ORDER :

1. Heard Mr. A.K. Sahani, learned counsel appearing on behalf of the petitioner.

2. Heard Mr. Suraj Prakash, learned counsel appearing on behalf of the opposite party No. 1-complainant.

3. Heard Ms. Priya Shrestha, learned counsel appearing on behalf of the opposite party-State.

4. This criminal revision is directed against the order dated 24.09.2013, passed by learned Judicial Magistrate, Dhanbad in C.P. Case No. 2747 of 2012, whereby the complaint petition filed by the petitioner has been dismissed under Section 203 of the Cr. P.C.

5. From the perusal of records of this case, it appears that at the time of filing of the case, only the certified copy of the complaint petition with solemn affirmation of the complainant as well as certified copy of the impugned order dated 24.09.2013 were filed and the deposition of two witnesses who were examined on behalf of the complainant were not filed. Accordingly, vide order dated 09.01.2018, the petitioner took time to bring the evidences of the enquiry witnesses on record and pursuant thereto a photocopy of the certified copy of the evidence of two enquiry witnesses were filed and their certified copies were also filed vide filing No. 1257 dated 16.08.2021 which are taken on record.

6. It further appears from the office note that the lower court records of the complaint case are missing and efforts are being made to find out the same. Considering the fact that the certified copy of the complaint petition, solemn affirmation of the complainant, list of documents filed before the learned court below as well as certified copy of the two witnesses examined under Section 202 and the certified copy of the order dated 24.09.2013 passed by the learned court below refusing to take cognizance of the offence and dismissing the complaint petition are on record, the case was argued by the learned counsel for the parties and order was reserved on 31.08.2021. The case was listed for pronouncement of judgment on 27.09.2021, but was adjourned to 04.10.2021 and is being accordingly pronounced today.

Arguments of the petitioner-complainant

7. Learned counsel for the petitioner while assailing the impugned order dated 24.09.2013 submitted that at the time of taking cognizance of the offence, learned court below has to only consider as to whether any prima-facie case is made out against the accused or not. The leaned court below has no jurisdiction to record any finding in absence of any evidence during trial to discard the version of the evidence collected in course of enquiry. The evidence at enquiry stage is only for the purposes of forming a prima-facie case and it cannot be construed to be evidence for conviction and is required to be scrutinized accordingly. Learned counsel has emphatically submitted that the learned court below erred in observing that the complainant failed to establish prima-facie case for the alleged offence against the accused and accordingly the impugned judgment is not sustainable in the eyes of law. During the course of argument, learned counsel for the petitioner-complainant has laid stress on the allegation made against the accused in connection with offence under Section 384 of the Indian Penal Code. He submits that the accused, who was the Branch Manager of bank had come to the house of the petitioner on 12.08.2012, when the two enquiry witnesses were present, and in their presence, the accused had asked for Rs. 50,000-Rs.60,000 additionally stating that the same will resolve all the problems of the complainant. However, the complainant did not trust the accused due to which the complainant has been subjected to fraud and misappropriation of money deposited by the complainant and the accused had also threatened the complainant for filing criminal cases. Learned counsel for the petitioner has also referred to the solemn affirmation of the complainant as well as the evid