BHANDARI DINESH KUMAR Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) Heard Mr. P.D. Agrawal, learned counsel appearing for the petitioner and Mr. Yogesh Modi, learned J. C. to A.A.G.

(2.) In this writ application, the petitioner has prayed for quashing of the entire criminal proceedings in connection with Mango P. S. Case No. 45 of 1992 instituted for the offences punishable under Sections 420, 468, 471 of the Indian Penal Code. A further prayer has been made for quashing the orders dated 02.09.2008 passed by the learned Judicial Magistrate, 1st Class, Jamshedpur by which the application preferred by the petitioner for discharge has been rejected as well the order dated 26.07.2011 passed by the learned Sessions Judge, Jamshedpur in Criminal Revision No. 233 of 2008 affirming the order passed by the learned Magistrate on 02.09.2008.

(3.) It has been submitted by the learned counsel for the petitioner that earlier also the petitioner has preferred criminal writ for quashing the entire criminal proceedings but the same was tied with several writ applications in which the issue concerned was whether a notification is required to be issued by the Commissioner of Commercial Taxes and whether the same can be said to be contravention of the provisions of sub-section (2a) of Sec. 31 of the Bihar Finance Act for not carrying the forms 28A and 28B. It has been submitted that although an order was passed by the Division Bench of this Court quashing the proceedings as well as the orders in terms of sub-section (2a) of sub-section 3 of Sec. 31 of the Act but no order was passed in the Criminal Writ preferred by the petitioner. It has been submitted that the order passed in Cr. W.J.C. No. 3018 of 1993 (R) and its analogous cases has categorically held that there is no necessity of having in possession form 28B while carrying the goods and this fact has not been appreciated at all by the learned courts below while considering the discharge application preferred by the petitioner. Further submission has been made that initially a First Information Report was directed to be lodged under Sec. 49 (f) of the Bihar Finance Act but in view of the embargo enunciated in sub-section 5 of Sec. 49 of the Bihar Finance Act in which the previous sanction of the Commissioner was required, First Information Report was instituted and the cognizance was subsequently taken under Sections 420, 468, 471 of the Indian Penal Code. It has further been submitted by the learned counsel for the petitioner that it is immaterial whether form 28B as was contended by the investigating agency is forged and fabricated in view of the fact that there was no necessity for having possession of form 28B in terms of the judgment of the Honourable Division Bench. Learned counsel, therefore, submits that since such consideration has not been made by the learned courts below, the entire criminal proceedings as against the petitioner deserves to be quashed and set aside. Learned counsel for the petitioner further submits that with respect to the fact that even if form B was found to be forged and fabricated cannot be said to come within the ambit of definition of cheating as referred to the judgment passed in the case of Shailendra Kumar Sinha Vs. The State of Bihar reported in 1991 (1) PLJR 423.