IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application (C-482) No. 467 of 2006 Ganga Saran Jayant S/o late Shankar Singh Presently posted as Branch Manager Central Bank of India, Ramnagar, District Nainital. ...…………. Petitioner Versus 1. Judicial Magistrate / Addl. Civil Judge (J.D.), Kashipur, District Udham Singh Nagar. 2. Sarjeet Singh S/o Hazara Singh R/o Village Etawwa, P.S. Bajpur, District Udham Singh Nagar. 3. Buddha Singh S/o Harnam Singh R/o Village Etawwa, P.S. Bajpur, District Udham Singh Nagar. 4. State of Uttarakhand ...…………. Respondents Mr. B.D. Kandpal, Advocate, present for the petitioner. Mr. S.S. Adhikari, A.G.A., present for respondents No. 1 and 4. None present for the complainant / respondent No. 2. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), the petitioner has sought quashing of order dated 05.04.2006, passed by respondent No. 1, in Criminal Case No. 10 of 2006; State Vs. Buddha Singh, 2 relating to offence punishable under Section 420 of I.P.C., police station Bajpur, pending in the court of Addl. Civil Judge (Junior Division) / Judicial Magistrate, Kashipur, District Udham Singh Nagar. 2) Heard. 3) Brief facts of the case are that respondent No. 2 / complainant Sarjeet Singh (P.W. 1), moved an application under Section 156(3) of Cr.P.C. before Additional Civil Judge (Junior Division) / Judicial Magistrate, Kashipur, alleging that the accused Buddha Singh transferred his land in Khasra No. 245, situated in Village Etawwa, on 20th of May 2005, to him. Subsequently, since the mutation was yet to take place, on 26.07.2005, in connivance in other accused, Buddha Singh obtained a loan from Central Bank of India, Branch Ramnagar, District Nainital, mortgaging the land with the bank. Under orders of the Magistrate, the police registered a first information report against Buddha Singh (respondent No. 3), Jagir Singh, Mahendra Singh, and Branch Manager of Central Bank of India. However, after investigation, the police found that offence of cheating punishable under Section 420 of I.P.C., was made out only as against accused Buddha Singh, and accordingly filed the charge sheet, for his trial in respect of said offence. During trial P.W. 1 Sarjeet Singh got himself examined. The trial court, after considering his statement, summoned Jagir Singh, Mahendra Singh and 3 the present petitioner Ganga Saran Jayant, who was Branch Manager of Central Bank of India, Ramnagar, as an accused in the aforesaid case, exercising powers under Section 319 of Cr.P.C. Hence, this petition. 4) On going through the statement of P.W. 1 recorded on 17.03.2006, by the trial court (copy of which is Annexure –11 to the petition) it is clear that the complainant has stated that he purchased land for `6,00,000/- on 20th of May 2005, from Buddha Singh. He has further stated that accused Buddha Singh in connivance with Jagir Singh and Mahendra Singh has taken loan from the Central Bank of India, and mortgaged the land, which had already been sold by him. It is further stated by P.W. 1 Sarjeet Singh that Jagir Singh and Mahendra Singh are brothers-in-law of Buddha Singh, and they stood guarantors in said loan. The allegation against the Branch Manager of Central Bank of India is only that even after making complaint to said authority no action was taken in the matter. It appears that merely on that statement petitioner has been summoned by the trial court vide impugned order dated 05.04.2006. 5) Section 420 of I.P.C. provides punishment for cheating. For the purposes of constituting offence of cheating element of deception is necessarily required. In the present case, from the statement of P.W. 1 Sarjeet Singh it has not come out as to what offence was 4 committed by the Branch Manager of the Central Bank of India, who sanctioned the loan. The witness has nowhere stated that his name was recorded in the revenue record, and the loan was sanctioned to the transferor, and mortgage was accepted. Perusal of the first information report also discloses that the Manager was negligent in sanctioning the loan. Annexure –6 to the petition, which is copy of the Khatoni, shows that in the revenue record name of Buddha Singh (respondent No. 3) was still shown as bhumidhar in respect of land which was mortgaged by him. As such, accused Buddha Singh might have committed cheating, but the same cannot be said as against the present petitioner. It is nowhere stated by any witness that the Branch Manager of the Bank had knowledge that the land was owned by the complainant, on the date when the loan was sanctioned. 6) In the above circumstances, even if what has been stated by P.W. 1 Sarjeet Singh in his examination-in- chief, is taken to be true, the evidence adduced does not appear to be sufficient to exercise powers under Section 319 of Cr.P.C. by the trial court to summon the petitioner, who is Branch Manager of Central Bank of India, to face the trial in respect of offence punishable under Section 420 of I.P.C. It is abuse of process of law on the part of the trial court to summon the petitioner in the above facts and circumstances of the case. 5 7) Therefore, the petition under Section 482 of Cr.P.C., is allowed, so far as the summoning order relates to the present petitioner Ganga Saran Jayant. The impugned order dated 05.04.2006 is quashed to the extent petitioner Ganga Saran Jayant is summoned under Section 319 of Cr.P.C. However, it is made clear that this court is not inclined to interfere with the impugned order with regard to the other two accused, namely Jagir Singh and Mahendra Singh (alleged brothers-in-law of Buddha Singh, who stood guarantors in respect of loan taken by Buddha Singh, mortgaging the land already sold by him to the complainant). The trial against present petitioner Ganga Saran Jayant stands quashed, but the trial court may proceed with the trial as against accused Buddha Singh and the other two persons, namely Jagir Singh and Mahendra Singh, summoned vide order dated 05.04.2006. Registry is directed to inform the court concerned, accordingly. (Prafulla C. Pant, J.) Dt. September 18, 2010. H. Negi 6