IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Restoration Application No. 1052/2010 With Delay Condonation Application No. 1429/2010 In CRIMINAL MISCELLANEOUS APPLICATION No. 288/2006 (Under Section 482 of the CrPC) B.S. Kaintura …….Applicant Versus State of Uttaranchal & Another ……Respondents Mr. Ramji Srivastava, Advocate, for the applicant. Mr. P.S. Bohra, Brief Holder, for the State/respondent no. 1. Mr. Siddhartha Singh, Advocate, for the complainant/respondent no. 2. 27th July, 2011 Hon’ble Servesh Kumar Gupta, J. By way of this criminal miscellaneous application, the order of cognizance dated 20.1.2006, passed by the Chief Judicial Magistrate, Dehradun upon the chargesheet in Criminal Case No. 231/2006, State v. Sunil Singh & Others under Section 420, 467, 468, 471, 406, 120B & 201 IPC has been sought to be quashed. It has also been prayed that the chargesheet so submitted after investigation be also quashed. The order of cognizance at the time of filing the petition was stayed by this Court. But subsequently on 13.7.2010, the petition was dismissed for want of prosecution and the interim order of stay dated 6.5.2006 was vacated. Applicant filed an application for restoration and since there was delay in filing the same, he also filed delay condonation application along with the restoration application, whereupon it was ordered that the restoration application as well as the main petition will be heard together. 2 2. In the interest of justice, delay in filing the restoration application is condoned. Delay condonation application is allowed. 3. Heard learned Counsel for the parties and perused the materials available on record. 4. It is pertinent to mention that the order of cognizance as well as submission of chargesheet was challenged by the applicant by filing this criminal miscellaneous application no. 288/2006, and the same was also challenged by the co-accused Sunil Singh in writ petition no. 289/2006, which was dismissed on merit by this Court on 20.7.2010. 5. For hearing the restoration application, the merits of the case are looked into. It transpires from the record that an FIR was lodged by the respondent no. 2 Smt. Bharti Ganguli, who basically hails from Kolkata, but lives in city of Dehradun. This FIR was lodged on 20.7.2005 against Sunil Singh and B.S. Kaintura (applicant) with the averments that Smt. Bharti and Sunil Singh jointly used to run a coaching/tuition institute for the children at Dehradun. At one point of time, Smt. Bharti decided to wind up this business, which was jointly being run with the assistance of Sunil Singh. Sunil Singh’s kith came to Smt. Bharti and requested her to continue the same so that Sunil Singh may not be left unemployed. They were dependant on Smt. Bharti because this institute of tuition was being run at the residence of Smt. Bharti. Sunil Singh and his kiths assured Smt. Bharti that whatever money will be collected as remuneration from the children, it will be deposited in the bank by Sunil Singh with all sincerity and honesty and his salary will be drawn from the bank itself on the basis of cheques issued by Smt. Bharti. 3 Smt. Bharti in the last week of June, 2004 went to Kolkata and in order to run the institute amicably issued some cheques to Sunil Singh so that in her absence, he could be able to draw the usual expenses including salary from the bank. Smt. Bharti did so, believing the integrity of Sunil Singh. On return from Kolkata, Sunil Singh did not submit the accounts properly. So differences arose between the two and the institute was closed. The bank account of the institute was also closed. With the intention of revenge, Sunil Singh misused one of the cheques bearing no. 412919 having the signature of Smt. Bharti, and hatching the conspiracy with his Advocate brother, issued it to the applicant for withdrawal of Rs. 50,000/-. This cheque was dated 25.5.2005. Naturally it had to be dishonoured by the bank. So on getting the cheque dishonoured by the bank, the applicant served a notice to Smt. Bharti on 4.7.2005 under Section 138 of the Negotiable Instruments Act, which was served on her on 7.7.2005 and a complaint under Section 138 of the Negotiable Instruments Act was filed on 25.7.2005. When Smt. Bharti got the above notice, she was bewildered and understood the conspiracy hatched against her and became aware of events of misusing the cheque by Sunil Singh. She ran from pillar to post seeking assistance of the law and order machinery. As the FIR discloses, just after serving the notice, she rushed to the DIG, dehradun on 12.7.2005, and also the Station Officer, PS Patel Nagar, Dehradun on 16.7.2005 and after much effort, her FIR could be lodged on 20.7.2005 against Sunil Singh and B.S. Kaintura (applicant). Thereafter investigation was made and chargesheet was submitted as stated above. 6. Learned Counsel for the applicant has contended that this FIR was lodged by Smt. Bharti in order to save herself from the payment of Rs. 50,000/-, which she took from him. 4 7. On hearing the contention of learned Counsel for the parties, this Court is of the view that things are quite otherwise. The facts stated in the FIR inspire confidence and are believable. The investigating agency has also found that Sunil Singh in order to take avenge from Smt. Bharti hatched this conspiracy in collusion with the applicant and his Advocate brother and kept the proceedings of the case against him stayed by obtaining the stay order from this Court, whereas proceedings of the case filed by the applicant under Section 138 of the NI Act continued to proceed. That is why, on dismissal of this petition, he moved the urgency application so that after restoration the stay order dated 6.5.2006 passed in this petition may also be restored. 8. The contention of the learned Counsel for Smt. Bharti (respondent no. 2) that there was no occasion for his client to take loan of Rs. 50,000/- from the applicant has force. The applicant nowhere has disclosed that as on what date, this loan of Rs. 50,000/- was taken, and why he gave this loan without obtaining any security. So there appears to be a cock and bull story fabricated by both the accused persons i.e. Sunil Singh and B.S. Kaintura (applicant). Sunil Singh’s petition has already been dismissed on merit. This petition of the applicant is also devoid of any merit and is liable to be dismissed. 9. For the reasons stated above, the restoration application and the criminal miscellaneous application are hereby dismissed with cost of Rs. 5,000/- on the applicant payable to Smt. Bharti Ganguli. (Servesh Kumar Gupta, J.) 27.7.2011 Prabodh