- (1.) HEARD learned counsel for the petitioner and learned counsel for the State as also learned counsel for opposite party No 2.
(2.) THE petitioner is aggrieved by the order dated 5.7.2001 passed by Shri A.K. Rai, learned Judicial Magistrate 1st Class, Dhanbad, in G.R. No. 1791 of 1998 whereby, the application filed by the petitioner for discharge was rejected by the Court below finding that there are materials for framing the charge under Section 409 of the Indian Penal Code against the petitioner. The petitioner has been made accused in C.P. Case No. 190 of 1998, which was filed by opposite party No. 2 Gopal Singh in the Court of Chief Judicial Magistrate, Dhanbad. According to the complaint case, the petitioner Mulk Raj Singh, the complainant Gopal Singh and one Ajay Kumar Singh were the partners of a Firm, namely, M/s Spare Link. It is alleged in the complaint petition that the firm received the payment of Rs. 10,000/- and Rs. 29,951/- through two cheques from BCCL, which were encashed by the accused-petitioner without giving any knowledge thereof to the complainant-partner and the accused-petitioner had misappropriated the said amount. With these allegations, the complaint petition was filed, which was sent for institution of police case and investigation under Section 156 (3) Cr.P.C., on the basis of which, Jharia (Tesra) P.S. Case no. 140 of 1998 corresponding to G.R. No. 1791 of 1998 was instituted and investigation was taken up. It appears that after investigation, the police had submitted charge sheet for the offence under Sections 406 and 420 of the Indian Penal Code and subsequently, cognizance was also taken by learned Chief Judicial Magistrate, Dhanbad, by order dated 5.9.1998 in the said G.R. Case no. 1791 of 1998 and the case was transferred to the Court of Judicial Magistrate for disposal. While the case was pending before the Court of Sri A.K. Rai, Judicial Magistrate 1st Class, Dhanbad, an application was filed by the petitioner for discharge stating that in the facts of this case, no offence was made out against the petitioner and the dispute between the parties ought to have been referred for arbitration as per the arbitration clause in the Deed of Partnership. The Court below considered the application filed by the petitioner and taking into consideration, the material collected by the police during investigation that the petitioner had misappropriated the money which he had received from BCCL, found that there was material to frame charge against the petitioner for the offence under Section 409 of the Indian Penal Code and has rejected the application of the petitioner.
(3.) LEARNED counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, inasmuch, as in the facts of the case, no offence can be said to be made out against the petitioner, who being the partner of the firm had received the money. Learned counsel has submitted that the matter ought to have been referred for arbitration in terms of arbitration clause in the Deed of Partnership. Learned counsel for the State as also learned counsel for opposite party No.2, on the other hand, have submitted that in the facts, the offence is clearly made out against the petitioner and there is no illegality in the impugned order worth interference in the revisional jurisdiction.;