C482/225/2003 of TILAK RAJ GUPTA and ANR. Vs STATE and ANR.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 225 of 2003

1. Tilak Raj Gupta,

S/o Shri Hans Raj Gupta,

R/o B-2/80, Safdarjung Enclave,

New Delhi

2. Gyan Prakash Chopra,

S/o Shri P.N. Chopra,

R/o B-217, Ashok Vihar,

New Delhi-52

……….…..Applicants

Versus

1. State of Uttaranchal

2. Virender Kumar Shastri,

S/o Late Shri Jhabu Singh,

R/o Vedic Mohan Ashram,

Kharkhari, Haridwar,

District Haridwar.

……………..Opposite Parties

Mr. Pankaj Miglani, Advocate, for the petitioners. Mr. Sanjeev Singh, Advocate, for the respondent No.2.

Hon'ble Prafulla C. Pant, J.

This is Application No. 839 of 2009, for restoration of C482 Petition No. 225 of 2003, which was dismissed for non-prosecution on 07.12.2009.

2. Heard.

3. The application is within time. Ground for absence is sufficiently explained in the affidavit filed by Mr. Pankaj Miglani, Advocate, himself and also the affidavit of Mr. Tilak Raj Gupta (one of the petitioners). In view of

the principle of law laid down in Madhumilan Syntex Ltd. & Ors. v. Union of India & Anr. 2007 AIR SCW 1971, the restoration application is allowed on the condition that the parties shall argue the case today finally on merits.

4. Heard learned counsel for the parties on merits.

5. By means of the petition, moved under Section 482 of the Code of Criminal Procedure, 1973, the petitioners have sought quashing of the proceedings of Criminal Complaint Case No. 3293 of 2000; Virender Kumar Shastri Vs. Kunwar Brij Bhushan, pending in the court of Chief Judicial Magistrate, Haridwar. Also, order dated 19.04.2001, passed by the IIIrd Additional Sessions Judge, Haridwar, in Criminal Revision No. 21 of 2001, dismissing the revision filed by the petitioners is sought to be quashed.

6. Brief facts of the case are that the petitioner No.1 Tilak Raj Gupta is retired Principal of an educational institution and currently Chairman of the Nuclear Medicine and Bone Densitometry Centre, Ganga Ram Hospital, Delhi. He is Secretary of the Vedic Mohan Ashram Trust, Haridwar. Petitioner No.2 Gyan Prakash Chopra is an Educationist, who is President of the D.A.V. College, Managing Committee. First Information Report was lodged by respondent No.2 Virender Kumar Shastri against one Kunwar Brij Bhushan and present petitioners making allegations that Kunwar Brij Bhushan (not the petitioner)

committed cheating by executing sale deed of the land belonging to the Ashram, measuring 11,113.25 sq. ft. to third party and defrauding the Ashram by minting more than Rs.10,00,000/- for himself. It is pleaded on behalf of the petitioners, who are trustees that as against them (present petitioners) there is no allegation in the First Information Report. It is contended on behalf of the petitioners that after investigation no offence was said to have been made out against the present petitioners and Final Report was submitted by the Police. However, the respondent No.2 filed protest petition and the same was treated as criminal complaint summoning all the three accused. The present petitioners’ case is that from the First Information Report itself ingredients of the offences alleged are not made out as against them.

7. Mr. Sanjeev Singh, learned counsel for the complainant, drew attention of this court to order dated 14.10.2003, passed by this Court in 482 Petition No. 234 of 2003, filed by Kunwar Brij Bhushan which was dismissed. It is contended on behalf of the respondent No.2 that after said petition has been dismissed, the petition filed by the present petitioners cannot be allowed.

8. However, after going through the papers on record, this Court finds that where there are specific allegations and prima facie evidence as against Kunwar Brij Bhushan (not the petitioner), there is nothing on the record which makes out case as against the present

petitioners that they had committed the alleged offences. The First Information Report itself shows that allegation was only against Kunwar Brij Bhushan that he transferred the land of the Ashram and pocketed the money thereby committed criminal misappropriation by committing forgery.

9. Having heard learned counsel for the parties and after going through the papers on record, this Court finds that the case of the present petitioners is totally different to the one which relates to Kunwar Brij Bhushan. As against present petitioners the ingredients of the offences alleged are not made out, even if the contents of the First Information Report are taken to be true. Therefore, the petition filed under Section 482 Cr.P.C. by the present petitioners (Tilak Raj Gupta & Gyan Prakash Chopra) deserves to be allowed.

10. Accordingly, the same is allowed. Proceedings in Criminal Complaint Case No. 3293 of 2000, pending in the Court of Chief Judicial Magistrate, Haridwar, are quashed only to the extent it relate to the present petitioners-Tilak Raj Gupta & Gyan Prakash Chopra. It is clarified that the court may proceed with the trial as against accused Kunwar Brij Bhushan whose petition has already been dismissed by this Court on 14.10.2003.

17.12.2009

(Prafulla C. Pant, J.)