Bhaskar Kabdal vs State Of Uttarakhand And Another

Ravindra Maithani, J

The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') has been filed against the order dated 30.03.2013, passed in criminal case no. 658 of 2013, State vs. Manoj Kumar and 5 others (these five others are referred to as "the co-accused"), by the Court of Chief Judicial Magistrate, Nainital, District -Nainital (this case shall hereinafter referred to as 'the case'). By the impugned Orders, the petitioner has been summoned to answer the accusation under Section 420,467,468,504,506 and 120-B IPC.

The facts, briefly stated are that the respondent no. 2 Kanti Kumar wanted to purchase some land. He met the co-accused, who assured him to get the land available. The co-accused, in fact, had shown certain land to the respondent no.2. The respondent no. 2 agreed to purchase the land and paid Rs. one lakh in advance on 19th November, 2011. On 23 December, 2011, one of the co-accused Harish Chandra, in his purported capacity of the power of attorney holder, executed a sale-deed in favour of respondent no.2, but it could not be finalized as the said Harish Chandra did not have an identity proof at that time. Subsequently, the respondent no.2 came to know that, in fact, the man who executed the sale-deed in the name of Harish Chandra was not Harish Chandra instead he was Girish Chandra Pandey. The respondent no.2 realized that he had been cheated. A report to this incident was lodged on 12 July, 2012 against co-accused Manoj Kumar, Rajendra Kumar, Mustak Ali Ishtiyak and Girish Chandra Pandey. A case under Sections 420, 467, 468, 504, 506 and 120-B IPC was lodged. After the investigation, in this case charge-sheet was submitted against the petitioner as well as the above mentioned co-accused. On 30th March, 2013, cognizance was taken and proceedings of the case was instituted. It is these proceedings which are questioned.

Learned counsel for the petitioner would submit that no case has been made out against the petitioner; four of the co-accused persons, who allegedly cheated respondent no.2 Kanti Kumar have already been acquitted after full trial in criminal case No. 658 of 2013, State vs. Manoj Kumar and others; and one of the co-accused Girish Chandra Pandey, according to learned counsel for the petitioner, has also been acquitted. Copy of the judgment dated 14.08.2019 passed in Criminal Case No. 658 of 2013, passed by the Chief Judicial Magistrate, Nainital has been placed before the Court.

Learned counsel for the State would submit that respondent no. 2 in his statement given to the Investigating Officer has confirmed that the power of attorney was given by the petitioner to the co-accused; other witnesses have also told it to the Investigating Officer that the petitioner was involved in this transaction.

According to the FIR, five co-accused, namely, Manoj Kumar, Rajendra Kumar, Mustak, Ishtiyak Ali and Girish Chandra Pandey had cheated the respondent no.2. Co-accused Girish Cahndra Pandey impersonated Harish Chandra and executed the sale-deed. In his statement given to the Investigating Officer, Respondent no. 2 Kanti Kumar has stated that the person, who had executed the power of attorney had died on 7th May, 2012 and the power of attorney was given by the petitioner to the co-accused. Other witnesses namely, Navin Chandra Lweshali, Hem Chandra Lweshali and Nand Kishore. Lweshali told it to the Investigating Officer that they had executed a power of attorney in favour of their brother Harish Chandra; in that power of attorney petitioner was a witness and he is involved in this transaction. Witnesses Navin Chandra Lweshali and Nand Kishore Lweshali told it to the Investigating Officer that the petitioner took the power of attorney from the petition writer Dinesh Chandra Belwal. The petition writer Dinesh Chandra Belwal was also a witnesses of the power of attorney.

Under the proceedings of the Code meticulous examination of the case; probative or evidentiary value of the evidence; chances of conviction; reliability of the witnesses may not be tested. The factual aspects are to be left for trial. General principle is that the trial should not be stopped at the threshold, but, then to the extent of prima facie case, the matter can definitely be looked into.

The Court requested the State counsel on 09.08.2019 to file the following on the next date of listing:

(i) Statement of the person, from whom, the petitioner allegedly took the power of attorney and handed over it to the co-accused.

(ii) Alleged power of attorney alongwith the source from where, it is collected by the Investigating Officer.

But, these documents have not been filed. The statement of Dinesh Chandra Kabadwal, petition writer and the power of attorney which was allegedly taken by the petitioner and handed over to someone is not on record. It appears that the State is reluctant to file these documents.

Learned counsel for the State referred to the statements of Dinesh Chandra Belwal, petition writer recorded in the case diary and fairly concedes that Dinesh Chandra Belwal, the petition writer, did not tell it to the investigation officer that the power of attorney was ever taken by the petitioner. Petitioner never interacted with the respondent no.2 Kanti Kumar.

Navin Chandra Lweshali and Nand Kishore Lweshali told it to the Investigating Officer that it is the petitioner, who took the power of attorney from Dinesh Chandra Belwal, the petition writer. Dinesh Chandra Belwal, the petition writer was also a witness in the power of attorney but he did not tell it to the Investigating Officer that power of attorney was ever taken by the petitioner. Who told it to Navin Chandra Lweshali and Nand Kishore Lweshali that the petitioner gave power of attorney to the co-accused? Who had the power of attorney? Dinesh Chandra Belwal, the petition writer has not said that the petitioner took power of attorney from him. In fact, there is no evidence which may connect the petitioner with the case. No prima facie case is made out against the petitioner. This Court is of the view that continuance of the proceedings against the petitioner would be nothing but abuse of the process of law. Therefore, the proceedings of the case due to be quashed and the petition should be allowed.

The petition is allowed. Impugned order dated 30.03.2011 is set aside and proceedings of the case is quashed qua the petitioner.

Let a copy of this order be transmitted to the court below for compliance.