YOGENDRA SAH Vs. BRIJ NANDAN SAH

JUDGEMENT

(1.) THIS revision application has been directed against the judgment and order dated 1.12.1998 passed by Sri S.C. Srivastava, Judicial Magistrate, 1st Class, Pupari at Sitamarhi in G.R Case No. 601/88, whereby he acquitted the accused -persons of the charges levelled against them.

(2.) SOME of the facts is relevant for proper appreciation in this revision application are stated as hereunder. The complainant -petitioner filed a complaint in the Court of S.D.J.M., Pupari at Sitamarhi against opposite party Nos. 1, 2 and four others under Sections 467, 468, 420/120 -B of the Indian Penal Code on the allegation that opposite party No. 1 had agreed to sell 0.03 acre of land to the complainant for consideration of Rs. 12,000/ - out of which a sum of Rs. 3,100/ - had been paid to opposite party No. 1 as advance and a sum of Rs. 8,500/ - was paid at the time of execution of sale deed which was registered on 5.4.1988 and the remaining sum of Rs. 400/ - was to be paid at the time of giving the receipt of the sale deed. Subsequently, the complainant offered a sum of Rs. 400/ - to opposite party No. 1 and demanded the registration receipt but the opposite party No. 1 avoided to give the same on some pretext. The petitioner suspected something foul and obtained certified copy of he sale deed and found that the figure '8 ' occurring on the right side of 8,500/ - was penned through and figure '8 ' was inserted on the left of figure 400, thus showing the dues of Rs. 8,400/ -. It is, therefore, alleged that opposite party No. 2 made some interpolation at the end of the sale deed. The complaint was sent to the police station for investigation and final report was submitted by the police. But after considering the police report and the case diary, the Court took cognizance against opposite party No. 1 under Section 420 of the Indian Penal Code. Accordingly, the charge under Section 420 of the IPC was framed against opposite party No. 1 and the trial proceeded. In course of the trial PWs 1 and 2 were examined, cross -examined and discharged. Thereafter, a petition was filed to issue summons upon opposite party No. 2 as sufficient materials were available on record against him. The Court issued summons against opposite party No. 2 under Section 319 of the Cr PC and a fresh charge was framed against opposite party No. 2 under Section 467 of the IPC on 17.7.1990 and opposite party No. 1 was separately charged under Section 463 of the IPC on the same day. Both the accused denied the charges so framed against them and the trial proceeded. It appears that PW 2 was not produced for his cross -examination as required under Section 319(4) of the Cr PC. However, four witnesses were examined, cross -examined and discharged after the framing of fresh charge against opposite parties.

(3.) THE learned counsel appearing for the petitioner submitted that the trial Court has committed serious illegality by not considering the evidence of PW 2, namely, Feku Sahnor any reason has been assigned by the trial Court for discarding the evidence of other PWs. As such, it was submitted that the impugned order passed by the trial Court should be set aside and the matter should be remitted back to the Court below for passing a fresh order in accordance with law. The learned counsel appearing for the opposite parties, however, contended that the trial of opposite party No. 2 could not be separated and as such the trial Court was justified in ignoring the evidence of PW 2. It was also contended that after framing of the fresh charge the defence did not get opportunity to cross -examine PW 2 The submission of the learned counsel appearing for the opposite parties have got no merit in it in view of the admitted position that PW 2 had not been examined after framing of the fresh charge. However, the submissions advanced by the learned counsel for the petitioner are well founded, inasmuch, as I am of the view that even if the prosecution had not produced PW 2 for his cross -examination after framing of fresh charge against opposite party No. 2 after being summoned under Section 319 of the Cr PC, the learned trial Court should have considered the evidence of PWs 1 and 2 which was recorded before the stage of 319. of the Cr PC and it could not have totally discarded the evidence of PW 2 on he grounds as stated above.