IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application(C482) No.714 of 2005 Dr. Rishipal Singh S/o Late Chaudhary Ratan Singh R/o Pali Clinic, Main Road, Bazpur District Udham Singh Nagar ………..…Petitioner Versus 1. State of Uttaranchal (Uttarakhand) 2. Jagannath Karigar S/o Shri Shiv Charan R/o Moh. Bhawaniganj, P.S. Ramnagar District Nainital ....……Opposite Parties Shri B.S. Parihar, Advocate, present for the petitioner. Shri Bharat Tiwari, Advocate, present for the complainant/respondent no.2 Hon’ble Prafulla C. Pant, J. By means of this petition moved under section 482 of Code of Criminal Procedure 1973 (for short Cr.P.C.), the petitioner has sought quashing of the proceedings of criminal complaint -2- case No. 2153 of 2004, Jagannath Karigar vs. Tajendra Pal Singh, relating to offences punishable under section 323, 504, 506, 406, I.P.C., pending in the court of Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Kashipur. 2. Heard learned counsel for the parties. 3. Brief facts of the case are that the respondent no.2 Jagannath Karigar filed the criminal complaint before the trial court against the petitioner Dr. Rishipal Singh and one Tajendra Pal Singh with the allegation that on 17.11.2003, marriage of the petitioner Dr. Rishipal Singh was fixed in which the complainant Jagannath Karigar agreed to work for Rs. 25,000/-. It is pleaded in the criminal complaint that the said contract was given to the complainant through Tajendra Pal Singh of Bharat Tent House, Kaladungi Road, Bazpur (co-accused in the criminal complaint). It is alleged by the complainant that only Rs. 2000/- were paid and Rs. 23,000/- were outstanding. It is further alleged that when the complainant approached Tajendra Pal Singh of Bharat Tent -3- House and Dr. Rishipal Singh (petitioner) for his payment, he was assaulted and insulted by hurling abuses at him. In the criminal complaint it is also mentioned that Rajendra S/o Phool Singh , and Sompal intervened and separated the parties. The trial court after recording the statement of the complainant under section 200 and that of the witnesses under section 202 Cr.P.C., summoned both accused namely Dr. Rishipal Singh (petitioner) and Tajendra Pal Singh to face the trial in respect of offences punishable under section 323, 504, 506, 406 IPC. The petitioner Dr. Rishipal Singh has challenged summoning order and the proceedings in the criminal complaint stating that neither CW1 Rajendra nor CW2 Sompal has stated that the petitioner Dr. Rishipal assaulted the complainant or hurled any abuses at him. It is further pointed out that on the day of incident dated 25.07.2004, Dr. Rishipal Singh was not in the State of Uttarakhand, and working at Lucknow. It is also pleaded that ingredients for the offence punishable under section 406 IPC are also not made out. 4. I have gone through the statement of -4- complainant recorded under section 200 Cr.P.C., and that of witnesses Rajendra and Sompal recorded under section 202 Cr.P.C. None of the witnesses namely CW1 Rajendra Singh and CW2 Sompal, has anywhere stated that Dr. Rishipal (petitioner) ever assaulted the complainant or insulted him by hurling abuses at him. The said allegations are made by the two witnesses only as against co-accused Tajendra Pal Singh of Bharat Tent House. As such, the trial court has wrongly summoned Dr. Rishipal Singh in respect of offence punishable under section 323, 504, 506 IPC without perusing the evidence on record. 5. As far as the offence punishable under section 406 IPC is concerned, it provides punishment for criminal breach of trust. There is not a single word in the criminal complaint that any property was entrusted by the complainant either to Dr. Rishipal (petitioner) or to Tajendra Pal Singh of Bharat Tent House, nor is there any evidence either in the statement of the complainant (under section 200 Cr.P.C) or that of the witnesses (recorded under section 202 Cr.P.C.) on this point. As such, even if, the allegations -5- made in the complaint and the statement are taken to be true the ingredients of the offence punishable under section 406 IPC are not made out. 6. In the above circumstances, and for the reasons as discussed above, this petition under section 482 of Cr.P.C., is allowed. The proceedings against the present petitioner Dr. Rishipal in the criminal complaint case no. 2153 of 2004, Jagannath Karigar vs. Tajendra Pal Singh, and other, relating to offences punishable under section 323, 504, 506, 406, I.P.C., pending in the court of Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Kashipur, are hereby quashed. However, it is made clear that the trial court may proceed as against accused Tajendra Pal Singh in respect of offence punishable under section 323, 504, and 506 IPC. The interim order dated 19.10.2005, is hereby vacated. Registry is directed to inform the court concerned. (Prafulla C. Pant, J) Dt. 19.08.2010 Parul