Tahira Khatoon and Others vs State of Uttarakhand and Others

Dharam Veer, J.—For the reasons stated, delay condonation application is allowed. Delay in filing the restoration application is allowed.

Restoration application is also allowed in view of the reasons assigned therein. C82 petition is restored to its original number.

Also heard on the merits of the petition.

This criminal application, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed for quashing the charge-sheet dated 1.1.2008 filed in Criminal Case No. 565 of 2008 pending before J.M. Almora against the petitioners u/s 420/467/468/406/120B IPC.

Heard learned Counsel for the parties and perused the material on record.

In brief, the facts of the case are that on 24.4.2007, respondent No. 4-Shabbir Ahmad lodged an FIR stating therein that one Noor Jahan is an old lady and is residing at Mohalla Sadat, Kasba and PS Shivhara, Mohalla Maryan, Distt. Bijnor (UP) and is unable to move or walk. She is also an owner of the property in dispute at Almora. It was stated that the accused-Shakil Ahmad, in connivance with the other accused/petitioners Tahira Khatoon, Mohd. Shahnawaz and Ayaz Ahmad, by a criminal conspiracy, grabbed the house belonging to Noor Jahan. Further, the petitioner No. 2 got the registry of the aforesaid property by impersonating the petitioner No. 1-Tahira Khatoon as Noor Jahan and the petitioners 3 and 4 also assisted in the aforesaid criminal conspiracy. It was also stated that the complainant is the sole heir of Noor Jahan after her death. On 11.12.06 when the complainant enquired about the non-payment of rent since last several months from the petitioner No. 2, he became furious and uttered filthy abuses and said that he has got the said hosue purchased from Noorjahan in February 2005. On hearing this, when the complainant enquired about the same from the Registrar Office, he came to know about the cheating committed with Noor Jahan. It was also stated that the accused, with a common intention, got a false sale deed prepared and also gave false affidavit in the office of Tehsildar Almora and got their names mutated. With the same averments, the FIR was lodged. Thereafter the matter was investigated and after completing the investigation, the I.O. filed the charge sheet against the petitioners, on the basis of which learned CJM Almora took cognizance and summoned the petitioners u/s 467/468/420/406/120B vide order dated 10.6.08. Hence this petition.

A counter affidavit has also been filed thereby denying the averments made in the petition.

Learned Counsel for the petitioners argued that no offence is made out against them and the court below has erred while taking cognizance against them. I do not find any force in this argument for the reason that on a perusal of the FIR filed by the complainant, the statement of the witnesses recorded u/s 161 Cr.P.C., who in their statements have amply corroborated the prosecution story, the offences punishable u/s 420/467/468/406/120B IPC, are prima facie made out against the petitioners on the basis of the above-said discussion and the trial court has rightly took the cognizance and accordingly, rightly summoned the petitioners to face trial.

Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction u/s 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court.

For the reasons recorded above, there is no force in the application. The application C482 is devoid of merit and is hereby dismissed. Interim order dated 24.6.2008 is vacated.