MAHESWAR BEHERA Vs. BIJAYA KUMAR MOHANTY

JUDGEMENT

(1.) IN this application under Section 482, Code of Criminal Procedure accused in I.C.C. No. 124 of 1993 of the Court of J.M.F.C., (Rural), Cuttack has challenged the order dated 27.9.1997. By the said order, learned Magistrate passed order framing charge for the offence under Section 420, I.P.C. and under Section 115(5) (a) and (15) of Orissa Co -operative Societies Act on the ground of existence of a prima facie case.

(2.) DURING the course of hearing, learned Counsel appearing for the Petitioner argued that no case of cheating is made out and at best a case of misappropriation could' be inferred against the Petitioner. But then for the aforesaid allegation of misappropriation, a civil dispute vide Dispute Case No. 148 of 1992 -93 is pending adjudication before the Assistant Registrar, Co -operative Societies, Cuttack Circle, Cuttack and, therefore, for the self -same allegations, two parallel proceedings; one in civil forum and the other in criminal forum is not permissible under law. Learned Counsel for the Petitioner further argued that prima facie the allegation is relating to misappropriation of some amount during the period of incumbency of the Petitioner from 1977 to September, 1990, while the Petitioner was the Secretary of Harianta Service Co -operative Societies Ltd., therefore in accordance with provision under Section 212, Code of Criminal Procedure, charge cannot be consolidated framed for the allegation of misappropriation/cheating for the entire period. He further stated that apart from that taking of cognizance of the offence being barred by limitation in accordance with Section 468, Code of Criminal Procedure learned J.M.F.C. should not have framed charge against the Petitioner in the impugned manner.

(3.) IT appears from the impugned order, that aforesaid contentions were not raised in the Court of J.M.F.C. at the stage of framing of charge. It is the settled position of law that framing of charge is no a hollow formality. At that stage accused should be given an opportunity to place his contentions and the Magistrate is required to consider its relevancy and the merit as well while passing appropriate order relating to charge. It is not appearing from the impugned order that Petitioner was heard in the matter while considering the question of framing of charge.