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. 62 of 2003 Date of decision :-17.12.2008 A.F.R. (Approved for Reporting) Not approved for reporting Date :- 17.12.2008 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. 62 of 2003 Smt. Asha Devi W/o late Madho Ram Balmiki ..Applicant Versus State of Uttarakhand & another ….Respondents Dated :- 17th December, 2008 Hon’ble J. C.S. Rawat, J. Mr. Mohd. Azim, Advocate for the applicant. Mr. Amit Bhatt, Addl. G.A. for the State. Mr. Gopal Krishan, Advocate for respondent nos.2 & 3. 2. This petition under section 482 Cr.P.C. has been filed for setting aside the judgment & order dated 18.01.2003 passed by Addl. Sessions Judge / IIIrd F.T.C., Udham Singh Nagar in Criminal Revision No.38 of 2002 and order dated 12.06.2002 passed by Addl. Chief Judicial Magistrate, Kashipur in Criminal Case No.299 of 2001 titled as ‘State Vs. Geeta Rani & other under sections 420, 467, 468 I.P.C. 3. Brief facts of the case are that the applicant filed an application under section 156 (3) Cr.P.C. before the A.C.J.M., Kashipur alleging therein that the applicant had purchased a single story house for a consideration of Rs. 50,000/- on 30.11.1999 from Geeta Rani, who was allegedly said to be a power of attorney holder of the property of Mahendra. The sale deed of the said house was executed by Km. Geeta Rani. Respondent no.2- Geeta Rani has assured the applicant that the possession of said house would be handed over to her after execution of sale deed. But, the possession of said house was not given to the applicant. Later on, the applicant came to the knowledge that Geeta Rani has prepared a fictitious and false power of attorney to grab the money of the applicant. Thereafter, on the basis of the application filed under section 156(3) Cr.P.C. the case was registered. After completing the investigation, the police submitted the chargesheet against the respondent nos. 2 & 3 and thereafter the Magistrate took cognizance against them. At the time of framing of charge, the respondent nos. 2 & 3 had contended before the trial court that there was no evidence for framing charge against them. Vide order dated 12.06.2002 learned Magistrate after hearing the parties has held that there was no sufficient evidence to frame the charge against respondent nos. 2 & 3. The Magistrate had discharged the accused from the proposed charges. Feeling aggrieved by the discharge order of the Magistrate, a revision was preferred before the Addl. Sessions Judge and the same was dismissed vide order dated 18.01.2003. Thereafter, the present petition has been filed by the applicant. 4. Learned counsel for the applicant contended that when the applicant came to know that they committed forgery and cheating, she filed an application under section 156 (3) Cr.P.C. before the Magistrate. Learned counsel for the respondent nos.2 & 3 contended that there was no evidence against them. As such, the discharge order passed by the Magistrate is correct. Learned counsel for respondent nos. 2 & 3 has supported the findings recorded by both the courts below. The main controversy involved for consideration in this petition is that whether the power of attorney which was executed by Mahendra in favour of Geeta Rani- respondent no.2 was a forge one or it was never executed by Mahendra. Perusal of the record reveals that only the statement of applicant was available with the trial court and no other evidence was made available. The evidence of Mahendra and attesting witnesses was not taken by the Investigating Officer and it was not before the court. As such, the charge was not framed against the respondent nos.2 & 3 by the trial court. For framing the charge, the Magistrate must be in the opinion that there is a ground for presuming that the accused has committed an offence and he is competent to try the accused. Thus, there must be some evidence for framing charge against the accused. In the instant case, the Magistrate has found that the statements of Mahendra and attesting witnesses were not recorded. In absence of these evidence it cannot be said that the document i.e. power of attorney was forged one. It is not clear from the petition itself that as to how the applicant got the information about the fictitious power of attorney. Therefore, I am of the view that there is no fault with the findings recorded by both the courts below. No interference is required in this matter. The petition is devoid of merit and is dismissed accordingly. (J.C.S Rawat, J.) Dated 17th December, 2008 LSR