The central legal point established is the requirement of legal evidence and the inadmissibility of a deceased witness's statement in criminal cases.

JUDGMENT - S.S. PARKAR, J.:---The petitioner who is an Advocate has filed the present petition for quashing of Criminal Case No. 2798/P of 1994 pending in the Court of 44th Metropolitan Magistrate, Andheri, Bombay for offences punishable under sections 420, 467, 468 and 471 read with section 114 of Indian Penal Code registered under C.R. No. 927 of 1986 by the D.N. Nagar Police Station.

2. The brief facts, leading to the filing of this petition for quashing the proceedings, arise in the following circumstances :

The State Bank of India, Jogeshwari (West), Bombay branch filed a complaint on 8-10-86 against one Kishore Vinayak Bidaye for the offence of forgery and using forged documents to induce the Bank to part with the cash amount of Rs. 5,50,000/-. The said Kishore Vinayak Bidaye is shown as accused No. 1 in the complaint. The name of the present petitioner was added subsequently on the basis of the investigation made by the police after recording statement of Chintaman Vishwanath Panshikar. As per the complaint accused No. 1 opened an account with the State Bank of India, Jogeshwari with the help of introduction by the Bank officer by name R.D. Punde. He had deposited three cheques, two of two lakhs each and one of five lakhs issued by following parties for deposit in fixed deposits for a period of 5 years.

(i) Railway Goods Clearing Forwarding Establishment Labour Board for Rs. 2 lakhs.

(ii) Nathdwara Temple Board for Rs. 2 lakhs.

(iii) Hyderabad Sindh National Collegiate Board for Rs. 5 lakhs.

Thereafter the accused Nos. 1 and 2 produced letters from the first two parties to grant over draft facilities to the accused No. 1. Accordingly accused No. 1 took loan of Rs. 3 lakhs in his own name against the first two F.D.Rs. It appears that the accused No. 1 had taken loan of Rs. 2,50,000/- against the F.D.R. of Rs. 5 lakhs issued to Hyderabad (Sind) National Collegitate Board. Thus he took total loan in the sum of Rs. 5,50,000/- against the above 3 Fixed Deposit receipts. Later on it was discovered by the Bank that accused Nos. 1 and 2 had submitted forged letters from the above parties to the Bank to obtain loans. Hence Bank filed F.I.R.

3. After filing of the F.I.R. the police made investigation. In the course of the investigation the police recorded the statement of Chintaman Vishwanath Panshikar, an employee of the Bank. The said witness has given his statement to the police on 9-6-86. His further statement was recovered by the police on 12-11-86. The said witness had not implicated the present petitioner in his earlier statement dated 9-10-86 by name. However, in his subsequent statement dated 12-11-1986 he has involved the present petitioner as one of the two persons who used to accompany accused No. 1 as his representative and produced forged documents in respect of Railway Goods Clearing Forwarding Establishment Labour Board and Nathdwara Temple Board and helped accused No. 1 to withdraw the loan amount from the Bank.

4. As the charge-sheet was not submitted for long time the petitioner applied for discharge on 7-1-1988. Subsequently charge-sheet came to be filed on 28-4-1988 against three accused. The petitioner thereafter filed discharge application under section 239 of Cri.P.C. which was rejected by the Magistrate observing in para 7 of the order as under :

“While going through the papers of investigation and on application of judicial mind I do find there is ground for presuming the commission of the offence by accused No. 3 since the statement of the witness Panshikar is sufficient for my adoption that there is prima facie evidence to frame charge against the accused No. 3. Hence the application of accused No. 3 for discharge is rejected.”

5. Thus the learned Magistrate has rejected the application for discharge of the accused only on the basis of the statement of witness Panshikar dated 12-11-86. The petitioner, therefore, has filed this present petition for quashing the above case pending against him on the ground o

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