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2011 DIGILAW 604 (UTT)

APARNA v. STATE OF UTTARAKHAND

2011-09-26

SERVESH KUMAR GUPTA

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JUDGMENT Hon’ble Servesh Kumar Gupta, J.: By way of this Criminal Misc. Application, a prayer has been made to quash the entire proceedings of criminal complaint case no. 2470 of 2003 (old number 644 of 2002) pending in the court of Special Judicial Magistrate, Dehradun. It has also been prayed to set aside the order of cognizance dated 16.06.2005 passed by the Magistrate. 2. No counter affidavit has been filed by the respondent no. 2, despite several opportunities. 3. Heard learned counsel for the parties. It appears that an FIR was lodged by Tusar Dutt Sharma (opposite party no. 2) on 19.10.2001 raising many allegations constituting the offence under sections 420, 467, 468, 471, 406, 506 IPC against applicants Aparna Sharma and her husband Pervind Kumar Sharma. Investigation was made, which resulted in the submission of the final report on dated 14.05.2002, the crime number of the case was mentioned as criminal case no. 701 of 2001. 4. The Investigating Officer has opined that no offence of either of sections is made out against the applicants and the matter between duo pertains to differences arose out of business transactions, which they entered. This final report was accepted by court concerned on 13.07.2004. Without waiting for the result of the investigation, Tusar Dutt Sharma filed a complaint, stated above on 17.04.2002 with the same facts and allegations, as were contained in the FIR. He got his statement recorded under section 200 Cr.P.C. on 30.05.2002 and statements of his witnesses Rupa Sharma and Amarjeet Kaur under section 202 Cr.P.C. were recorded on 04.07.2002. The Special Judicial Magistrate having gone through the facts of the complaint and the statements of complainant and his witnesses passed the impugned order of cognizance on 16.06.2005. 5. It is significant to mention that complaint could not have been filed during the pendency of the investigation. What was desirable to Tusar Dutt Sharma, was to ask the progress of the investigation through the concerned court. Yet, after submission of the final report, in case, he was not satisfied with the same, then he could have resisted the result of the investigation submitted in the form of final report by way of filing protest petition or could have filed a complaint. But this complaint was filed prematurely before the investigation reached to any conclusion with the same facts and figures, which made the contents of the FIR. But this complaint was filed prematurely before the investigation reached to any conclusion with the same facts and figures, which made the contents of the FIR. So firstly, this complaint was in violation of the relevant provisions of the Code of Criminal Procedure. 6. On merits, after hearing the learned counsel for the parties and going through the allegations, it appears that both the parties entered into an agreement regarding some business transactions and in the course of the said business transaction, the applicants even made payment of Rs. 2,28,000/- to Tusar Dutt Sharma, which is an admitted fact. However, some differences cropped up between the two and it is alleged that Aparna Sharma along with her husband Pervind Kumar Sharma went to the residence of Tusar Dutt Sharma in his absence. They asked mother of Tusar Dutt Sharma to produce copy of the agreement in original and made some manipulations therein. It is admitted fact that this agreement was returned to mother of Tusar Dutt Sharma at that very time and this agreement was not used thenceforth with manipulations, if any. So it comes out that there was neither any cheating nor any wrongful gain or wrongful loss to the concerned parties. 7. All told, the order of cognizance passed merely on the basis of ex parte statement of witnesses does not hold water. It appears to be quite unsubstantial and liable to be quashed. 8. The petition is allowed. The order of cognizance dated 16.06.2005 and the entire proceedings of complaint case no. 2470 of 2003 (old number 644 of 2002) pending in the court of Special Judicial Magistrate, Dehradun are hereby quashed.