Rajesh Dayal Khare, J. - (1.) HEARD learned Counsel for the applicant and learned A.G.A.
(2.) THE present 482 Cr.P.C. petition has been filed for quashing the proceedings of Case No. 7 of 2009 Phool Chandra v. Rajendra, under Sections , , , , I.P.C., pending before learned Additional Chief Judicial Magistrate -VI, District Varanasi as well as for quashing of summoning order dated 03.04.2010 issued in the aforesaid case against the applicant. It is contended by learned Counsel for the applicant that the opposite party No. 2 had sold the tractor in favour of the applicant for a sale consideration of Rs. 2 lacs but thereafter, he demanded more money and the opposite party No. 2 also filed an application dated 29.12.2007 before the Assistant Regional Transport Officer, Varanasi against the transfer of the vehicle in favour of the applicant but the said Officer, after hearing the parties came to the conclusion that the tractor was sold by the opposite party No. 2 in favour of the applicant, therefore, rejected the application of the opposite party No. 2, copy of which is annexed as Annexure -2 to the affidavit accompanying the present application. It is further argued that the criminal prosecution of the applicant for the alleged offence at the behest of the opposite party No. 2 is bad in law.
(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 (Cr.) 426; State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and Anr., 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section or /, or Cr.P.C. as the case may be 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.;