Hon'ble Rajesh Dayal Khare, J. - (1.) HEARD learned counsel for the applicant and learned A.G.A. for the State -respondent. The present 482 Cr.P.C. petition has been filed for quashing the proceedings of case no. 348 of 2009, under Sections 419, 420, 467, 468, 506 IPC, in case crime no. 67/08, police station Bhelupur, Varanasi, pending before the Additional Chief Judicial Magistrate, Varanasi.
(2.) LEARNED counsel for the applicant contends that the applicant is the proprietor of M/s Kolkata Tailors, which firm had two shops and two godowns in its tenancy, which was owned by Kashiraj Dharm -Karyanidhi Trust. It is contended that one Jawahir Singh was the employee of the applicant , who fraudulently by taking money from the opposite party no. 2, sold the tenancy to him without the knowledge of the applicant . It is contended that the applicant was not beneficiary of the aforesaid transaction and when the applicant came to know of the same, he filed Original Suit No. 237 of 2005 before the Civil Judge, Junior Division, Shahar, Varanasi in which, injunction order was also granted to the applicant. It is further contended that the aforesaid transaction took place in the year 2004 and when Jawahir Singh died in the year 2008, the opposite party no. 2 had initiated the proceedings against the applicant which is bad in law. The 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 482 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 Vs. State of Punjab, : A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal,, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma,, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para -10), 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 Sections 239, 227/228 or 245(2) 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. The prayer for quashing the proceedings, is hereby refused.;