IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 510/2006 Arun Singh …….Petitioner Versus State of Uttaranchal & Anr. …….Respondents July 20, 2010 Hon’ble Dharam Veer, J. Heard Mr. GC Lakhchaura, Advocate for the petitioner and Mr. Amit Bhatt, Addl. GA for the State. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC), the petitioners have prayed for quashing the summoning order dated 10.10.2005 as well as the entire proceedings of Criminal Case No. 754/2005 Raj Karan v. Arun Singh under Section 420, 406 IPC pending in the Court of Addl. Judicial Magistrate Ist Class, Rudrapur, Udham Singh Nagar. Facts, in brief, are that the respondent no. 2 Raj Karan filed a complaint against the petitioner stating that petitioner runs a company in the name of Singh & Company. In the year 2001, Narendra Singh Dhillon, friend of the respondent no. 3 told him that petitioner gives employment in foreign countries. On this, respondent no. 3 along with his friend Narendra Singh Dhillon met the petitioner at Kanchan Tara Hotel, Rudrapur. Petitioner assured them that he would provide regular employment in Germany and told them that it will cost rupees five lakhs each. On 1.5.2001, respondent no. 3 gave Rs. 2,50,000/- and his friend Narendra Singh Dhillon gave Rs. 30,000/- to the petitioner in the presence of Village Pradhan Ateek Ahmad in Kanchan Tara Hotel, Rudrapur. After some days, the respondent no. 3 and his friend paid the remaining amount to the petitioner in the same hotel at Rudrapur in the presence of Village Pradhan Ateek Ahmad. After few days, petitioner sent the respondent no. 3 to Germany for three months i.e. from 8.6.2001 to 7.9.2001 by showing him as his employee but he was not given any employment in Germany. On 5.9.2001, petitioner asked the respondent no. 3 to come back from Germany on the pretext that this time he will provide him regular visa and thereafter he would be sent to Germany and would also be given employment there. Therefore, respondent no. 3 came back but thereafter he was neither given any employment in any foreign country nor his money i.e. rupees five lakhs have been returned to him by the petitioner. Learned trial court after recording the statement of the complainant under Section 200 CrPC and the statements of the witnesses under Section 202 CrPC, came to the conclusion that a prima facie case under Section 420, 406 IPC is made out against the petitioner/accused and accordingly summoned him vide order dated 10.10.2005. Learned Counsel for the petitioner argued that petitioner has been falsely implicated in this case. I do not find any force in the argument of learned Counsel for the petitioner due to the reasons that averments made in the complaint are corroborated by the statement of the complainant under Section 200 CrPC and the statements of the witnesses under Section 202 CrPC and other documentary evidence produced by the complainant. Learned Counsel for the petitioner further very vehemently argued that the case against the petitioner is barred by Section 468 CrPC. I do not find any substance in the argument of learned Counsel for the petitioner as the learned Magistrate has taken cognizance of offence under Section 420 as well as 406 IPC. Undoubtedly, the Section 406 IPC provides punishment with imprisonment of either description for a term which may extend to three years, or with fine, or with both. But the cognizance against the petitioner has also been taken under Section 420 IPC, which provides punishment with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, whereas maximum limitation provided under sub-clause (2) of Section 468 CrPC is three years, if the offence is punishable with imprisonment for term exceeding one year but not exceeding three years and its sub-clause (3) further provides that the period of limitation in relation to offences which may be tried 2 together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. Hence, in the present case, the limitation shall be determined with reference to Section 420 IPC as the petitioner has been summoned both under Sections 420 and 406 IPC. Hence, apparently limitation provided under Section 468 CrPC shall not apply in the instant case. Section 468 CrPC is reproduced below for the sake of convenience: “468. Bar to taking cognizance after lapse of the period of limitation.—(1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine only. (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more sever punishment or, as the case may be, the most sever punishment.” Having considered the arguments advanced by learned counsel for the petitioner; perusal of complaint, summoning order dated 10.10.2005, statements recorded under Section 200 and 202 CrPC and other papers available on record, I am of the 3 view that a prima facie case under Section 420 and 406 IPC is made out against the petitioner. Even otherwise, the dispute involves factual question which cannot be decided by this Court. The dispute can be decided only after adducing the oral and the documentary evidence by the parties before the trial court. It cannot be decided by this Court only on the basis of papers filed on the record. Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. If the allegations made and the evidence oral as well as documentary produced against the accused and the statements of witnesses are taken at their face value and accepted in their entirety, I am of the view that the petitioner has rightly been summoned by the trial court. 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. The petition lacks merit and is liable to be dismissed. Accordingly, the petition is dismissed. Interim order dated 21.7.2006 stands vacated. (Dharam Veer, J.) 20.7.2010 PRABODH 4