V.N.Varma - (1.) THIS revision in directed against an order dated 2-4- 1973 confirming the order dated 15-9- 1972 passed by Sri P. N. Mehrotra, Magistrate 1st Class, Kanpur committing the applicant and some others to the Court of Session for standing their trial under Sections 120-B, 419, 420, 466, 467,, 468 and 471 IPC.
(2.) IN the year 1965 the applicant was Head Cashier in the office of the Director of INdustries, U. P., at Kanpur It is said that he entered into a conspiracy with some officials of the Directorate and some other unknown persons and in pursuance of that conspiracy cheated the State Bank of INdia to the extent of Rs. 24000/-. A voucher of Rs.24,000/- purported to have been issued by Sri C. R. Mittra, Director, H. B. T.I,, Kanpur in the name of Ram Pratap Singh was drawn and the same was subsequently encashed. The allegation is that a blank voucher form and some rubber seals were furnished by this applicant, and that voucher was subsequently forged by one Ali Raza, who is now dead. The forged voucher was given, to on? Isha Khan,, who impersonated himself; as Ram Pratap Singh Bhatia and encashed the voucher from the Bank; Binda, Prasad Khanna was said to have introduced - Isha Khan as Ram Pratap Singh Bhatia. When the fraud came to light the whole thing was inquired into and the police registered a case against the applicant, Ali Raza, Isha Khan and Binda Prasad. The inquiry into the case was done by Sri P. N. Mehrotra, Magistrate 1st Class. He recorded the statements of some witnesses and eventually committed the applicant, Isha Khan and Binda Prasad to the Court of Session. Ali Raza died when the case was still at the inquiry stage. The applicant filed a revision in the Court of Session against the order of commitment on the ground that there was no evidence against him on the basis of which he could have been committed for trial. The learned Session Judge dismissed his revision vide order dated 2-4-1973. Aggrieved, he has now come up in revision to this Court. I have heard the learned counsel for the parties at sufficient length and after doing so I am firmly of the view that this revision must be allowed. The role which had been assigned to the applicant in this case was that he had supplied a blank voucher form and some rubber seals and it was on that blank voucher form and with the help of those rubber seals that a voucher of Rs.24000/- in the name of Ram Pratap Singh Bhatia was forged and eventually the said voucher was enca$hed from the State Bank of India, Kanpur. None of the witnesses examined by the committing court said anything against the applicant implicating him in any manner with the forging of the voucher in question. This fact has also been mentioned by the Sessions Judge in his order dated 2-4-1973. Despite the fact that there was no evidence against the applicant, the committing Magistrate still committed the applicant to the Court of, Sessions saying that in his statement under Section 161 CrPC S. K. Mukhaerji had given out certain facts which clearly went to implicate the applicant in this case. S. K. Mukherji was not examined in this case and, therefore, it was not at all proper on the part of the Magistrate to have looked into his statement under Section 161 CrPC while committing the applicant to the Court of Sessions. A statement recorded under Section 161 CrPC can be utilised only for contradiction or corroboration purposes. By no means it can be treated as a substantive piece of evidence. It was, therefore, absolutely incorrect on the part of the committing Magistrate to have placed reliance on the statement of S. K. Mukherji recorded under Sec. 161 CrPC. If the statement of S. K. Mukherji under Sec. 161 is thrown out, then there is no evidence on the basis of which the applicant could have been committed to the Court of Sessions. Obviously, without evidence no commitment could have been done under the old Code. Even, the learned counsel for the State conceded this fact before me. Therefore, as it is, there can be no doubt about the fact that the commitment of the applicant to the court of Sessions is absolutely against law.
(3.) LEARNED counsel for the State, however, contended that the case may be remanded to the court of the Magistrate and the Magistrate be directed to record the statement of S. K. Mukherji and then commit the case to the Court of Sessions. I am afraid, I cannot persuade myself to accept this contention of the learned counsel. The case against the applicant is handing fire since the year 1965. He has already been harassed enough. Further, in similar cases against the applicant, S. K. Mukherji has been disbelieved by this Court in Criminal Appeals Nos. 2647 of 1969 and 2666 of 1969. Therefore nothing tangible would come out by the examination of S. K. Mukherji in this case. Consequently, I do not think any useful purpose will be served by remanding the case to the Court of the Magistrate, as desired by the learned State Counsel. In the result, I allow this revision and set aside the orders passed by the Courts below. Revision allowed.;