Kamal Singh Rana vs State Of Uttarakhand & Another

R.C. Khulbe, J

In this application, preferred under Section 482 of the Code of Criminal Procedure, 1973, the applicant has challenged the entire proceedings of Criminal Case No.19 of 2019, State v. Kamal S. Rana & others, pending before the Court of Judicial Magistrate, Narendra Nagar, Tehri Garhwal.

The factual matrix of the case is that Sri Ram Dayal (father of respondent no.2) met with the applicant on 10.12.2013. The applicant assured him that he is the owner of land Khatauni Khata No.69 Khasra Nos.46 and 47 Min. Accordingly, the agreement was executed between the parties on 10.12.2013 for purchasing the said land. As such, a sum of Rs.12.00 lakh was given by the father of respondent no.2 to the applicant. Three sale deeds were executed in favour of respondent no.2 Satish Kumar, Sunil Kumar (brother of respondent no.2) and one Ummed Singh, however, they could not get the possession. Thereafter, those purchasers then met with the applicant who became ready to buyback the property. Accordingly, the agreement was executed on 21.11.2014 amongst the applicant and those three purchasers.

Copy of the said agreement dated 21.11.2014 is on record filed by respondent no.2. On the basis of said agreement, three cheques issued in favour of the respondent no.2 by the applicant were bounced.

It is argued by learned Counsel for the applicant that the FIR was lodged after five years; the respondent had also filed a complaint u/s 138 of the N.I. Act which was ultimately dismissed.

Per contra, learned Counsel for respondent no.2 argued that although, the complaint has been dismissed by the Trial Court but the appeal there-against is pending before the High Court of Punjab & Haryana at Chandigarh.

It is settled position in law that at the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence to find out whether a prima facie case is made out for summoning the accused persons.

Their Lordships of the Hon'ble Supreme Court in the case of State of Haryana and others v. Bhajan Lal & others, reported in 1992 Supp (1) SCC 335, have considered, in detail, the provisions of section 482 and the power of the High Court to quash criminal proceedings or FIR. The Hon'ble Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint: -

"Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or, where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

Their Lordships of the Hon'ble Supreme Court in the case of Sonu Gupta v. Deepak Gupta and others, reported in (2015) 3 SCC 424, have held that prima facie satisfaction of the Magistrate concerned is sufficient for summoning the accused. The relevant paragraphs of said judgment are excerpted here-in-below:

"7. Considering the stage at which the criminal complaint is pending and the nature of proposed order, this Court would not like to express any definite opinion on the merits of the allegations made in the complaint petition or upon the defence taken by the accuse persons before the courts below or in this Court lest it prejudices one or the other party in future.

Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not."

From a perusal of the record, it is clear that the applicant intentionally deceived the respondent no.2 by executing two agreements dated 10.12.2013 and 21.11.2014. The applicant not only executed the agreement but also issued three cheques favouring the respondent no.2. On a perusal of the evidence collected during investigation, there is sufficient evidence available on record to summon the applicant under Sections 420, 120-B, 504 and 506 IPC.

Since, a prima facie case is made out against the applicant, the learned Magistrate after perusal of the complaint and the material placed before him, has rightly taken cognizance and summoned the applicant to face the trial in respect of the offence punishable under Sections 420, 120-B, 504 and 506 IPC. I do not find any illegality, perversity or jurisdiction error in the order under challenge, and as such, the same needs no interference at this stage.

In these circumstances, the present application filed u/s 482 Cr.P.C. is liable to be dismissed and the same is, accordingly, dismissed as such. Interim order dated 20.3.2019 is vacated.

Inform the court below to proceed ahead with the trial.