Rajesh Dayal Khare, J. - (1.) HEARD learned Counsel for the applicant and learned AGA for the State -respondent.
(2.) THE present Petition has been filed for quashing of the chargesheet dated 09.07.2008 in case crime No. 386 of 2007 under Section IPC and also for quashing of the proceedings of case No. 956/IX/08 under Section IPC pending before the Judicial Magistrate, Chhata, District Mathura and also for quashing of the summoning order dated 21.07.2008. In para 11 of the accompanying affidavit, it has been stated that the applicant was not aware of the order dated 21.07.2008 till the last week of May, 2010 and came to know when the police came to his office in his absence and informed his office about the issuance of non -bailable warrants issued against him. It is contended by learned Counsel for the applicant that it is a contractual matter. The opposite party No. 2, who was the sub -contractor has himself breached the contract and therefore, the civil matter has been dragged into criminal prosecution of the applicant by the opposite party No. 2. Further contention of the counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.
(3.) FROM the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur v. State of Punjab : A.I.R. 1960 S.C. 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr. (Para -10), 2005 SCC (Cri.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got right of discharge under Section or or /, Cr.P.C. as the case may through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.;