IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPLICATION NO.702 OF 2010 (U/s 482 Of Cr.P.C.) Dharmesh Kumar & others …………Applicants Versus State of Uttarakhand & another …………Respondents Dated: August 3, 2010 Sri Parikshit Saini, Adv. for the applicants Sri Amit Bhatt, Addl. GA for the State/respondent no.1 Sri Arvind Vashisth, Adv. for respondent no.2 HON. DHARAM VEER, J. This criminal application, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed for quashing the order dated 21.6.2010 and the entire proceedings in Criminal Case No.3946 of 2010, State Vs. Avdhesh & others, U/s 420/467/468/471/193/323/506 IPC, pending before CJM, Haridwar. Heard learned counsel for the parties and perused the material on record. In brief, the facts of the case are that respondent no.2 lodged an FIR that her husband Hitesh Kumar had expired on 21.2.2000 and since then she is the legal successor of her husband. However, the petitioners and co-accused Avinash (now died), in order to get undue advantage, shown that Hitesh Kumar died unmarried and by fabricating the forged and fake documents, got their names mutated in the land Khasra No.2237, Village Jwalapur vide Suit No.212 of 2000 before the court of Tehsildar, Haridwar, however this fact was very well in their knowledge that the complainant is the widow of Hitesh Kumar and thus the petitioners cheated the complainant. It was also stated that in another case no.19/99, the court of Civil Judge (S.D.) Haridwar held the complainant to be the legal heir of deceased Hitesh Kuamr and in the criminal revision no.138/2004 which was dismissed on 19.1.2006, she was held to be the legal heir of Hitesh Kumar. It was also stated that 2 thus the petitioners and co-accused have committed forgery upon the complainant. When she came to know about this fact on 10.11.2008, she demanded her rights on which the petitioners Avdhesh and Dharmesh used to threat her to her life. On 5.5.2010 also, the petitioners Avdhesh and Dharmesh committed Marpit with her and made her go away by giving threat to her life. With these averments the FIR was lodged on 6.5.2010 at PS Jwalapur, Distt. Haridwar on the basis of which a case crime no.136/2010 u/s 420/467/468/471/323/506 IPC was registered against the petitioners. After that the matter was investigated and on completing the investigation, the IO filed the charge sheet against the petitioners u/s 420/467/468/471/193/323/506 IPC, on the basis of which learned CJM, Haridwar vide order dated 21.6.2010 took cognizance and summoned the petitioners under the aforesaid sections to face trial. Hence this petition. A counter affidavit has been filed by respondent no.2 in which it is stated that the petitioners with a oblique motive of grabbing the property of the complainant, moved a mutation application before the Tehsildar, Haridwar which was registered as Case No.212/2000 with false and frivolous assertions and they also gave statements on oath before the Tehsildar that their brother Hitesh Kumar (husband of complainant) was not married and was issue less. Thus they by playing a fraud, got mutation in their favour in respect of the property of late Hitesh Kumar to whom the complainant is successor. The said fact is established from the order of Tehsildar dated 2.5.2000, which was recalled after moving application by the complainant vide order dated 16.3.2010. It has also been stated that during the pendency of the recall/restoration application moved by the complainant, the petitioners further in the garb of order dated 2.5.2000 have sold out the property including the property of the answering respondents to several persons vide several deeds. Thus the ill intention and fraud committed by the petitioners is apparent on the face of record. In paragraph 7 of the affidavit, it is stated that the petitioners committed a fraud by practicing forgery, manufacturing the forged document, misappropriated the property without any authority of law and committed the offences. The petitioner no.3, who is a Municipal Corporate, colluded with the petitioner no.1 and 2 and also hatched conspiracy to commit the crime 3 and cooperated the petitioners 1 and 2 in committing the offence by manipulating the forged documents of false evidence led before Tehsildar and the petitioners, who had themselves lodged the FIR against the respondent no.2 with the allegations that she abetted to suicide her husband, cannot say that Hitesh, the brother of petitioners was unmarried and issuless. On the other hand the petitioners manipulated the forged will which was made part of the case diary. Sri Parikshit Saini, learned counsel for the petitioners firstly argued that the trial court has summoned the petitioners u/s 193 I.P.C. which provides for Punishment of false evidence. He further argued that if any statement was made on oath before the court of Tehsildar Haridwar, in that case only the Tehsildar was empowered to report the same. I find force in this argument advanced by the counsel for the petitioner inasmuch as in the instant case, there is no complaint in writing of the court of Tehsildar or by such Officer of the said court of Tehsildar but it is the statement on oath which was alleged to be false. However, the I.O. has filed the charge sheet u/s 193 IPC on the basis of which the court took cognizance u/s 193 IPC and summoned the petitioners. As such, in view of the provisions of Section 195(1)(b)(i) Cr.P.C., it is held that no cognizance can be taken except on complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing. Therefore, I find that the summoning order passed by the court below for summoning the petitioners u/s 193 IPC cannot be sustained and is accordingly quashed to this extent. Learned counsel appearing for the petitioners next argued that the rest of the offences are also not made out against the petitioners. Sri Arvind Vashisth, learned counsel appearing for the respondent no.2 vehemently argued that the rest of the offences are fully made out against the petitioners and they have rightly been summoned. I find force in this argument advanced by learned counsel for the respondent no.2 inasmuch as in the instant case the petitioners committed cheating upon the respondent no.2 thereby preparing a forged and fabricated will fraudulently on the basis of which they got themselves mutated in the property without any authority of law as Case No.212/2000. The said order of mutation in favour of petitioners was 4 recalled after moving application by the respondent no.2 before the Tehsildar vide order dated 16.3.2010. It is pertinent to mention here that during the pendency of the recall/restoration application moved by the complainant, the petitioners in the garb of the order dated 2.5.2000, sold out the property including the property of the complainant to several persons. Thus the ill intention and fraud committed by the petitioners is apparent on the face of the record. Further the petitioner no.3 colluded with the petitioners 1 and 2 and also hatched conspiracy to commit the crime and cooperated the petitioners 1 and 2 in committing the offence by manipulating the forged documents. Accordingly I find that at this stage the offences punishable under Sections 420/467/468/471/323/506 IPC prima facie made out against the petitioners and they have rightly been summoned by the trial court to face trial. On the other hand, the trial court will decide the case after recording the evidence of the complainant as well as that of the accused persons and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under section 482 of the Cr.P.C., this Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial court. If the allegations made in the FIR as well as the statements of witnesses are taken at their face value and accepted in their entirety, I am of the view that the petitioners have rightly been summoned by the trial court. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of court. For the reasons recorded above, C482 petition is partly allowed. The proceedings u/s 193 IPC against the petitioners are quashed, however so far as the offences punishable under Sections 420/467/468/471/323/506 IPC are concerned, the trial court shall proceed as per law. (Dharam Veer, J.) August 3, 2010 Rdang