JUDGMENT

A. K. PARICHHA, J. — This is an application under Section 482, Cr.P.C. for quashing the charge framed against the petitioner in S.P.E. No. 1 of 1998 of the Court of the learned Additional Chief Judicial Magistrate-cum-Special Judge (Vig.), Bhubaneswar.

2. The petitioner was charge-sheeted under Section 120-B/420, IPC in SPE No. 1 of 1998 in the Court of learned Addition¬al Chief Judicial Magistrate-cum-Special Judge (Vig.), Bhubanes¬war. After entering appearance in that case, the petitioner filed an application under Section 239, Cr.P.C. for his discharge. Learned Addl. Special Judge (CBI), Bhubaneswar, by order dated 2.5.2003 rejected the said prayer of the petitioner and framed charge under Section 120-B/420, I.P.C. Aggrieved, the petitioner has filed the present application to quash the said order dated 2.5.2003.

3. Mr. D. Panda, learned counsel appearing on behalf of the petitioner submits that the materials produced by the prose¬cution do not constitute any case under Sections 120-B/420, IPC and therefore, rejection of the prayer for discharge of the petitioner was unjust and illegal. It is submitted that the financial and administrative power of the concerned company was entirely vested with the General Manager and the petitioner was no way concerned with the administrative and financial aspect of the company and hence, there was no occasion for him to commit the offences in respect of the funds of the company. It is also submitted that the concerned company simply floated advertisement for recruitment of technical hands and there was no guarantee in the advertisement that all the candidates applying for the job would be appointed. Therefore, non-appointment of the informant and some other candidates can never amount to offences under Sections 120-B/420, IPC. Learned counsel for the petitioner further argued that the petitioner and the concerned company undertook all necessary steps for processing the applications of the candidates and even completed the medical examination etc. but the candidates could not be appointed and sent abroad because visa was not granted to them and since grant of visa is within the power of the petitioner or the company, they cannot be held liable for the offences of cheating or criminal conspiracy. The sum and substance of the argument offered by Mr. Panda is that the facts, materials and circumstances available in the case diary in no way constitute offences under Sections 120-B/420, IPC and therefore, the impugned order is legally unsustainable. In support of the contentions, he placed reliance on the cases of State (Delhi Administration) v. V.C.Shukla and another (AIR 1980 SC 1382), Union of India v. Prafulla Kumar Samal and another (AIR 1979 SC 366); Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra (AIR 1972 SC 545); Dileswar Balu Kurane v. State of Maharashtra (2002) 22 OCR 295.

4. Mr. S. K. Padhi, learned Sr. Standing Counsel (CBI), on the other hand contended that the materials available in the case diary reveal a strong prima facie case against the accused-petitioner and so, the impugned order rejecting the prayer for discharge of the petitioner is fully justified. In support of his contention, Mr. Padhi placed the statements of the witnesses, namely, Partha Sarathi Barik, Gouri Sankar Sahu and Sahabaz Khan and the documents available in the case diary and also relied on the case of Suresh v. State of Maharashtra, (2001) 3 SCC 703.

Section 239, Cr.P.C. contemplates the situation when accused shall be discharged and Sec. 240, Cr.P.C. speaks about the situation in which charge can be framed against an accused. The Sections read thus :

“239. When accused shall be discharged - If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the char