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Shashi Bhushan Kumar vs The State Of Jharkhand on 15 January, 2019

Cr. M. P. No. 573 of 2018

Shashi Bhushan Kumar, aged about 51 yrs, S/o- late Mahendra Pd.,
R/o- Saguna More, PO-Danapur, PS-Danapur, District-Patna, Bihar
… … Petitioner
The State of Jharkhand … … Opposite Party


For the Petitioner : Mr. Mahesh Tewari, Advocate
For the State : APP


03/15.01.2019 The petitioner seeks to challenge the order taking
cognizance dated 27.07.2017 and order dated 08.09.2017 by which
his discharge petition filed under section 239 Cr.P.C. has been

2. Plea taken by the petitioner is that it was the case filed
under section 138 of the Negotiable Instruments Act, as a
counter-blast to which, the informant has instituted Jharia P.S. Case
No. 117 of 2017 to wreck-vengeance on him.

3. Mr. Mahesh Tewari, the learned counsel for the
petitioner to fortify the aforesaid plea raised on behalf of the
petitioner relies on the judgment in “State of Haryana and others vs.
Bhajan Lal and others” reported in 1992 Supp (1) SCC 335.

4. At the outset, it needs to be recorded that if during the
investigation materials constituting the offence have been collected,
mala-fide, if any, of the complainant/informant becomes secondary
[refer, “State of Bihar and Another vs. J.A.C. Saldanha and others”
reported in (1980) 1 SCC 554]. On the ground that the criminal case
vide Jharia P.S. Case No. 117 of 2017 has been lodged by the
informant with malafide intention, as a counter-blast to the case filed
by the petitioner for which cognizance of offence has been taken, the
order rejecting the discharge petition cannot be interfered with by
this Court. Once finding sufficient materials on record cognizance of
the offence has been taken by the court and the discharge petition
filed by the accused-petitioner has been dismissed holding that a
prima-facie case has been been made out against the accused, the
plea of mala-fide of the complainant must fail. At this stage, only
after the accused-petitioner demonstrates that no legally admissible
evidence constituting the offence under section 354 IPC is on
record, or that the order taking cognizance is without jurisdiction, in
exercise of powers under section 482 of the Code of Criminal
Procedure orders dated 27.07.2017 and 08.09.2017 cannot be
quashed. By now it is widely accepted that at the stage under section
190 Cr.P.C. and the framing of charge, all that the court concerned is
required to find out whether materials for constituting the offence as
alleged are, prima-facie, available in the record or not.

5. In view of the aforesaid facts and specific finding
recorded by the court in its orders dated 27.07.2017 and 08.09.2017,
no ground is made out for interference in the matter and accordingly,
Cr. M. P. No. 573 of 2018 is dismissed.

(Shree Chandrashekhar, J.)

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