun Jit Tejpal (supra), it is held that at

the time of consideration of the application for discharge, the

Court cannot act as a mouth piece of the prosecution or act as a

post office and may sift evidence in order to find out whether or

not the allegations made are groundless so as to pass an order of

discharge. It is held that at the stage of consideration of application

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for discharge, the Court has to proceed with an assumption that the

materials brought on record by prosecution are true and evaluate

the said materials and documents with a view to find out whether

the facts emerging therefrom taken at their face value disclose the

existence of all the ingredients constituting the alleged offences. At

this stage, the Court is not expected to go deep into the matter and

hold that materials would not warrant a conviction. It is held that

what needs to be considered is whether there is a ground for

presuming that the offence has been committed and not whether a

ground for convicting accused has been made out. It is further

held that the law does not permit a mini trial at the stage of

deciding the discharge application or at the time of framing of

charge.

20] In this case, on sifting and analysing the material on

record, I am of the view that it is sufficient to presume the

commission of the offence by the accused. If the material is

appreciated contrary to the settled position of law, then it would

amount to conducting a mini trial at the stage of framing of charge

or while deciding the discharge application. The case on hand does

not fall within the permissible parameters of law to discharge the

accused.

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21] In the above background, it would be necessary to

consider the decisions relied upon by the learned advocates for the

parties. Mr. R.L. Khapre, learned Senior Advocate for the accused,

relying upon the decisions in the cases of B. Suresh Yadav Vs.

Sharifa Bee and Anr. [AIR 2008 SC 210] and Laxman Vithoba

Jadhav and Others Vs. State of Maharashtra and Others [2016 (1)

Bom.C.R. (Cri.) 167], submitted that one parallel proceeding is

pending before the Civil Court and Civil Court is yet to adjudicate

on the issue. The complainant should not be allowed to use the

criminal justice system. In the case of B. Suresh Yadav (supra), the

civil suit was pending regarding the same subject matter. The plea

taken by the contesting party was found inconsistent. The Hon'ble

Supreme Court, therefore, held that in such a case, such a

proceeding cannot be turned into a criminal case.

22] Learned advocate for the informant in order to meet this

submission has placed heavy reliance on the decision in the case of

M.S. Sheriff, P.C. Damodaran Nair Vs. State of Madras, M.

Govindan, Damodaran [AIR 1954 SC 397]. In this case, in respect

of the same subject-matter, there was a civil as well as a criminal

proceeding. The facts giving rise to the proceedings were identical.

The question before Five Judge Bench of the Hon'ble Apex Court

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was as to whether the civil matter or the criminal matter deserves

precedence in such a situation. The Hon'ble Apex Court has held

that as between the civil and criminal proceedings, the criminal

matter should be given precedence. It is further observed that a

civil suit often drags on for years and therefore, it is undesirable

that a criminal prosecution should wait till everybody concerned

has forgotten all about the crime. The public interests demand that

criminal justice should be swift and sure; that the guilty should be

punished while the events are still fresh in the public mind and that

the innocent should be absolved as early as is consistent with a fair

and impartial trial. It is further observed that another reason for

such a course of action is that it is undesirable to let things slide till

memories have grown too dim to trust. It is to be noted that in the

backdrop of this principle of law laid down by the Hon'ble Apex

Court and distinguishing facts of this case, the decisions relied

upon by the learned Senior Advocate for the accused are not

applicable in this case. It is to be noted that on the basis of same set

of facts, the criminal offence as well as the right to take recourse to

the remedy by filing a civil suit may accrue to the party. The law

does not provide that simply because of the availability of the

remedy under civil law the criminal offence made out on the basis

of the same facts, would get vanished.

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23] Learned Senior Advocate for the accused in support of

his submission that the basic ingredients of Section 420 of the IPC

and particularly the ingredients of wrongful loss, have not been

satisfied in this case and therefore, the accused is entitled to be

discharged and further that the dispute between the parties is a

plain and simple breach of contract and therefore, cannot be

permitted to be taken to the criminal Court, has relied upon the

decisions in the cases of Vijay Kumar Ghai and Others Vs. State of

West Bengal and Others [(2022) 7 SCC 124] ; Merino Leathers

Pvt. Ltd. and Another Vs. Wentzel and Schmit Gmbh and Another

[2004(1) Mh.L.J. 66] and Dalip Kaur and Ors. Vs. Jagnar Singh

and Anr. [AIR 2009 SC 3191].

24] Learned advocate for the informant in order to meet this

submission has relied upon the decisions in the cases of M.

Krishnan Vs. Vijay Singh and Another [AIR 2001 SC 3014] ;

Tamil Nadu Mercantile Bank Ltd. Vs. State through Deputy

Superintendent of Police and Anr. [AIR 2014 SC (Supp) 555] and

Vijayander Kumar and Ors. Vs. State of Rajasthan and Anr. [AIR

2014 SC (Supp) 1319].

25] I have perused the decisions relied upon by the learned

advocates for the parties. The legal position culled out from the

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decisions needs to be stated. It is held that wrongful loss and

wrongful gain are essential elements to attract the offence under

Section 420 of the IPC alongwith the cogent evidence to show that

at the very inception of the transaction, the intention of the

accused was dishonest and fraudulent. The civil dispute arising out

breach of contract cannot be given a colour of criminal offence.

The fraudulent intention at the time of making promise or

representation is necessary to constitute an offence. It is further

held that in all cases of cheating and fraud, in the whole

transaction, there is generally some element of civil nature. It is

held that the criminal prosecution cannot be quashed only because

the other side has filed a civil suit with respect to the same

transaction. It is held that the criminal proceedings can continue

on same set of facts even if the facts discloses the civil dispute as

well. The availability of civil remedy cannot be a ground to quash a

criminal proceeding.

26] In my view, in this case for the reasons recorded

hereinabove, the decisions relied upon by the learned Senior

Advocate for the accused would not be applicable. I have already

considered the undisputed facts and the material on record. The

material on record would prima facie show that at the very

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inception of the transaction, the intention of the accused was

dishonest and fraudulent. He knew the real state of affairs. He was

made aware by the judicial pronouncements that he was not

entitled to claim the right in the said property. There is no material

at this stage to conclude that he had made the informant aware of

all these facts before executing the lease deed. The intention of the

party has to be ascertained on the basis of the facts and

circumstances obtained on the record. The Court for the purpose

of ascertaining the intention of the party has to take the material in

entirety into consideration and form an opinion. The Court within

permitted limits on the basis of the prima facie material and

undisputed facts can draw inference as to the intention of the

accused.

27] In this case, the accused transferred the interest in the

property in favour of the informant knowing fully well that he had

no right in the property. On the date of the transaction, he knew

that the very auction sale and the recovery certificate on the basis

of which he claimed the right in the property, was set aside. The

order of Debt Recovery Tribunal setting aside the auction sale and

the recovery certificate was confirmed by the Delhi High Court.

The accused was, therefore, not entitled to dispose of the property.

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In the fact situation, he would not have transferred the property to

anybody including the informant. In my view, if the matter is

considered in the backdrop and conspectus of the facts and

evidence on record, it would show that the learned Magistrate was

right in rejecting the application.

28] I, therefore, conclude that there is no substance in the

application. It cannot be said that the criminal prosecution

launched against the accused, is misuse of the process of the law.

The application being devoid of merits deserves to be dismissed.

29] It is made clear that the observations made in this

judgment are for the purpose of deciding this application and

therefore, the trial Court, while deciding the matter on merits, shall

not get influenced by the same in any manner.

30] Accordingly, the application is dismissed.

(G. A. SANAP, J.)

Vijay