IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 520 of 2007 Om Prakash Kirtipal (since deceased) and another ……… Applicants. Versus State of Uttarakhand and another ……… Respondents. Mr. Pawan Mishra, Advocate for the applicant. Mr. Nandan Arya, Assistant Government Advocate (Govt. of Uttarakhand) for respondent No. 1. Mr. Siddhartha Sah, Advocate for respondent No. 2. Date of Judgment: 10.03.2011 BARIN GHOSH, C.J. (ORAL) The application by applicant No. 1 is no longer maintainable in view of the fact that the said applicant has since died. In this application, made under Section 482 of the Criminal Procedure Code, applicant No. 2 is challenging the order by which the Magistrate has taken cognizance in a complaint case. The reason that the Magistrate could not take cognizance, appears to be that the complainant had filed a civil suit against the deceased / applicant No. 1 and his relatives, seeking a mandatory injunction, directing restoration of the property of the Trust, which, according to the complainant, who was plaintiff in the said civil suit, was wrongfully obtained, which was purported to have been shown to have been obtained by the deceased / applicant No. 1 and his family members, though the same belongs to the Trust. And at the same time, in the complaint, it has been alleged that the selfsame property of the Trust has been obtained by the deceased / applicant No. 1 by perpetrating fraud on the society. It was contended that since the said civil suit has been dismissed, on the selfsame ground, a criminal complaint is not maintainable. 2. The fact remains that the civil suit has not been dismissed on merits; the same has been dismissed on a technical ground that the complainant herein has no locus standi. As a result, there is no pronouncement by the civil court in relation to merits in the suit. The first ground for challenging the order, taking cognizance, therefore, fails. 2 3. It is next contended that applicant No. 2 was not a party to the said civil suit. There is no allegation against him in the suit. In the complaint, there are certain allegations; those are of no consequence, in as much as the allegations are that the said applicant failed to furnish accounts and records, despite demand. Whether applicant No. 2 deliberately refused to give accounts and furnish documents or he was prevented from giving the same, is a question of fact, which is required to be gone in. The fact, however, remains that it is the allegation of the complainant that applicant No. 2 was secretary of the Trust at the relevant time, when the deceased / applicant No. 1 said to have grabbed the property belonging to the Trust. In the circumstances, the second ground of challenge also fails. 4. Learned counsel for the applicants cited a judgment of the Hon’ble Supreme Court, rendered in the case of Ujjagar Singh Vs. State of Punjab, reported in 2009 (1), SCC (Criminal), 272, but I do not think, that judgment has any application to the facts and circumstances of this case. In that case, amongst others, the Hon’ble Supreme Court was concerned as to altered stand taken by the parties to the lis and the effect thereof, which has no application in the instant case. 5. Applicant No. 2, having not responded to the summons issued after cognizance was taken, must appear before the Magistrate concerned within a month from today, when it shall be open to him to seek exemption from appearance, provided he seeks the same, in addition to applying for bail, if he surrenders on that day. In the event such an application is filed for grant of bail, in as much as all the materials are now on record, the Magistrate is directed to decide the application on the same date. The Magistrate shall proceed to frame charge only after permitting applicant No. 2 to seek discharge. 6. The instant application is, accordingly, disposed of. (Barin Ghosh, C.J.) 10.03.2011 Amit