KULDEEP RAJ GUPTA Vs. STATE OF J&K

JUDGEMENT

(1.) Through the medium of instant petition, petitioner seeks quashment of criminal proceedings including order dated 02.04.2007 where under the Court has taken the cognizance of offences under Section 420 RPC along with 504/506 RPC in criminal challan in FIR no.90/2006 of Police Station Channi Himmat, titled "State v. Kuldeep Raj Gupta " pending before the Court of learned Special Municipal Magistrate, Jammu.

(2.) The case set up by the petitioner is that respondents 2 and 3 filed a false and frivolous complaint before learned Chief Judicial Magistrate, Jammu, on which as per learned Magistrate the allegations made in the complaint disclosed a cognizable offence so he directed Station House Officer, Police Station, Channi Himmat, Jammu to register the case and investigate the same. Accordingly, FIR No.90 of 2006, was registered at Police Station Bahu Fort, Jammu and concerned police had filed a final investigation report before the Court contending therein that Investigating Agency had come to a conclusion that the allegations levelled particularly relating to alleged offences other than offences under Section 504 and 506, the same were not based on facts. With respect to offences under Section 504 and 506, though the police had said something, yet, had reported that the two offences being non-cognizable, it lacked jurisdiction and competence to make a report thereof.

(3.) It is contended that on a false story to get register FIR; respondents 2 and 3 had taken assistance of section 156(3) of Cr.P.C., 1973 It is stated that story was not only false but was false to the knowledge of respondent's No. 2 and 3, makers thereof. It was also false with respect to alleged allegation relating to alleged offences under Sections 540 and 506 as petitioner has never known or seen the two respondents at any stage. The final report so filed by the police before CJM, Jammu was transferred to learned Special Municipal Magistrate, Jammu. It is stated that on notice by the learned Magistrate, respondent Nos. 2 and 3 appeared and had filed a protest petition. As would appear from the Protest Petition, the same had been signed by the learned Advocate through whom it had been submitted and also shows the signatures of respondent No.2. The protest petition was allowed by the learned Magistrate who directed cognizance in the matter for alleged offences. Petitioner herein filed an application under Section 253 (2) Cr.P.C., 1973 before the said Court praying therein for dropping of the proceedings. Earlier petitioner also filed a petition under Section 561-A before this Court praying therein quashment of the proceedings including FIR and order dated 02.04.2007, to which this Hon'ble Court heard and disposed of the said petition by directing the learned Magistrate to dispose of the application within a period of five weeks. The said application was dismissed by the trial court vide order dated 09.12.2010. It is contended that respondents No.2 and 3, have alleged in the protest petition amongst other allegations are i) That, petitioner herein had executed a Power of Attorney in favour of one Chander Shekhar Sharma S/o Shri Nand Kishore Sharma R/o 202 A/D Gandhi Nagar, Jammu. Attested photocopy of this Power of Attorney has been filed herewith annexed as Annexure H. ii) That, Shri Chander Shekhar Sharma on the basis of the Power of Attorney executed an agreement to sell in favour of respondent No.2. Photocopy of this agreement has been filed herewith as Annexure J. iii) That, the complainant i.e. respondent No.2 in fact pleaded in para 5 of the complaint, that, despite his alleged best efforts, he could not contact the attorney holder of the petitioner herein as according to respondent No.2 he was out of country. The petitioner herein did not take any step to have the plot transferred in favour of the respondent No.2. iv) That, petitioner herein raised objection before the Secretary Housing Board and informed the Board, that, the plot of land, which was allotted to the petitioner and was in his name could not be transferred nor should any request for any such transfer be entertained. v) That, the petitioner herein had cancelled the Power of attorney by deed of Cancellation, copy whereof, is filed herewith as Annexure K. Petitioner, herein, had also notified, that the Power of Attorney in favour of Chander Shekhar stood cancelled and he had no power to transfer the plot in favour of anyone. vi) That, respondent No.2 also had pleaded, that, he had received the paper relating to the plot particularly approved Building Plan along with the agreement to sell. It is further contended that petitioner is aggrieved of not only the impugned order but also aggrieved of pendency of the proceedings including the order dated 02.04.2007. On the following grounds, petitioner has challenged the order impugned as well as criminal proceedings on the following grounds:-