JITENDRA VOHRA Vs. SUNIL SHARE

JUDGEMENT

(1.) BY this petition under Section 482 of the Code of Criminal Procedure {"Code" hereafter} the petitioner seeks indulgence of this Court to allow him an opportunity to put up evidence before charge in Criminal Case No.1319/02 of the Court of Judicial Magistrate, First Class, Indore which was at the relevant time chaired by Shri R.B.Yadav.

(2.) The petitioner submitted a private complaint before the learned Magistrate for offences punishable under Sections 406, 420, 120-B read with Section 34 of the Penal Code against the Respondents. When the case was at the evidence before charge stage after the complaint being registered for offence of Section 406 of the Penal Code and was fixed up for 04.02.2004 the learned Magistrate noted in the order-sheet that the complainant and his counsel expressed that the evidence pre-charge stood closed. Then on 06.11.2004 the learned Magistrate found that evidence pre-charge not having been put up at all there was no prima facie case made out for offence under Section 406 of the Penal Code against the Respondents, hence they were ordered to be discharged. That order of discharge was challenged before the Revisional Court. The Revisional Court dismissed the revision vide order dated 03.01.2005 passed in Criminal Revision No.819/04. Hence the present petition under Section 482 of the Code.

(3.) The learned counsel for the petitioner submitted that the order-sheet dated 04.02.2004 mentioned above does not contain a correct statement of fact and he also argued that the presence of Shri Arun Kumar Gupta as an Advocate of complainant therein is also against the fact because the complainant had never appointed Shri Arun Kumar Gupta as his Advocate. He, therefore, argued that there had been a mistake of fact which resulted into complete miscarriage of justice in a case relating to a serious offence like that of Section 406 of the Penal Code. I have perused the record of the learned Magistrate. It is not that soon after 04.02.2004 the case came up to 06.11.2004 where the discharge order was passed. In between there were number of dates wherein another Advocate Shri Jain appeared for and on behalf of the complainant. The mistake which has been pointed out today by the learned counsel for the petitioner before me appears not to have been brought to the notice of the learned Magistrate. Accordingly when there is a presumption under Section 114 (e) of the Evidence Act as to the regularity of judicial proceedings, in the circumstances that presumption does not stand rebutted. As such the present petition has no force and it is, therefore, dismissed.