RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISCELLANEOUS APPLICATION No. 720/2008 (Under Section 482 of the CrPC) Ashok Chhetri …….Applicant Versus State of Uttarakhand & Another ……Respondents Mr. Pankaj Purohit, Advocate, for the applicant. Mr. M.A. Khan, Brief Holder, for the State/respondent no. 1. Mr. Lokendra Dobhal, Advocate, for the respondent no. 2. 19th August, 2011 Hon’ble Servesh Kumar Gupta, J. By means of this Criminal Miscellaneous Application, the powers of this Court under Section 482 CrPC have been sought to be invoked for quashing of the entire proceeding of Criminal Case No. 8405/2008, State v. Ashok Chhetri, under Section 420 IPC, pending in the court of Additional Chief Judicial Magistrate Ist, Dehradun. 2. The background facts are that on initiation of the applicant Ashok Chhetri, respondent no. 2 Sukhram Khadga purchased a piece of land ad measuring 376.25 sq. mt. bearing khasra no. 2475/179 situated in village Markhamgrant-2 on 8.3.2004 for total consideration of rupees four lakhs. This land was owned by one Rishipal Singh, S/o late Latoor Singh, R/o Madhowala (Markhamgrant), Pargana Parvadoon, District Dehradun. Rishipal Singh is a colleague and also said to be a friend of applicant Ashok Chhetri. Both work in I.R.D.E. (an organization of the Government of India). Ashok Chhetri and Sukhram Khadga are the real brother-in- law of each other. As per the statement of Sukhram Khadga, rupees four lakhs were given as consideration by him to Ashok Chhetri, who was playing the role of a mediator in the said 2 transaction. The seller Rishipal Singh has also given a statement to the Investigation Officer that the whole transaction was being done by Ashok Chhetri and he relied upon him because he was his colleague working in the same office. He never knew Sukhram Khadga. During investigation, it was revealed that Ashok Chhetri although received the consideration amount of rupees four lakhs from Sukhram Khadga, but out of the said amount, he only gave rupees sixty thousand to Rishipal Singh in cash, and in addition thereto, he gave a cheque of rupees forty thousand, which was subsequently dishonoured by the bank. When Rishipal Singh did not receive the entire amount, he complained the matter to the applicant Ashok Chhetri and repeatedly asked him to pay the remaining amount. On this, Ashok Chhetri asked to sell the same land to some other person in order to receive the full amount of consideration. It has also been stated by Rishipal in his statement under Section 161 CrPC that Ashok Chhetri told him that he will persuade and pacify Sukhram Khadga as he is his real brother-in-law. Ashok Chhetri did not ever allow Rishipal to directly approach Sukhram Khadga and to enquire regarding the payment of the remaining amount of sale consideration. So, Rishipal, on the persuasion of Ashok Chhetri, sold the same land as aforementioned to one Nathi Ram on 22.5.2007. 3. When the aforesaid fact of reselling the land came to the notice of Sukhram Khadga, he lodged an FIR on 31.10.2007 against Rishipal and Ashok Chhetri. The police after investigation found that Ashok Chhetri is the real culprit, and Rishipal has sold this land again to Nathi Ram (although illegal) under ignorance of law inasmuch as the earlier sale deed dated 8.3.2004, which was also illegal as the same was executed without permission of the Collector concerned. It is pertinent to mention here that Rishipal belongs to Scheduled 3 Caste community and he could not sell his land to Sukhram Khadga without the permission of the Collector. Ashok Chhetri concealed this fact from Sukhram Khadga that Rishipal belongs to Scheduled Caste community. Even he did not try to persuade Rishipal to seek the permission of the Collector before executing the sale deed dated 8.3.2004. It is significant to note that in the sale deed dated 8.3.2004, it was mentioned that the vendor Rishipal does not belong to either Scheduled Caste or Scheduled Tribe community, and Ashok Chhetri has put in his signature as a witness upon that sale deed. Hence, Sukhram Khadga had the grievance against Ashok Chhetri for concealment of this material information and being instrumental in this entire episode of cheating. 4. The chargesheet was submitted after investigation only against the applicant Ashok Chhetri, and not against Rishipal. The learned Counsel for the applicant has contended that Rishipal has been made approver during the course of investigation and he could be allowed to do so only with the permission of the Magistrate concerned, as envisaged under Section 306 CrPC. Opposing the said contention, learned Counsel for the private respondent contended that Rishipal has not been made approver in this case. The police have made him only a witness. If the police have not submitted the chargesheet against Rishipal, then the matter could be protested during the course of trial because there was no occasion for Sukhram Khadga during the course of investigation to interfere with the decision of the Investigation Officer regarding submission of the chargesheet only against Ashok Chhetri, and dropping the same against Rishipal. This Court is in full agreement with the contention of the learned Counsel for the private respondent (Sukhram Khadga). 4 5. Learned Counsel for the private respondent relied upon a judgment rendered by the Hon’ble Apex Court in case of Mahesh Chaudhary v. State of Rajasthan & Another, (2009) 2 SCC (Cri) 332, wherein the Hon’ble Apex Court has expressed its view defining the scope of Section 482 CrPC for quashing the chargesheet and has observed that where the allegations of fraud and forgery are there, then the High Court can quash the chargesheet if allegations in FIR or complaint petition do not disclose commission of offence even if on face value they are taken to be correct in their entirety. While doing so, High Court is not to embark upon the appreciation of evidence but to consider only the material on record as a whole though the High Court is required to consider as to whether the allegations made in the FIR or the complaint petition fulfill the ingredients of the offences alleged against the accused. The Apex Court further observed that the dispute primarily being of civil nature is not by itself a ground to quash criminal proceedings because in cases of forgery and fraud, there would always be some element of civil nature. 6. On having a look on the FIR dated 31.10.2007 as well as on the statement of Sukhram Khadga and Rishipal, given by them to the Investigation Officer during the course of investigation, this Court is of the view that prima facie there are formidable evidence incriminating the applicant Ashok Chhetri for the offence of Section 420 ICP and, therefore, there is no reason for this Court to exercise its power under Section 482 CrPC. 7. For the reasons recorded above, the petition is bereft of merit and is liable to be dismissed. The same is hereby dismissed. 5 8. Let a copy of this order be sent to the court concerned so that the trial against the accused applicant may proceed further. (Servesh Kumar Gupta, J.) 19.8.2011 Prabodh