IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Misc. Application No. 355 of 2003 1- M/s Ashok Kumar Narender Kumar Grain Merchant and Commission Agent, Gandhi Chowk, Haathras, District Aligarh U.P. 2- Ashok Kumar, Partner M/s Ashok Kumar Narender Kumar (R/o as above). 3- Narender Kumar Partner M/s Ashok Kumar Narender Kumar (R/o as above) 4- Rajesh Kumar through Ashok Kumar Narender Kumar (R/o as above) ..... Petitioners. Versus 1- State of Uttaranchal, 2- M/s Kumar Oil & General Mill, Shyampur (Rishikesh) District Dehradun through Prop. Sri Murlidhar Bhatt, S/o Tulsi Ram Bhatt R/o Shyampur District Dehradun .....Respondents. Sri Rakesh Thapliyal, learned counsel for the petitioners. Sri Nandan Arya, learned A.G.A. fro the State. Sri J.P. Joshi, learned counsel for respondent No. 2 Dated: 18-2-2008 Hon'ble B.C. Kandpal, J. By way of this petition, U/S 482 of the Cr.P.C., the petitioners, have prayed for quashing of the criminal proceedings of criminal case No. 1745 of 2003 (old No. 87 of 1997, 762 of 1999 and 723 of 2001) M/s Kumar Oil and General Mill Shyampur Vs. M/s Ashok Kumar Narender Kumar and others, U/Ss 120-B, 420, 467, 468, 471 I.P.C., pending before Special Judicial Magistrate, II, Dehradun. 2- Brief facts of the case, as per the petition, are that the respondent No. 2 owns a oil Mill at Shyampur Rishikesh. The petitioner M/S Ashok Kumar Narender Kumar is a grain merchant and used to supply mustard. In every sale, 2% sales tax was paid by the retailer. If the retailer does not pay the above tax, the whole-seller has to pay the same. The respondent No. 2 sent form 3-B to the petitioners very late when the petitioners were not available at Haathras and on return the said Form 3-B was deposited in the Sales Tax Office. Later on from the Sales tax Office the applicant came to know that sales tax was levied on the amount of Rs. 5,21,066-91 in place of Rs. 1,61,667-83 and the petitioners were compelled to deposit the same with the Sales Tax Department. Thereafter, the respondent No. 2 filed a complaint against the petitioners. The learned Magistrate recorded the statement of complainant U/S 200 Cr.P.C. and after having satisfied that a case U/Ss 120-B, 420, 467, 468, 471 I.P.C. is made out, took cognizance in the matter vide order dated 27-8-1998. The accused/petitioners filed objection against the above summoning order which was rejected by the learned Magistrate vide exparte order dated 6-9-1999. Petitioners again filed another application for giving opportunity of hearing and pass the order on merit, but the learned Magistrate also rejected the same vide order dated 12-12-2001. Thereafter the petitioners filed revision which was rejected by the Addl. Sessions Judge, F.T.C.-II, Dehradun vide order dated 7- 5-2003. 3- Now the petitioners have approached this court by way of petition U/S 482 Cr.P.C. for quashing of the above orders and the criminal proceedings of the case pending against them. The allegation made in the petition is that the respondent No. 2 made wrong entry in the Form No. 3-B and due to fraud and cheating committed by respondent No. 2 the petitioners had to deposit sales tax on the amount of Rs. 5,21,066-91. It is also alleged in the petition that after about 11 years complaint was lodged which is time barred and the continuance of the proceeding against the petitioners is abuse of process of Court. 4- The respondent No. 2 has filed the counter affidavit and denied the allegations made in the petition. It has been alleged in the counter affidavit that the petitioners had charged the sales tax on the price of mustard supplied to him and obtained Form No. 3-C for exemption and refund of sales tax. The petitioners also took Form No. 3-B from the respondent after obtaining his signature on the assurance that as the amount of sales tax has been charged by them and they will deposit the said tax amount in the department. But the petitioners neither deposited the said tax with the department nor sent the From 3-C intentionally in order to cheat the respondent and to cause wrongful loss and to obtain unlawful gain and misused the Form 3-B. Thereafter, the sales tax department issued tax recovery against the complaint/respondent, whereupon he issued registered notice to the accused/petitioners on 29-12- 1996 and the accused/petitioners sent duplicate Form 3-C and when the said From 3-C was handed over to the Sales Tax Department, then it was informed that the said Form 3-C is fake document. 5- Heard the learned counsel for the parties and perused the material on record. 6- After having considered the submissions of the learned counsel for the parties, I am of the positive view that no abuse of process of court has been committed in the instant case. Perusal of the complaint revels that it is the assertion of respondent No. 2 that he had deposited the relevant tax with the petitioners and the petitioners did not pay the same to the Sales Tax Department and on his asking the petitioners issued duplicate of From No. 3-C which was a fake document. It has also been averred in the complaint that the accused/petitioners hatched conspiracy in order to obtain wrongful gain and to harm the respondent/complaint by making interpolation in Form-B and added sale of Rs. 521077-19 whereas the supply of the mustard was made to some other party. It is also alleged in the complaint that the duplicate Form 3-C issued by the petitioners was found to be fake document by the Sales Tax Department. It is further alleged in the complaint that on 22-7-1996 the accused/petitioners has given false certificate to the Assistant Commissioner Sales Tax Haathras to the effect that the accused No. 1 made purchase of mustard amounting to Rs. 5,21,066-19 on From 3-B to the firm of the complainant on which tax@ 2% was deposited by M/S Ashok Kumar Narender Kumar and the tax of complainant is not deposited. In paragraph-3 of the counter affidavit the complainant/respondent No. 2 has reiterated the facts mentioned in the complaint. 7- In view of the above facts mentioned in the complaint as well as in the counter affidavit filed by the complainant/respondent No.2, I come to the conclusion that disputed questions of fact are involved in the instant case which cannot be judged by me in the petition U/S 482 Cr.P.C. where the evidence is still hazy and incomplete. I am not supposed to embark upon an inquiry with regard to reliability of the evidence adduced at the time of taking cognizance in the matter. The learned Magistrate after considering the evidence and documents adduced before it, was satisfied that a prima facie case is made out to summon the accused/petitioners to face trial U/Ss 120-B, 420, 467, 468, 471 I.P.C. I do not find any infirmity and illegality in the summoning order as well as the order passed by the revisional court, whereby the revision was dismissed. 8- For the aforesaid reasons the petition lacks merit and is liable to be dismissed. 9- Accordingly, the petition is dismissed. The interim order dated 31-12-2003, stands vacated. (B.C. Kandpal, J.) ISB