(1.) The present petitioners along with others were arraigned as accused in connection with Malbazar Police Station Case No.118 of 1998 and after completion of investigation police submitted charge-sheet under sections 406/409/418/420/477A/ 120B/109 of the Indian Penal Code against them. When the petitioners moved the trial Court for their discharge, however the trial Court rejected their prayer for discharge and framed charge against them for the self-same offence for which they were charge-sheeted.

(2.) The order rejecting the prayer for discharge and the order of framing of charge are the subject matter of challenge in the instant criminal revision.

(3.) Mr. Sudipto Moitra, the learned counsel in support of this application urged the following points; (a) No prima/arte case of the alleged offences for which charge has been framed has been made out (b) There was neither any entrustment nor any dishonest misappropriation of property by the petitioners. (c) The dispute if any is civil In nature and arising out of a contract of excavation and at best amounts to a breach of contract. (d) There is an arbitration clause contained in the agreement pursuant to which the excavation works was undertaken. (e) Before filing of the FIR the complainant took recourse to the arbitration proceedings, however the award was in favour of the petitioners. (f) The subject matter of the criminal case as well as the arbitration proceedings are identical. (g) The FIR was lodged nearly one month after the complainant referred the dispute for arbitration. (h) The charge-sheet has been submitted two months after the award of arbitration was decreed.

(4.) Mr. Moitra in support of his submission relied on the following decisions; (i) Superintendent and Remembrancer of Legal Affairs. W.B. v. Mohan Singh and.Ors., reported in AIR 1975 SC 1002, (ii) Thelapalli Raghavaiah v. Station House Officer and Ors., reported in (2007) 2 C Cr LR (SC) 59, (iii) Anuran Rastogi and Ors. v. State of U.P. and Anr.. reported in (2007) 2 C Cr LR (SC) 64, (iv) Bal Kishan Das v. P.C. Nayar, reported in AIR 1991 SC 1531, (v) Misri Lal v. Tota Ram, reported in 1984 Cri. L.J. 1338, (vi) Commissioner of Income Tax, Mumbai v. Bhupen Champak Lal Dalai and Anr.. reported in JT 2001 (3) SC 271, (vii) S.M.S. Pharmaceuticals Ltd, v, Neeta Bhalla and Anr., reported In (2007) 4 SCC 70, (viii) Shri Abhash Chandra Dey v. Shri Durga Sah. reported In (1989) 1 Gauhati Law Reports 78.

(5.) On the other hand Mr. Swapan Kumar Mallick vehemently opposed and resisted this criminal revision and submitted earlier some of the accused persons against whom charge has now been framed based on the self-same charge-sheet moved a criminal revision being C.R.R. No. 1880 of 2005 before this Court invoking section 482 of the Code for quashing of the charge-sheet and this Honble Court after considering the matter on merits dismissed the said criminal revision holding that on the evidentiary material collected by the police during Investigation the alleged offences against the accused persons have been made out, He further submitted aggrieved by the said order a Special Leave Petition was moved before the Honble Supreme Court when the Honble Supreme Court rejected the said Special Leave Petition and gave liberty to the parties to raise all contentions at the time of framing charge. Thus, according to Mr. Mallick it is not open to the petitioners to raise the same question that on the charge-sheet materials no offence has been made out when this Honble High Court after meticulous examination of the charge-sheet materials found that on such materials offence has been made out and such findings of this Honble Court has been upheld the Apex Court. Mr. Mallick produced the Case Diary and submitted that police during investigation has collected sufficient materials which clearly reveals the involvement of the petitioners in the commission of alleged offences for which charge has been framed and as such th