R.K. Bag, J. - (1.) The petitioner has challenged the order dated December 4, 2010 passed by learned Judicial Magistrate, 2nd Court, Contai, Purba Mednipore in G.R. No. 639 of 2006 by preferring this revision under Sec. 401 read with Sec. 482 of the Code of Criminal Procedure.
(2.) It appears from the materials on record that Contai Police Station Case No. 232 of 2006 dated December 12, 2006 under Ss. 420/468/471/409/34 of the Indian Penal Code was registered on the basis of the written complaint submitted by the petitioner. The police investigated the said criminal case and submitted charge sheet against the Opposite Party No. 4 for the offence under Ss. 420/468/471/34 of the Indian Penal Code. The petitioner being the de facto complainant filed an application before the court of learned Magistrate praying for further investigation, but the said application was rejected by learned Magistrate. The court framed charge against the Opposite Party No. 4 for the offence under Ss. 420/468/471 of the Indian Penal Code and one prosecution witness is examined in part. The prosecution filed an application before the trial court under Sec. 319 of the Code of Criminal Procedure praying for impleading the Opposite Party Nos. 2 and 3 as the accused persons. On December 4, 2010 learned Magistrate rejected the said application filed by the prosecution under Sec. 319 of the Code of Criminal Procedure. The said order dated December 4, 2010 is under challenge in this revision.
(3.) Mr. Sandipan Ganguly, learned counsel for the petitioner contends that learned Judge of the trial court rejected the application of the petitioner on three grounds: first, the petitioner did not raise any objection when the Investigating Officer submitted charge sheet only against the Opposite Party No. 4; secondly, the sufficient evidence is not available on record to proceed against the Opposite Party Nos. 2 and 3 for the offence under Ss. 420/468/471 of the Indian Penal Code; and thirdly, the prosecution has invoked the provision of Sec. 319 of the Code of Criminal Procedure at the belated stage. Mr. Ganguly argues that the observation of learned Judge of the trial court that the petitioner did not raise any objection at the initial stage is contrary to facts, because the petitioner filed an application before the court of learned Magistrate praying for further investigation which was turned down by learned Magistrate. He further argues that there are sufficient evidence on record to establish complicity of the Opposite Party Nos. 2 and 3 in committing the offence of cheating punishable under Sec. 420 of the Indian Penal Code. He also submits that only one prosecution witness is examined in part and as such this is the proper stage to proceed against the co -accused persons by invoking the provision of Sec. 319 of the Code of Criminal Procedure. Mr. Ganguly has specifically submitted that the Opposite Party No. 2 being the then Branch Manager of the United Bank of India made joint inspection of the site where the building of the petitioner was constructed and thereby he made collusion with the principal accused person for sanctioning the loan in favour of the principal accused person by way of mortgage of the land of the petitioner, though the Opposite Party No. 3 subsequently tried to regularize the illegality committed by his predecessor -in -office.;