IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application(C482) No.464 of 2005 1. Naresh Kumar Agrawal S/o Shri Ved Prakash Agrawal 2. Vikas Agrawal S/o Shri Manmohan Swaroop Agrawal Both R/o G-234, Preet Vihar, Delhi ………..…Petitioners Versus 1. State of Uttaranchal (Uttarakhand) 2. Sanjeev Jain, S/o Shri Rajendra Kumar Jain R/o 110, Tagore Villa, Dehradun District Dehradun 3. M/s K. Associates, 110, Tagore Villa, Dehradun, District Dehradun throught its proprietor Sanjeev Jain ....……Opposite parties Shri R.P. Nautiyal, Advocate, present for the petitioners. Shri B.S. Parihar, Advocate, present for the State None present for the complainant. Hon’ble Prafulla C. Pant, J. By means of this petition moved under section 482 of Code of Criminal Procedure 1973 -2- (for short Cr.P.C.), the petitioners have sought quashing of the proceedings of criminal complaint case No. 199 of 2004, Sanjeev Jain & another vs. Apoorva Kumat & others, relating to offences punishable under section 409, and 420 I.P.C., pending in the court of Judicial Magistrate, (CBI), Dehradun. 2. Heard learned counsel for the petitioner and learned counsel for the State. None was present for the complainant, at the time of final hearing. 3. Brief facts of the case are that complainants/respondents no. 2-3 filed criminal complaint against eight accused including present petitioners with the allegations that accused Apoorva Kumat, Naresh Kumar Agrawal, Vikas Agrawal, Yogesh Jain, Amit Kumat, Sandeep Jain, Sudhir Kumar Kumat, are running business in the name of HELLO AGRO FOOD PRODUCTS LTD (for short HAFPL). It is further alleged in the criminal complaint that said accused are directors of the company. It is alleged that in March, 2001, the representatives of the accused came to -3- Dehradun to the complainant and allured him to part with rupees three lac as earnest money to take agency of HAFPL, on which the complainant agreed and made payment through draft no. 439419 dated 08.03.2001, and draft no. 439433 dated 12.03.2001, and entered into an agreement with the company run by the accused. It is further alleged by the complainant that the accused after receiving the amount did not settle the account, and the complainant got cheated. It is further alleged that the accused have misappropriated the amount taken from the complainant. On said complaint, the trial court after recording statement of the complainant under section 200 Cr.P.C., and that of witness Salim Ahmad under section 202 Cr.P.C., summoned the accused including petitioners to face the trial in respect of offences punishable under section 409, and 420 IPC vide order dated 08.10.2002, passed by Chief Judicial Magistrate, Dehradun. Hence this petition. 4. Learned counsel for the petitioners submitted that petitioners are not the public servants as such ingredients of the offence punishable under section 409 IPC are not made out. Having gone -4- through the criminal complaint and statement of the complainant and witnesses recorded under section 200 Cr.P.C., and 202 Cr.P.C., this Court agrees that there is nothing on the record which shows that petitioners are public servants as such, even if the allegation made in the criminal complaint are taken to be true, they could not have been summoned in respect of offence punishable under section 409 IPC. 5. It is further contended on behalf of the petitioners that the petitioners Naresh Kumar Agrawal, and Vikas Agrawal are not the directors of the company. On its basis it is argued that as against the present petitioners even offence punishable under section 420 IPC is not made out. It is pointed out that petitioners are residents of Delhi while other accused belong to Madhya Pradesh. Said plea that the petitioners are not directors of HAFPL is denied in the counter affidavit filed on behalf of the complainant/respondent no.2 in the year 2006. Since it is a disputed question of fact whether the petitioners are directors of HAFPL or not, it is not desirable on the part of this Court to give its -5- opinion on the basis of half baked evidence before it. It is for the trial court to examine the witnesses and to come to the conclusion as to whether the present petitioners are directors of HAFPL or not, and whether they are innocent or not. 6. For the reasons as discussed above, this petition under section 482 of Cr.P.C., is partly allowed. The proceedings against the accused in criminal complaint case no. 199 of 2004, Sanjeev Jain & another vs. Apoorva Kumat & others, pending in the court of Judicial Magistrate, (CBI), Dehradun, are hereby quashed, only to the extent of offence punishable under section 409 IPC. As to the offence punishable under section 420 IPC, without giving any opinion as to the final merits of the case, this petition is dismissed. If the petitioners Naresh Agrawal and Vikas Agrawal surrender before the court concerned their bail application shall be heard and disposed of without unreasonable delay. Interim order dated 29.07.2005, stands vacated. Registry is directed to inform the court concerned. (Prafulla C. Pant, J) Dt. 19.08.2010 Parul