Rajesh Chandra - (1.) REVISIONISTS Rakesh, Anil and Ajay have filed this revision against the order dated 20.7.2009 passed by Chief Judicial Magistrate, Mathura rejecting the application of the applicants for their discharge in Case No. 296/05 under Sections 420, 406 and 506, I.P.C. and Section 20 of Mines and Minerals Act.
(2.) IN brief, the facts of the case are that the first informant Surendra Kumar gave an affidavit to the Circle Officer, Sadar Mathura, deposing therein that about three years back Raghunath Mallah, who was known to him, told that some devotee had offered ring, bangles and 'kundal' to the holy river Ymauna and probably these ornaments are of diamond. The first informant examined those ornaments and found them to be worth Rs. 1.5 crore. The first informant advised Raghunath either to dedicate those ornaments again to the holy river Yamuna or to deposit them in the Government treasury, Raghunath after consultation with his brothers handed over the ornaments to the first informant Surendra with a direction that the ornaments may be deposited with the treasury. When the first informant Surendra was returning to Mathura the accused Rakesh and Anil met him. They were the known jewellers of the city. The first informant showed these ornaments to them and narrated the entire story. They both examined the ornaments and told that they are precious. Rakesh and Anil then said that the ornaments be deposited in the office of the Collector. The first informant, Rakesh and Anil came to the office of Collector. Rakesh went inside and on his return told that the Collector is not there. The first informant then suggested that the ornaments may be given to the Collector at his residence but they both said that the ornaments will be given in the office. The allegation of the first informant Surendra is that since he was having cordial relations with Rakesh and Anil and since they were the big businessmen he left the bag with them. They assured that they will deposit the ornaments in the office of the Collector next day. When the first informant made enquiries from them they confirmed that the ornaments have been deposited in the office. However, the first informant being suspicious made an enquiry and found that the ornaments were not deposited in the office of the Collector. When the first informant made enquiries from them in this regard they threatened and said that they will manage to send the first informant to jail. It was also mentioned in the affidavit that their brother Ajay is the head of the family and is famous for such type of cheating. It was also mentioned that the accused Anil, Rakesh and their brother Ajay are threatening to kill. According to the first informant when he visited the house of Rakesh and Anil he was accompanied by Praveen, Horilal, Gopal, Lalchand, Viswanath and Kishanlal. On the basis of this affidavit an enquiry was made by the Circle Officer and sufficient evidence was collected. The F.I.R. then was lodged against the three accused-persons. The case was registered at the P.S. at Crime No. 68/05 and after investigation a final report was submitted in favour of the accused. After receipt of the final report a notice was sent to the first informant Surendra who in return filed protest petition. The Chief Judicial Magistrate, Mathura rejected the protest petition and accepted the final report vide order dated 4.6.2007. First informant Surendra filed a Criminal Revision No. 383/07 which was ultimately allowed by the Additional Sessions Judge, Mathura vide order dated 18.6.2008. The revisional court directed that the Magistrate shall decide the protest petition in the light of the observations made in the judgment of the revisional court. The matter again reached in the court of C.J.M., Mathura, who after hearing the complainant rejected the final report and summoned the accused Rakesh, Anil and Ajay for the aforesaid offences against the summoning order the applicants filed Criminal Miscellaneous Application No. 15506/09 before the Hon'ble Allahabad High Court but that application was dismissed vide order dated 7.7.2009. The applicants then moved an application for their discharge alleging therein that there is no reliable evidence against the applicants, the report lodged against them has been filed with inordinate delay and under suspicious circumstances and since there was no evidence against them, the Investigating Officer had submitted a final report in their favour. It was also mentioned in the application that in the F.I.R. it has not been mentioned as to when the ornaments were given to the accused and at what time and place. The learned Magistrate after hearing the parties rejected the discharge application vide order dated 20.7.2009 and it is this order which has been challenged in this revision.
(3.) I have heard the learned counsel for the revisionists as well as the learned A.G.A. and perused the papers as have been filed by the revisionists with the revision. Learned counsel for the revisionists argued that it has not been mentioned in the affidavit of Surendra Kumar as to when the ornaments were given to the accused. It has also not been mentioned as to at what time and place the ornaments were handed over to the accused persons. During investigation the Investigating Officer came to the conclusion that no offence is made out against the accused and as such submitted final report which was wrongly rejected by the Magistrate on the basis of protest petition. The contention is that the report was lodged after a long gap and it has not been explained as to why the F.I.R. was not lodged earlier. It was also argued that it is the first informant Surendra himself who in collusion with the local police has misappropriated the ornaments which were taken from Raghunath Mallah and he has involved the accused persons to save his skin.;