RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL (1) CRIMINAL APPLICATION NO.365 OF 2005 (U/s 482 Of Cr.P.C.) Rajnish Kumar …………Applicant Versus State of Uttaranchal & another …………Respondents (2) CRIMINAL APPLICATION NO.341 OF 2005 (U/s 482 Of Cr.P.C.) Col. (Retd.) Yogesh Gupta …………Applicant Versus State of Uttaranchal & another …………Respondents Dated: August 25, 2010 Mr. Sandeep Tandon, Adv. for the applicants in both the petitions Mr. Prabhakar Joshi, Brief Holder for the State/respondent no.1 Mr. Vinod Sharma, Adv. for respondent no.2 in both the petitions HON. DHARAM VEER, J. These two petitions have arisen out of a common summoning order and the dispute to be decided in both of them is also same, hence both the petitions are being decided by this common judgment and order. Both these criminal applications, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), are directed for quashing the summoning order dated 3.5.2005 and to quash the entire proceedings of Criminal Case No.185 of 2005, State Vs. Yogesh Gupta & others U/s 406/420 IPC pending before J.M. CBI, Dehradun Heard learned counsel for the parties and perused the material on record. 2 In brief, the facts of the case are that respondent no.2 was engaged in the work of Data Conversion in Computers in the name of Reward Computers from her own house. In August 2003 petitioner Retd. Col. Yogesh Gupta met her and induced to enter into a partnership with him so as to earn huge profits. On 25.8.2003 a deed of Partnership was prepared in which she also made signatures and the ratio of profit was agreed at 60:40 between the parties and a joint bank account was also to be opened and as such the name of Firm was kept as M.S. Reward Computers. The petitioner Yogesh Gupta also got registered the said Firm on 30.8.2003 at Registrar Firms, Uttaranchal and the partnership deed was notarized on 28.8.2003. Since the intention of petitioner Yogesh Gupta was not clean since beginning, hence he instead of opening the joint account, proposed the bank account of complainant, which was at ICICI Bank Rajpur Road Dehradun. The petitioner Yogesh Gupta also got his son Anubhav Gupta and Anil Chauhan, Rajnish Kumar, Raghav Chauhan and Amresh got appointed as Executives in the said Firm without her knowledge and acceptance. The petitioner Yogesh Gupta got a forged C.D. and obtained Rs.5.00 lacs from Mohd. Arshad Usman and out of which Rs.2.05 lacs were deposited in the account of complainant and the rest of the amount was received by the petitioner Yogesh Gupta himself. Petitioner also obtained Rs.5.00 lacs from Mahindra Pal Singh, proprietor of Yash Technology out of which Rs.2.16 lacs were deposited in his account and rest of the amount was received by the petitioner. Similarly Rs.4.00 lacs were received by Yogesh Gupta from Pankaj Gupta, proprietor of M/s Global Business out of which Rs.2.00 lacs were deposited in the complainant’s account and further Rs.80,000/- were deposited in her account of M/s Teleman Solutions. Out of the above said Firms, only the agreement with Pankaj 3 Gupta, proprietor M/s Global Business was executed by the complainant while the agreements with the rest of the Firms were got executed by the petitioner Yogesh Gupta and the employees appointed by him. In November 2003 when the complainant was going to Pithoragarh, the petitioner got 22 Cheques signed by her out of which through 8- Cheques, an amount of Rs.7.21 lacs was withdrawn by the petitioner Yogesh Gupta and his accomplices without knowledge of the complainant. On 5.4.2004 when she came back, she came to know that the said accused had got the office shifted from there and on the same day the petitioner Yogesh Gupta telephonically informed her that the office has been shifted in 49-C 153 Noida and asked her to come Noida to receive her dividend of Rs.10.00 lacs. When the complainant went there, all the accused maltreated her and also abused her. After that the four cheques issued under her signatures issued in the name of Arshad Usman, proprietor M/s Eyenet Technology got dishonoured. She also came to know that the petitioners Rajnish and Yogesh Gupta have already opened a company in the name of Reward Computers at Noida and by inducing the persons there, they are earning money and giving the cheques to those persons which were signed by her. Thereafter she came to Dehradun and even then the accused were threatening her that her signed cheques were lying with them and she is responsible for the entire money taken by the accused and if she would not agree to the demands of accused, she and her children would be kidnapped. On 27.4.2004, some persons came from Faridabad and asked her that they were having a Cheque of Rs.1.50 lac signed by her which was given in lieu of the work given to Rajnish and Yogesh Gupta in Noida for preparation of E-Book, but the work was not done and hence she came to take back their money. Thereafter the complainant informed the police who also called the 4 petitioner Yogesh Gupta where he admitted that he has given the Cheque of complainant after receiving the draft. Then the police got the said cheque back to her and the petitioner Yogesh Gupta agreed for the entire liability but since then he continued to deceive her. With these averments the FIR was lodged by her. After that the matter was investigated and after on completion of investigation, the IO filed the charge sheet against the petitioners on the basis of which learned J.M. CBI Dehradun vide order dated 3.5.2005 took cognizance and summoned the petitioners u/s 420/406 IPC. Hence this petition. A counter affidavit on behalf of respondent no.1 has been filed in which it is stated that during the course of investigation, the I.O. recorded the statements u/s 161 Cr.P.C. of Smt. Krishna Singh, Mahendra Pal Singh, Anil Chauhan and Adesh Chaudhary and from perusal of statements of witnesses, it is clear that the applicants were fully involved in commission of crime along with co-accused person. It is further stated that during investigation, the IO collected sufficient evidence and on the basis of same he submitted the charge sheet against the accused. As such the averments made in the application have been denied. Learned counsel appearing for the petitioners argued that no offence is made out against them and the petitioners have been wrongly summoned by the court below. I do not find any force in this argument for the reason that on a perusal of the FIR lodged by the complainant, the statements recorded by the I.O. u/s 161 Cr.P.C., the offences punishable under Sections 420/406 IPC are prima facie made out against the petitioners on the basis of the above-said discussion and the trial court has rightly proceeded to summon 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 persons and also on the basis of the 5 appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under section 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. If the allegations made in the complaint against the petitioners as well as the statements of the witnesses recorded u/s 161 Cr.P.C. are taken at their face value and accepted in their entirety at this stage, I am of the view that the petitioners have rightly been summoned by the trial court to face trial. 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 these applications. The applications C482 are devoid of merits and are hereby dismissed. Interim orders dated 07.06.2005 & 15.6.2005 are vacated. (Dharam Veer, J.) August 25, 2010 Rdang