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2017 DIGILAW 309 (UTT)

VIRENDRA MOHAN UNIYAL v. STATE OF UTTARAKHAND

2017-06-06

U.C.DHYANI

body2017
JUDGMENT U.C. Dhyani, J. (Oral) By means of present application, under Section 482 Cr.P.C., the applicant seeks to quash the charge sheet dated 25.02.2010, summoning order dated 06.04.2010, as also the entire proceedings of criminal case no. 849 of 2010, State vs. Virendra Mohan Uniyal, under Sections 420, 467, 468, 471, 120B IPC, pending in the court of Chief Judicial Magistrate, Dehradun. 2. Brief facts of the case, giving rise to present application under Section 482 Cr.P.C., are that one Sri G.N. Kathpalia, P.N. Kathpalia, both r/o E-190, Greater Kailash Colony II, New Delhi and one Sri Ashok Kathpalia r/o S-45, Greater Kailash, New Delhi were the owners of property no. 38, E.C. Road, Dehradun on the basis of a registered sale deed dated 06.09.1957 executed in their favour by Her Highness Maharani Urmila Devi w/o Highness Maharana Sri Pratap Singh Malvendra Bahadur Nabha. On 19.07.1990, G.N. Kathpalia executed a power of attorney regarding 700 sq. mt. land of property no. 38, E.C. Road, Dehradun in favour of Harmindra Singh s/o Trilok Singh r/o 15-B, Rajpur Road, Dehradun. The said power of attorney was cancelled by G.N. Kathpalia vide cancellation deed dated 15.06.1992. Despite the cancellation deed dated 15.06.1992 as well as cancellation of power of attorney, Sardar Harmindra Singh executed a lease deed regarding the property mentioned in the power of attorney in favour of his wife Smt. Kiran showing her a tenant at the rate of Rs. 10/- per annum w.e.f. 30.06.1983. 3. Sri Ashok Kathpalia sold his 6 Bigha land of property no. 38 E.C. Road, Dehradun adjoining the property no. 36, E.C. Road, Dehradun to the applicant and executed power of attorney in favour of applicant and also executed a Will dated 16.09.1999 in favour of the applicant. The said Will was notarized by Notary Public Dehradun on 14.10.1999. Thereafter, Ashok Kathpalia expired on 01.10.2000 and applicant became the owner of property i.e. 6 Bigha land of property no. 38 E.C. Road, Dehradun, on the basis of Will and power of attorney in which the applicant is still in possession over the said land. G.N. Kathpalia and P.N. Kathpalia also cancelled the power of attorney which was executed in favour of Harmindra Singh and executed power of attorney in favour of applicant regarding the property no. 38, E.C . 38 E.C. Road, Dehradun, on the basis of Will and power of attorney in which the applicant is still in possession over the said land. G.N. Kathpalia and P.N. Kathpalia also cancelled the power of attorney which was executed in favour of Harmindra Singh and executed power of attorney in favour of applicant regarding the property no. 38, E.C . Road, Dehradun as Harmindra Singh played fraud with them and Sri Ashok Kathpalia also cancelled the power of attorney executed in favour of Harmindra Singh and his wife Kiran Kaur. The aforesaid property was purchased by the applicant from G.N. Kathpalia, P.N. Kathpalia and Ashok Kathpalia, but Sardar Harmindra Singh tried to sold the aforesaid land to some other person then applicant made a complaint before the A.D.M.(F), Dehradun on 14.01.2005. Opposite Party no. 2 s/o Sardar Harmindra Singh moved an application under Section 156(3) Cr.P.C. against the applicant and one other in the court of C.J.M., Dehradun and on directions of said court, an FIR under Sections 420, 467, 468, 471, 120B IPC was registered against the applicant and co-accused Subey Singh as case crime no. 30 of 2009, at P.S. Dalanwala, Dehradun on 28.01.2009. Against said FIR, dated 28.01.2009, applicant filed a criminal writ petition no. 1082 of 2009 before this Court, and the Court vide order dated 15.12.2009, stayed the arrest of the petitioner. 4. The allegation against the present application in a nutshell, is that he made a forged Will and with the help of said forged Will got succeeded in getting the property mutated in his favour in the records of Nagar Nigam, Dehradun. 5. After investigation, police submitted charge sheet against the applicant and other co-accused under Sections 420, 467, 468, 471, 120B IPC. After submission of charge sheet, learned C.J.M., Dehradun summoned the applicant vide order dated 06.04.2010, for facing the trial in respect of selfsame offences. Feeling aggrieved against the same, present application under Section 482 Cr.P.C. has been filed by the accused-applicant. 6. After submission of charge sheet, learned C.J.M., Dehradun summoned the applicant vide order dated 06.04.2010, for facing the trial in respect of selfsame offences. Feeling aggrieved against the same, present application under Section 482 Cr.P.C. has been filed by the accused-applicant. 6. Hon'ble Apex Court in Amit Kapoor vs. Ramesh Chander and another, (2013) 1 SCC (Cri) 986, 2013 (1) NCC 1 , has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the un-controverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists. 7. There appears to be no illegality in the order under challenge. No interference is called for in the same at this stage, as would also be evident from the law laid down by Hon'ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 . Para 28 of the said ruling is reproduced here-in-below for convenience: “28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused in successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused in successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held." 8. Judging by the same yardstick, the Court does not find any merit in the grounds which have been taken on behalf of the applicant in present application under Section 482 Cr.P.C. The Court need not reproduce those grounds which have been taken by the applicant, as the same are part of the record. 9. The Court was taken through the contents of FIR. From a bare perusal of FIR, it is apparent that foundation of criminal offence is laid against the present applicant in the instant case. Criminal proceedings pending against him, therefore, should not be quashed. The jurisdiction under Section 482 Cr.P.C. should not be exercised to stifle or scuttle the legitimate prosecution. 10. It is also the settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The applicant, in the instant case, is unable to pass those tests. 11. The application under Section 482 Cr.P.C. is dismissed. Liberty is, however, granted to the applicant to place all the factual pleas before the trial court for securing his discharge/acquittal, at an appropriate stage.