The main legal point established in the judgment is that the continuation of a criminal proceeding requires prima facie evidence to support the charges, and the court should prevent the abuse of the process of the court.

JUDGMENT :

Subhendu Samanta, J.

1. This is an application u/s 401 read with Section 482 of the Code of Criminal Procedure preferred against an order dated 05.04.2017 passed by the Learned Chief Judicial Magistrate 6th Court, Sealdah GR Case No. 2002 of 2009 arising out of Phoolbagan, Police Station Case No. 161 of 2009 dated 19.06.2009 u/s 120B/467/420 of the IPC thereby rejecting the petitioner’s prayer for discharge.

2. The brief fact of the case is that the present OP No. 2 had lodged a complaint with the Phoolbagan PS on 19.06.2009 alleging inter alia for commission of offence by the petitioners and one another punishable u/s 467/468/471/120B/420 of the IPC. It is alleged in the petition of complaint that the father of the OP No. 2 namely Late Manaj Kumar Banerjee was a lessee in respect of the property being CIT Scheme (VI)-M plot No. 99 for 99 + 99 years but due to major cerebral attack in May, 2000 the right side of the father of the OP 2 got paralysed. Subsequently, he died on 29.09.2003.

3. It is further stated in the petition of complaint that Late Manoj Banerjee used to reside stay at 48B, Pike Para Row with the family of his brother, although, OP 2 used to stay separately from her father but she used to visit him regularly. However due to torture inflicted upon her by the family member of uncle, the OP 2 was forced to reside elsewhere. It has been further alleged that Late Manoj Banerjee has several movable and immovable property.

4. Subsequently, the OP 2 came to know that the children of her uncle are trying to grab the said property from her father. Accordingly, she initiated a criminal proceeding against them for which Chitpur, PS Case No. 14 of 2004 was registered. Subsequently after completion of investigation, charge sheet was submitted against the said persons and the said case is still pending before the Learned Magistrate (GR Case No. 1902 of 2004).

5. During the course of said criminal proceeding the OP 2 came to know that the aforesaid property of her father has been transferred in the name of the present petitioner.

6. It has further alleged that the said property was transferred for a consideration of Rs. 10,00,000/-though the property worth much more than that. Although the said consideration amount was paid through cheques and demand drafts but the whereabouts of two out of three cheques and demand drafts could not traced out. The specific allegation in the petition of complaint is that, father of OP 2 could not sold the said property at the relevant property as he was seriously ill and the petitioner managed to procured the property transferred in their name though it is a property of the present OP 2.

7. On the basis of the said petition of complaint the police has conducted investigation and on completion of investigation has submitted a charge sheet No. 142 of 2012 dated 30.05.2012 u/s 120B/467 and 420 of IPC against the present petitioners and one Parthsarathi Banerjee.

8. The present petitioner has appeared before the Learned Magistrate got an order of bail, and submitted a prayer for discharge u/s 239 Cr.P.C.. The Learned Magistrate has heard the petition of discharge and passed the impugned order dated 19.06.2017 thereby rejecting the prayer for discharge of the present petitioner.

9. Hence this instant revision for quashing.

10. Learned Advocate for the petitioner submits that the Learned Magistrate has committed an error in law and failed to appreciate that to bring home the charge u/s 467 IPC it must be proved that the document which purports to be valuable security or Will, has been forged. In the instant case the investigating agency has neither seized the deed in question or forward it before the Government examine of Question Document (GEQD) for verification of the same relating to the allegation of forgery, nor the said document has been proposed to be exhibited by the investigating agency for providing the charge against the present petitioner u/s 467 of IPC.

11. Mr. Milan Mukherjee Learned Adv