IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL C-482 No. 398 of 2007 Yogeshwar Singh Malik ……… Petitioner Versus State of Uttarakhand and another …...... Respondents Mr. S.K. Aggarwal, learned Senior Counsel with Mr. R.V.S. Khokher, learned counsel for the petitioner. Mr. Harish Pujari, learned Additional Government Advocate. Mr. Manoj Shah, Advocate vice Mr. Lokendra Singh, learned counsel for the applicant in Crl. Misc. Application No. 457 of 2007. Hon’ble V.K. Gupta, C.J. CRMA Crl. Misc. Application No. 457 of 2007 Learned counsel for the applicant does not want to press the application. The application is dismissed as not pressed. C-482 No. 398 of 2007 Counter has not been filed. Mr. Pujari submits that he does not want to file any counter affidavit. Vide the impugned order dated 25.4.2006 the learned trial court while exercising its jurisdiction and power under Section 319 Cr.P.C. has summoned the petitioner as an accused to face trial for offences under Sections 409, 465, 467, 468, 471 and 120 B IPC. In the police report originally filed under section 173 Cr.P.C. two accused persons were arraigned but, subsequently it appears that the learned trial court while exercising the aforesaid jurisdiction and putting reliance upon the statements of two witnesses, viz., Allauddin, P.W. 1 and R.K. Agrawal, P.W. 2 passed the impugned order summoning the petitioner as accused. I have heard the detailed arguments of the learned counsel for the parties. Mr. S.K. Aggarwal, learned Senior Counsel appearing for the petitioner took me through the complete statements of the aforesaid two witnesses. As far as the first witness, namely, P.W. 1 Allauddin is concerned, I have gone through his entire statement and find that the only mention that he made in the course of his statement about the petitioner was to the following effect: “It is correct to say that the Accountant, Chief Accountant and General Manager have to sign the vouchers after checking the same. It is not in my knowledge as to whether these three persons had tallied the grand total contained in the vouchers as this related to the salary register and the amount paid vide the said vouchers.” At another place the same witness stated as under:- “Cash payment vouchers contained signatures of Chief Accountant, Accountant and General Manager apart from the signature of Shyam Kumar Sharma. I cannot say whether these three persons signed the cash payment vouchers in routine or not.” As far as the statement of the second witness, namely, R.K. Agrawal, P.W. 2 is concerned, insofar as the petitioner is concerned, the only mention that he made in the course of his statement about him is to the following effect: “Accountant first signs the vouchers. Thereafter the vouchers are signed by the Chief Accountant and the General Manager. As far as the General Manager is concerned, he is not supposed to, nor does he read the vouchers but signs them in routine.” At another place the same witness insofar as the petitioner is concerned, deposed as under: “Apparently the General Manager, Chief Accountant, Accountant, Assistant Accountant and Time Keeper, etc. were careless and negligent. If high ranking officers had been discharging their duties properly, they could have detected the fraud and saved the occurrence of such a huge embezzlement.” This witness further stated as under: “It is incorrect to state that the higher officers committed any embezzlement.” I have very carefully perused the aforesaid statements of the witnesses. I also also very carefully perused the impugned order dated 25.04.2006 and find that insofar as the petitioner is concerned, the only ground upon which he was summoned by the learned court below was based upon, linked with and originating from the statements of the aforesaid two witnesses. The learned court below clearly has taken the view that there was no other material connecting the petitioner in any form on in any manner. Mr. Pujari, learned Additional Government Advocate appearing for the respondent-State has very fairly and frankly conceded before me that in fact the learned court below had no other material before it to summon the petitioner and there the act of summoning the petitioner as an accused as far as learned court below is concerned, was based only upon the aforesaid testimonies of the aforesaid two witnesses. Mr. Pujari has again very clearly, frankly and fairly conceded before me that as far as the aforesaid two witnesses are concerned, apart from whatever has been extracted in this judgment from their statements nothing else, exculpatory or inculpatory finds any mention in their statement with respect to the petitioner. The aforesaid being the factual position, I have no hesitation in holding and coming to the conclusion that the learned court below committed a grave error of law, based upon his total mis-appreciation of the factual aspects, in summoning the petitioner as an accused because no material existed which warranted summoning of the petitioner as accused in the case. At best, the accused could have been considered or deemed or alleged to be negligent or careless in the performance of his duties. It is no one’s contention, neither of the prosecution nor of any witness or a co- accused that the petitioner committed any act whereby he even indirectly could be said to have been connected with the commissioning of any offence. On a totality of circumstances and after careful perusal of the material on record, I find that the present case can be termed as case based on ‘no evidence’. Since there was neither any material nor any evidence to support any contention against the petitioner, apparently, by an improper exercise of jurisdiction, the learned Court below issued a summoning order against the petitioner which is not tenable in law. For the foregoing reasons, this petition is allowed. The impugned summoning order is quashed and set aside, alongwith the proceedings initiated against the petitioner, with all the consequences. (V.K. Gupta, C.J.) 15.10.2008 Avneet