NITAIPADA DAS Vs. SUDARSAN SARANGI

JUDGEMENT

(1.) Informant the Managing Trustee of Haridas Thakur Trust, Swargadwar, Puri is the petitioner in this application for revision against order of the Trial Court discharging accused in exercise of power under Section 239 Cr. P.C.

(2.) On 24-8-1984, petitioner filed an application before officer-in-charge, Sea Beach Police Station Puri with copies to Superintendent of Police, Puri and Director General of Police, Orissa alleging that to facilitate availability of Prasad (food offered to deity) to visitors and Sadhus, the trust purchases rice and paddy in bulk quantities. Accused who was a regular visitor offered to arrange paddy being supplied from Berhampur. Accused is a Sanskrit Pandit in a College at Puri. He made petitioner to believe that his brother-in-law is a big rice dealer and he can supply fine rice at a cheaper cost. Since accused was a frequent visitor to the math and was a Sanskrit Pandit taking prasad very often, petitioner relied on his version and paid a sum of Rs.4,500/- as advance during January, 1983. Accused did not bring paddy and stopped visiting the math. On 24-10-1983, petitioner called accused to Math and when petitioner threatened to start a police case against him, accused wrote a letter to one Kishore Padhi of Berhampur to supply paddy and requested petitioner to collect the paddy from Kishore. Being sure that petitioner would send his man to Berhampur, accused came back after a few hours to the Math and handed over a telegram requesting to defer the programme of sending a man to collect the rice. Not believing the accused. petitioner sent Kshetramohan Mohanty of the Math to Berhampur. On return from Berhampur, Sri Mohanty informed that Kishore Padhi is not brother-in-law of the accused but is known to him. Accused did not contact him for supply of rice. Sri Padhi denied to have received any amount from accused as well as knowledge of any telegram. As accused took advance of Rs.4,500/- inducing to supply fine rice at cheap rate from Berhampur as his brother-in-law is a big rice dealer and to avoid the situation produced a telegram which was not sent by Kishore Padhi, petitioner prayed for an investigation into the matter. Application has several endorsements beginning from 2-9-1984. Last endorcement is on 23-1-1986. However, receiving an order from Superintendent of Police, Puri the application was treated as First Information Report and investigation was initiateded on 23-1-1986. First Information Report was sent to court on 24-1-1986. Investigating Officer visited the Math on 23-1-1986 at 1 p.m. and found informant absent having gone to Calcutta. Other inmates were not able to speak anything about the incident. He closed the diary for the day till 15-2-1986 when he was transferred. New Investigating Officer opened the case diary on 17-4-1986. On 23-4-1986 he recorded statement of informant and others. At last on 18-9-1986 accused was arrested and was forwarded in custody to court. On 19-9-1986 charge sheet was submitted. On 1-10-1986 cognizance was taken. When the case was fixed for consideration to frame charge, accused submitted to discharge him. On 31-1-1987, learned counsel for accused submitted that there is no material to proceed against the accused. In the impugned order, learned Sub-divisional Judicial Magistrate has discharged the accused on the finding material portion of which reads as follows:

(3.) No right of appeal is provided against an order in exercise of power u/s. 239, Cr. P.C. Accordingly, in exercise of power of revision, re-appreciation of fact is not possible unless appreciation of fact by the Trial Court is unreasonable or material facts have not been considered which would completely destroy the finding of fact. Keeping this in mind, it is to be examined whether impugned order can be sustained.