IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISCELLANEOUS APPLICATION No. 355/2005 (Under Section 482 of the CrPC) Pankaj Narang …….Applicant Versus State of Uttaranchal & Another ……Respondents 8th August, 2011 Hon’ble Servesh Kumar Gupta, J. Heard Mr. Sandeep Tandon, assisted by Mr. Mohd. Azim, Advocate, for the applicant and Mr. P.S. Bohara, Brief Holder, for the State/respondent no. 1. None turns up on behalf of the respondent no. 2 though on the last date of hearing Mr. V.P. Bahuguna, Advocate, was present for the respondent no. 2. 2. By way of this criminal miscellaneous application, the cognizance order dated 24.10.2001 against the applicant Pankaj Narang for the offence of Section 406 IPC is under challenge. This cognizance order against the applicant was passed in Criminal Complaint Case No. 206/2004, Pawan Kumar Saini v. Sawera Credits & Others, by the Judicial Magistrate 2nd, Derhadun on a protest petition against the final report submitted by the investigation agency on an FIR registered under Section 156(3) CrPC. 3. The background facts sans unnecessary details relate to a hire-purchase agreement between the company M/s Sawera Credits Pvt. Ltd. which is managed by Pankaj Narang as director, on the one hand and respondent no. 2 Pawan Kumar Saini on the other hand. Pawan Kumar Saini hailing from Dehradun applied for rupees one lakh loan from the said company with the intention to purchase a passenger bus. The 2 agreement was executed between the two and the said loan of rupees one lakh was accorded to respondent no. 2 Pawan Kumar Saini, of whom the guarantors were one Ratan Singh Bhandari and Jai Bhagwan Singh. After payment of few installments when the default was committed by Pawan Kumar Saini, then the bus was taken possession adversely by Mr. Bhandari. Feeling aggrieved, respondent no. 2 Pawan Kumar Saini lodged an FIR through invoking the jurisdiction of Magistrate under Section 156(3) CrPC on 12.12.1999. After investigation, the Final Report was submitted on 31.12.1999, where against the protest petition was filed on dated 5.9.2001. The same was registered as a complaint case. After recording the statement of complainant under Section 200 CrPC and statement of the witnesses under Section 202 CrPC, the impugned cognizance order was made by the Magistrate as stated above. 4. After hearing of the applicant, it appears that the incident is of March, 1999 when the adverse possession was taken by Mr. Jai Bhagwan Bhandari & Mr. Ratan Singh Bhandari (guarantors of respondent no. 2). In October, 1999 the said passenger bus was requisitioned by the district administration for election purposes. On making the default by respondent no. 2 Pawan Kumar Saini, an FIR was lodged against him for the offence of Peoples Representation Act in PS Doiwala, District Dehradun. So in order to avert the allegations of that FIR, it appears that respondent no. 2 lodged the instant FIR against Pankaj Narang, Ratan Singh Bhandari and Jai Bhagwan Bhandari with the result the Final Report was submitted against that FIR which was lodged against respondent no. 2 under the Peoples Representation Act. 5. It is pertinent to mention that when Final Report dated 31.12.1999 was submitted, the Investigation Officer 3 ratified the facts that respondent no. 2 Pawan Kumar Saini did lodge this FIR in order to save himself from the legal action under the Peoples Representation Act. Besides in the counter affidavit of respondent no. 2, in para 15, it has been averred that no hire-purchase agreement was ever been executed. He did not sign any such agreement. No hypothecation deed was executed in favour of the applicant and even Ratan Singh Bhandari and Jai Bhagwan Bhandari were not the participants as guarantors of the deed. In addition to this, para 28 avers that the bus has already been taken away by Ratan Singh Bhandari and Jai Bhagwan Bhandari on the instructions of the applicant and they have illegally and without authority disposed of the said bus. These averments make it amply clear that the said bus was taken away (if ever) not by the applicant Pankaj Narang but by Ratan Singh Bhandari and Jai Bhagwan Bhandari. Therewithal these averments are in contradiction from the facts which have been stated by respondent no. 2 Pawan Kumar Saini in his FIR which resulted in the Final Report dated 31.12.1999. The facts stated in the Final Report and in the counter affidavit of respondent no. 2 are self contradictory in so many words. 6. It is also pertinent to mention that the applicant Pankaj Narang himself filed a complaint case in the court of Special Judicial Magistrate, Meerut against the respondent no. 2 Pawan Kumar Saini for the offence of Section 406 & 420 IPC, wherein the cognizance was taken against the respondent no. 2 for the offence of Section 406 IPC and it has been argued that the same is still pending in the Magistrate court. 7. In view of the above discussion, it appears that the protest petition filed by the respondent no. 2 Pawan Kumar Saini against the applicant Pankaj Narang is without any basis and just to avert the payment of loan which he had taken from 4 M/s Sawera Credits Pvt. Ltd. The cognizance order against the applicant is not sustainable and is liable to be quashed. 8. Accordingly, this petition under Section 482 CrPC filed by the applicant Pankaj Narang is allowed. Impugned order of cognizance dated 24.10.2001 against the applicant is set aside. (Servesh Kumar Gupta, J.) 8.8.2011 Prabodh