Amarnath Ahuja vs State of Uttarakhand and Another

Hon''ble Servesh Kumar Gupta, J.—By way of this petition, the prayer has been made to set aside the cognizance order dated 2.1.2008, passed by the Special Judicial Magistrate, Dehradun in Criminal Case No. 1/2008, State v. Mohd. Mohsin Akhtar & Amarnath Ahuja. The said cognizance order was passed on the chargesheet dated 18.12.2007 submitted by the Investigation Officer in Crime No. 49/2007 pertaining to Police Station Clemntown, Dehradun. Prayer has also been made to quash the entire proceedings of the said criminal case.

Having heard learned Counsel for the parties, the facts, qua controversy, in brief, are that Khasra No. 149/1 relating to Khata No. 791, situated at village Bharuwala Grant, Pargana Kendriyadoon, District Dehradun, is big area of land measuring 1.6920 hectares, and there are so many persons, who own their different shares in the said land. Out of these persons, two are Smt. Khusnuda Begum and Mr. Mohsin Akhtar, who are prominently in the picture. On 6.12.1990, Smt. Khusnuda Begum sold her share of land to one Puneet, who in turn sold the same to Sumit Simon. The name of Sumit Simon was mutated in the revenue records as has been shown in the copy of Khatauni annexed as Annexure No. 2 with the counter affidavit. Mr. Sumit Simon is an N.R.I. and he resides in the United States. Hence, he executed a Power of Attorney in the name of Amit Mohan Diamond, complainant/private respondent no. 2 to deal in the land owned by him.

Other person in the picture is Mohsin Akhtar, who sold his entire share of land measuring 0.20 acre or 0.800 hectare in the said Khasra No. 149/1 to Smt. Sushila Malhotra on 20.7.1999, which was the basis of mutation made in her name on 26.8.1999. It is alleged that Mohsin Akhtar sold the same land to one Smt. Kusumlata Sharma vide registered sale deed on 2.1.2003 to the applicant-petitioner Amarnath Ahuja.

FIR was lodged by private respondent no. 2 Amit Mohan Diamond on 11.8.2007 invoking the power of the Magistrate u/s 156(2) CrPC. The matter was investigated and after completion of the investigation, chargesheet was submitted against Amarnath Ahuja and Mohsin Akhtar for the offences punishable u/s 420, 467, 468, 471, 120-B IPC. The Investigation Officer also mentioned that Smt. Kusumlata was absconding and, therefore, investigation was continuing against her. Upon submission of the chargesheet, the learned Magistrate passed the impugned order of cognizance, whereagainst this petition has been filed by Amarnath Ahuja.

Prior to lodging of the aforementioned FIR, an enquiry regarding the land, in question, was conducted by the Police Station Clemntown, Dehradun on the application of Sumit David Simon, upon which it was found that Khasra No. 149/1 is a very big khasra and many houses belonging to different people are there on the spot. On the same khasra, there are three plots occupied by Colonel Ghai, Amarnath Ahuja and Smt. Bairat respectively. While the construction of the house on the plot of Smt. Bairat was complete, but Amarnath Ahuja constructed only one room and the boundary wall on the plot occupied by him.

After investigation, the police found that though Mohsin Akhtar did not have any land in the said khasra after 26.8.1999 (the date of mutation in the name of Smt. Sushila Malhotra), yet, with a criminal conspiracy, in order to gain illicit benefit, he sold the land to Kusumlata, who in turn sold the same to Amarnath Ahuja, while the said land, which once was being owned by Khusnuda Begum, was already sold to Puneet and thereafter the same land came in the name of Sumit Simon. So, this way, after the investigation, police was of the view that Amarnath Ahuja and Smt. Kusumlata were together entangled in the criminal conspiracy, and Mr. Ahuja, knowing fully well the real facts about the land, in question, now he does not want to leave his possession of the same.

Learned Counsel for the complainant/respondent has relied upon a precedent of the Hon?ble Apex Court rendered in the case of Mahesh Chaudhary v. State of Rajasthan & Another, reported in (2009) 2 SCC (Cri) 332, wherein it has been observed that the powers u/s 482 CrPC are to be exercised to prevent abuse of process of Court or to secure ends of justice. Court can quash the chargesheet if allegations in the FIR or complaint petition do not disclose the commission of offence even if on face value they are taken to be correct in their entirety. While doing so, High Court is not to embark upon appreciation of evidence but to consider only the materials available on record as a whole though the High Court is required to consider as to whether the allegations made in the FIR or the complaint petition fulfill the ingredients of the offences alleged against the accused. Hon?ble Apex Court further observed that dispute being primarily of civil nature is not by itself a ground to quash the criminal proceedings because in cases of forgery and fraud there would always be some element of civil nature.

Having heard learned Counsel for the parties and on going through the materials on record, it would not be appropriate for this Court to enter very scrupulously in the entire facts of the case. This has to be analyzed and adjudicated thereafter by the trial court. In the opinion of this Court, prima facie, there appears to be enough ground to prosecution Amarnath Ahuja as well as the other accused Mohsin Akhtar and, therefore, there is no reason for this Court to exercise its power u/s 482 CrPC.

All told, this petition is meritless and is liable to be dismissed. Petition is dismissed accordingly. Stay order dated 26.2.2008 is hereby vacated.

Registry is directed to inform the court concerned accordingly.