Ram Rishi Pathak vs State Of Uttarakhand & Another

Pankaj Purohit, J

Heard learned counsel for the parties.

By means of this C528 application, applicant has put to challenge the summoning order dated 20.11.2015 as well as the entire proceedings of

Criminal Case no.2448 of 2015 (New No.655 of 2015), State vs. ShaharBano & others, pending in the court of learned Judicial Magistrate, Nainital,

under Sections 420, 467, 468, 471 & 120B IPC.

The case of the prosecution as unfolded from the first information are that under a criminal conspiracy, the accused Dalip Nijhawan in collusion

with other co-accused persons falsely represented himself as power of attorney holder of one Chandra Vijay Singh and created a forged deed dated

29.10.2009 and fraudulently sold the land of respondent no.2. The sale deed was prepared fraudulently without any right. Only the revenue stamp duty

was paid and no other amount was paid. It is further stated in the FIR that the fraud was committed with the intention of usurping the land of

respondent no.2 and caused him financial and mental harm.

It is contended by learned counsel for the applicant that offences are not made out against the applicant in view of the judgment laid down by the

Honb’le Apex Court in the case of Mohammed Ibrahim & others vs. State of Bihar & another; reported in (2009) 8 SCC 751 because in the first

information report the allegations are that one sale deed was executed by the power of attorney one Chandra Vijay Singh in favour of applicant. He

further submits that the Hon’ble Apex Court in the aforesaid judgment has come to this conclusion categorically that if the sale deed has been

executed under the premise that the property belongs to executant, in that situation, no forgery is made out and, accordingly, the offence under Section

420 IPC is also not made out in view of the aforesaid judgment and in that case, the entire proceedings of the criminal case had been quashed.

It is further submitted by learned counsel for the applicant that it is the duty of the informant to prove his title before the court of law. He also

submits that the matter regarding the same property is sub-judice before the civil court.

Per contra, respondent no.2 present in-person submits that the trial is at the verge of conclusion and the case is fixed for recording of the statement

of accused under Section 313 Cr.P.C. and the warrant has been issued against the applicant, but instead of appearing before the trial court to record

his statement under Section 313 Cr.P.C., applicant is filing the present C528 application before this Court.

I have heard learned counsel for the parties and carefully perused the entire documents available on record, this Court is of the view that when the

trial is at the verge of conclusion and the only statement of the accused is required to be made under Section 313 Cr.P.C., this Court does not find it fit

to interfere with the matter. Accordingly, the present C528 application is dismissed in-limine.