IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application (C-482) No. 395 of 2005 1. Nadeem Ahamad S/o Jameel Ahamad Resident of Pichari Bazaar, Tallital. 2. Shahjad Ahamad s/o Jameel Ahamad Resident of Pichari Bazaar, Tallital. 3. Shahnawaj Ahamad s/o Jameel Ahamad Resident of Pichari Bazaar, Tallital, District Nainital. ...…………. Petitioners Versus 1. State of Uttaranchal / State of Uttarakhand 2. Smt. Mahmood Jahan R/o M/s Venus Garments Tallital, Nainital. ...…………. Respondents Mr. Ajay Singh Bisht, Advocate for the petitioners. Mr. G.S. Sandhu, Govt. Advocate along with M.A. Khan, Brief Holder for the state / respondent No. 1. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), the petitioners have sought quashing of the order dated 28.01.2005, passed by the Chief Judicial Magistrate, Nainital, in Criminal Case No. 279 of 2005, whereby said court has summoned the accused (present petitioners) in respect 2 of offences punishable under Section 406 / 506 of I.P.C., police station Tallital, District Nainital. 2) Heard learned counsel for the parties, and perused the papers on record. 3) First information report lodged by respondent No. 2 / complainant Smt. Mahmood Jahan shows that one Ahtesham Ahmad along with his brother petitioner No. 3 Shahnawaj Ahmad used to run a shop in the name and style ‘Naini Mutton Chicken Shop’ at Pichari Bazaar, Haldwani Road, Tallital, Nainital. They proposed to set up a committee based on cooperation of the members, and invited contributions from the members of the public. The complainant’s case is that she made deposits with said committee of Rs. 9,600/- on 23.11.2001 and Rs. 7,967/- on 13.09.2002. She has pleaded that there were 15 members in the committee. After 12 months the amount payable to her (complainant) was Rs. 1,20,000/-, but at that stage when the amount was demanded, Ahtesham Ahmad and the accused refused to repay the amount, as such, offence of criminal misappropriation was committed. She lodged the first information report on 12.05.2004, which was registered as Crime No. 483 of 2004, at police station Tallital. After investigation, the police submitted charge sheet against he present petitioners and Ahtesham Ahmad, on which the Chief Judicial 3 Magistrate, summoned the accused (including the petitioners). 4) Learned counsel for the petitioners submitted that there is no role of the petitioners in commission of the crime. It is further pleaded that the petitioners are innocent. Relying on the case of State of Haryana Vs. Bhajan Lal (1992) Supreme Court Cases (Cri) 426, it is contended that the criminal proceedings initiated against the petitioners are liable to be quashed. 5) Having considered submissions of learned counsel for the parties and after going through the papers on record, this Court is of the view that whether the petitioners are innocent or not, is the question of fact which can be seen by the trial court, after recording the evidence. From the statement recorded under Section 161 of Cr.P.C. of the complainant (copy of which is Annexure –3 to the petition) it is evident that there are specific allegations against the petitioner No. 3 Shahnawaz Ahmad that he had received the amount of Rs. 6,634/- on 13.10.2001, Rs. 9,600/- on 23.11.2001 and Rs. 7,034/- of 15.01.2002. Apart from this an amount of Rs. 7,434/- was also said to have been taken by him from the complainant on 13.03.2002. She has stated in her statement that she is in possession of the receipts of the payments. In the above circumstances, it is for the trial court to see after recording the evidence of the parties as to what extent present petitioners are 4 responsible in the crime, alleged to have been committed by them, in the complaint. I do not find it a case where the proceedings are required to be quashed under Section 482 of Cr.P.C., as it requires factual evidence which is yet to come before the trial court, in the matter. 6) In the above circumstances, without expressing any opinion as to the final merits of the case, this Court is of the view that it is not a fit case to interfere with the impugned order, whereby the petitioners are summoned by the Magistrate. Therefore, the petition under Section 482 of Cr.P.C. is dismissed with the observation that if the petitioners, namely petitioner No. 1 Nadeem Ahmad and petitioner No. 2 Shahjad Ahmad surrender before the court concerned, their bail application shall be heard and disposed of without unreasonable delay. Interim order dated 29.09.2005, passed by this Court, stands vacated. (Prafulla C. Pant, J.) Dt. May 17, 2010. H. Negi