IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Restoration Application No.705 of 2010 Miscellaneous Application No.3507 of 2010 In CRIMINAL MISC. APPLICATION NO.515 OF 2006 (U/s 482 of Cr.P.C.) Rajendra Prasad and another …………Applicants Versus State of Uttarakhand and another …………Respondents Dated: September 22, 2010 HON. DHARAM VEER, J. Mr. Pawan Mishra, Advocate for the applicants. Mr. Amit Bhatt, Additional Government Advocate for the State/respondent no.1. Ms. Geeta Parihar, Advocate for respondent no.2. This is restoration application no.705 of 2010 filed by the applicants for restoration of the petition u/s 482 Cr.P.C., which was dismissed for non-prosecution on 2.8.2010. The ground for absence on the date fixed by the Court is sufficiently explained in the affidavit accompanying the restoration application. The restoration application is allowed. The application u/s 482 Cr.P.C. stands restored to its original number. Supplementary counter affidavit filed by the applicants is taken on record. Miscellaneous application no.3507 of 2010 stands allowed accordingly. By means of this petition, moved under Section 482 of The Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner/applicant has sought quashing of the order dated 24.5.2006 passed by Judicial Magistrate, IInd, Dehradun as well as the proceedings of criminal case no.1267 of 2003, Devendra 2 Kumar Mittal v. Ram Bharose and another, under Section 420 of The Indian Penal Code, 1860 (for short, IPC). Heard learned counsel for the applicant and perused the affidavit, counter affidavit and supplementary counter affidavit. Brief facts of the case are that respondent no.2 Devendra Kumar filed a complaint in the court of C.J.M., Dehradun on 14.12.1992 against the applicants with the allegations that on 21.8.1990 the applicants had executed a registered agreement to sell in favour of the complainant towards the sale of total 0.34 acre of land on the sale consideration of ` 50,000.00, in which it was decided that the applicants shall get the sale deed of land executed in favour of the complainant upto 31.12.1992, for which the complainant paid ` 30,000.00 as earnest money to the applicants. It is further alleged that on 18.10.1992 when the complainant went to see the land in dispute, he could know that the said land has been sold to one Dr. Anil Kumar by the applicants. Thereafter, the complainant went to enquire the matter from the applicants but they did not meet him. It is further alleged that from the very beginning it was the intention of the applicants to grab the money of the complainant and to committed fraud upon him. Thereafter, this complaint was filed before IInd Additional Munsif Magistrate, Dehradun before whom the complainant examined himself u/s 200 Cr.P.C. and u/s 202 Cr.P.C. Balwant Singh and Bhagwat Prasad were got examined. After hearing learned counsel for the parties and perusing the material available, learned IInd Additional Munsif Magistrate, vide his order dated 27.1.1993, dismissed the complaint u/s 203 Cr.P.C. Against the said order dated 27.1.1993, the complainant preferred a revision in the court of Sessions, which was also dismissed. Against the said orders dated 27.1.1993 and 23.3.1993, the respondent no.2 filed an application u/s 482 Cr.P.C. before Hon’ble Allahabad High Court. The same was allowed vide order dated 23.12.1998 and the order dated 23.3.1993 was set aside and the revisional court was directed to decide the revision a fresh. Thereafter, after the remand, the learned Additional Sessions Judge, Ist, Dehradun, vide its judgment and order dated 1.10.1999 allowed the revision and set 3 aside the order dated 27.1.1993 and the trial court was directed to decide the case after summoning the applicants u/s 420 IPC. Thereafter, the statement of respondent no.2 was recorded u/s 244 Cr.P.C. before Special Judicial Magistrate, IInd, Dehradun and on 24.5.2006, learned Special Judicial Magistrate, IInd, Dehradun directed to frame the charge u/s 420 IPC against the applicants and fixed the date for framing of charge on 16.6.2006. Against the said order dated 24.5.2006, the applicants have preferred the present petition u/s 482 Cr.P.C. before this Court. Learned counsel for the applicants argued that on the basis of the allegations made in the complaint, offence u/s 420 IPC is not made out against the applicants and the order dated 24.5.2006 passed by Special Judicial Magistrate, IInd, directing to frame the charge against the applicants u/s 420 IPC is not correct and justified. Contrary to this, learned Addl. GA for the State submitted that at the time of framing of the charge the probative value of the material on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true at that stage. (Reliance is placed on “Soma Chakravarty vs. State (Th.CBI)” reported in 2007 AIR SCW 3683). From a perusal of the contents of the complaint as well as the statement recorded u/s 244 of Cr.P.C. and after going through other papers available in file, I am of the view that prima facie a case under section 420 IPC is made out against the applicants and in view of the well settled proposition of law the order dated 24.5.2006 passed by Special Judicial Magistrate is correct and justified and requires no interference by this Court. For the reasons recorded above, there is no force in the application. The C482 application is dismissed accordingly. Interim order dated 7.7.2006 stands vacated. (Dharam Veer, J.) 22.9.2010 RG