JUDGMENT :

Present Application under section 482 Cr.P.C has been preferred assailing the charge sheet dated 21.12.2018 filed in case crime No 346 of 2018 under section 381 IPC, PS Talbehat, District Lalitpur in the court of Chief Judicial Magistrate and also the order of cognizance dated 1.3.2019, whereby applicant has been summoned.

2. Heard Shri B.N.Singh, learned counsel for the Applicant, Shri Ranjeet Kumar, learned counsel for the Opp. Party No 2 and the Government advocate for Opp. Party No 1 and perused the record. The Application is decided with the consent of Advocates appearing on behalf of the parties finally at the stage of admission itself.

3. To go over the facts briefly, Smt Neelam, Opp Party No 2 lodged a First Information Report registered at Case Crime No 346 of 2018 on 31.8.2018 at Police Station Talbehat, Distt Lalitpur, the contents of which were that she had opened a shop in the name and style “Kushwaha Bore Wales” at Laitpur for boring machine. Applicant Avadesh and Dinesh were employed to look after the shop and machine. On 29.8.2018 when the complainant (Opp Party No 2) came to her office, boring machine was found missing. After assiduous efforts, it was revealed that these persons had stolen the machines during night.

4. During investigation, statements of complainant (Opp Party No 2) Smt Neelam, Ratan Singh (witness), Pappu Rekhwaar (witness), Dashi Kushwaha (witness), Veer Singh (Witness) and Toran Singh (witness) were recorded.

5. During investigation, the applicant and Dinesh had approached this Court by way of filing Criminal Misc Writ Petition No 27265 of 2018 for quashing of First Information report. The co-ordinate Bench of this Court disposed of the said writ petition with the direction that the petitioner therein shall not be arrested till the submission of the Police report under section 173 (2) Cr.P.C.

6. The Investigating officer after conducting investigation submitted impugned charge sheet only against the applicant herein and not against the Dinesh who was also named in the First Information Report under section 381 IPC on 21.12.2008. Later-on, learned Chief Judicial Magistrate, Laitpur took cognizance of the offence and summoned the applicant under order dated 1.3.2019 which is also impugned in the present Application.

7. Learned counsel appearing on behalf of the Applicant forcefully argued that-

(I) On the basis of First Information report, and statements recorded during investigation, no offence , even prima facie, is made out against the applicant.

(II) No recovery of the alleged stolen boring machine has been made out.

(III) Applicant is brother-in-law (Jeeja) of the husband of the Opp Party no 2 and as there were some dispute amongst them and after death of husband of the Opp Party No 2, the applicant has been falsely implicated and nominated as accused in the present case.

(IV) The Opp Party no 2 in her statement recorded during investigation has improved upon her case and added new facts such as, applicant and Dinesh were employed at shop during the life time of husband of Opp Party and after his death, boring machines were given to applicant and Dinesh on rent of Rs 50000/-per month and about a sum of Rs 75000/-was also paid to Opp Party no 2. On 29.8.2018 when she went to her shop neither the boring machine nor these persons were traceable. Accordingly the learned counsel for the applicant submitted that such improvements shows that the entire story is false. If the version of the Opp party No 2 is considered to be true, then it would be a case of contract which is purely a civil dispute.

(V) The other witnesses whose statements were recorded during investigation, allegedly stated that the applicant was carrying boring machine and going towards Jhansi on 29.8.2018. However, they denied involvement of Dinesh. In this regard, the learned counsel for the applicant submitted that these witnesses were wholly unreliable and are making false statements.

(VI) The learned counsel for the Applican