IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Misc. Application No.829 of 2008 Date of decision :-26.12.2008 A.F.R. (Approved for Reporting) Not approved for reporting Date :- 26.12.2008 Initials of Judge Note:- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Misc. Application No. 829 of 2008 Nimesh Shah, Partner NISCHMEM International 3-Botawala Building Ground Floor Nyaya Murti G.N. Vaidya Marg Behind State Bank of India Fort Mumbai Police Station – Cuffee Prade, Mumbai – 400 023 …..Applicant Versus State of Uttarakhand & Others ….Respondents Dated :- 26th December, 2008 Hon’ble J.C.S. Rawat, J. Mr. Manish Arora, Advocate for the applicant. Mr. B. S. Parihar, Brief Holder for the State. 2. This petition under section 482 Cr.P.C. has been filed by the applicant for quashing the order dated 09.09.2008 passed by the Judicial Magistrate, Roorkee in Case No. 1249 of 2008 titled as ‘Umesh Sanghi Vs. Devang Parikh & others’ under Section 420 IPC, P.S. Bhagwanpur, District Haridwar and the order dated 06.08.2008 passed by Sessions Judge, Haridwar in Criminal Revision No. 199 of 2008. 3. It is transpired from the record that on 25.01.2008 respondent has filed a complaint against the applicant before the court of Judicial Magistrate, Roorkee. After recording the statements under sections 200 & 202 Cr.P.C., the learned Magistrate dismissed the complaint under section 203 Cr.P.C. vide order dated 26.03.2008. Feeling aggrieved by the order of the learned Magistrate, a revision petition was preferred by the respondent before the Sessions Judge. It was argued before the Sessions Judge that the complainant is not competent to file the complaint as no authority has been filed alongwith the complaint and the same has not been proved in the statement. 4. After hearing the parties, the learned Sessions Judge vide order dated 06.08.2008 while holding that the dispute between the parties is a matter of evidence remitted back the matter to the learned trial court and directed the learned Magistrate to record the evidence in view of the observations made in the judgment. It was further directed by the Sessions Judge that the learned Magistrate would pass the appropriate order for taking cognizance. 5. Thereafter, the parties were given opportunity of hearing before the learned Magistrate. The complainant has filed an affidavit alongwith an authority letter without being it proved by any evidence. After considering the said affidavit, the learned Magistrate summoned the applicant and co-accused vide order dated 09.09.2008. 6. Feeling aggrieved by this, the applicant has preferred the present petition. 7. With the consent of the learned counsel for the parties, this petition is being disposed of finally today at the motion hearing stage without admitting it for hearing. 8. Learned counsel for the applicant contended that the order by which the learned Magistrate has considered the affidavit filed by the complainant is patently illegal and against the provisions of law. It was further contended that the authority letter, by which the complainant has been authorized to file the complaint, has not been proved by any evidence. After hearing at length, learned counsel for the respective parties agreed that in the interest of justice the following consent order may be passed. 9. The petition is disposed of finally. The summoning order dated 09.09.2008 passed by the Judicial Magistrate, Roorkee in case No. 1249 of 2008 under section 420 IPC is quashed. The case is remitted back to the learned Magistrate with the direction to decide the same afresh in the light of the observations made above. The complainant is given liberty to adduce evidence whatsoever he likes to adduce under section 202 Cr.P.C. The learned Magistrate after recording such evidence would dispose of the complaint expeditiously either taking cognizance or rejecting it without considering the affidavit which has been filed earlier. (J.C.S. Rawat, J.) Dated 26.12.2008 LSR