- (1.) THIS application has been filed for quashing the order dated 22.03.2005 passed in Cr. Revision No. 04 of 2005 by the Additional Sessions Judge - F.T. C. -II, Bokaro whereby and whereunder, he dismissed the criminal revision directed against the order dated 08.12.2004 passed by Judicial Magistrate, 1st Class, Bokaro in C.P. Case No. 270 of 2000.
(2.) IT appears that a complaint petition was filed by the opposite party no. 2 alleging therein that accused had borrowed a total sum of Rs. 5,000,00/ -(Five Lakhs ) from the complainant opposite party no. 2 on different dates. It is further alleged that on 05.05.2000 a cheque of Rs. 5,000,00/ - (Five Lakhs) was handed over to the complainant for refund of aforesaid borrowed amount. It is further alleged that the aforesaid cheque was presented in the Bank but the same was returned to the complainant with intimation that cheque in question has been dishonoured due to insufficient fund. It is further alleged that the accused was informed about bouncing of cheque. It is further stated that in August 2000, accused -petitioner advised the complainant for presenting cheque in the Bank for encashment, as he had sufficient amount in his account. Thus, as advised by the accused -petitioner, complainant again presented the said cheque in the Bank on 14.08.2000 for encashment, but, the same was again returned to the complainant with a note of insufficient fund. It is stated that thereafter on 21.08.2000 the complainant had issued a legal notice which was received by the accused -petitioner on 28.02.2000, but he did not pay the amount mentioned in the cheque and accordingly, the complainant went to police station for lodging First Information Report, but local police asked the complainant to file complaint petition. Thereafter present complaint has been filed. It appears that the case was transferred to the Court of Judicial Magistrate, 1st Class, Bokaro for inquiry. It then appears that after inquiry summons were issued to the petitioner -accused. Accordingly, he appeared in the court below. It further appears that thereafter witnesses were examined and documents were produced by the complainant as per the provisions contained in Section 244 of the Cr. P.C. Thereafter case was posted for hearing on the point of framing of charge. It then appears that on 01.12.2004 the accused -petitioner filed an application under Section 91 of the Cr. P. C. praying therein that original postal receipt from the concerned Post Office, original consignment notebook, from Good Luck Commercial Service may be called for, as the same was essential for hearing on the point of framing of charge. It then appears that learned Judicial Magistrate, Bokaro vide his order dated 08.12.2004 rejected the said petition. Against the aforesaid order accused -petitioner had filed a Criminal Revision which was dismissed by order dated 22.03.2005 passed by learned Additional Sessions Judge - F.T.C. -II, Bokaro on the ground that at the time of framing of charge it is not open for the petitioner - accused to produce any evidence in support of his defence. Learned Additional Sessions Judge, had also come to the conclusion that order passed by the Judicial Magistrate is interlocutory order, therefore, Revision application is not maintainable as per clause(2) of Section 397 of Cr. P.C. Against the aforesaid order present application under Section 482 of Cr. P.C. has been filed.
(3.) IT is an admitted position that in the present case cognizance was taken on the basis of complaint petition. Therefore, in the instant case procedure prescribed under Section 244 to 246(1) will be applicable for framing of charge. Sections 244,245 and 246(1) runs as follows : - "Section 244 - Evidence for prosecution -: (1) When, in any warrant -case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. Section -245 When accused shall be discharged. - (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. Section 246 Procedure where accused is not discharged - (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused". ;