- (1.) This is an application Under Section 561 of the Code of Criminal Procedure by Ram Swarup Gupta, Om Prakash Gupta and Sri Ram Gopal against whom Jyoti Swarup Agarwal, opposite party No. 1, filed a complaint dated 19-6-1967 in the Court to the Judicial Magistrate, Kashipur, distinct Nainital. The prayer in this application is tat the complaint be quashed, and in the alternative the proceedings which have arisen upon the complaint be stayed during the pendency of the Civil suit between the parties which is pending at present in the court of Civil Judge, Kashipur, district Nainital.
(2.) I have perused the affidavit filed in support of the application and also the counter affidavit and the rejoinder affidavit. After hearing the Learned Counsel for the parties, I am of the opinion that at this stage it is not possible to say that the complaint does not disclose any cause of action for proceedings being taken against the Applicants, for an offence punishable Under Section 420 of the IPC. Certain facts which have been stated in the affidavit filed in support of the application may be relevant in considering as to whether, if those facts are proved, the Applicants could really be said to have committed any act of cheating as defined Under Section 420 of the IPC; but that is a matter into which I cannot go at this stage. It would be for the court concerned legally seized of the complaint to permit the Applicants to adduce evidence to establish the material facts which have been stated in the affidavit in this Court and upon which the Applicants want to rely. It will also be for that court to consider, if the aforesaid facts are established, whether the Applicants can be said to have committed even prima facie any offence of cheating.
(3.) The Learned Counsel submitted that the court at Kashipur has no jurisdiction to try the case, This contention also does not appear to be sound. In any event, to decide the question of jurisdiction also it may be necessary to go into certain fact and to establish those facts, it may be necessary to permit some evidence to be adduced. The Learned Counsel placed reliance on a decision of this Court in Kali Charan v. State, 1955 AIR(All) 462 The Learned Counsel placed reliance in particular on the following passage occurring in the judgment of the aforesaid case: (29) It was further argued for the state that the court at Farrukhabad could have jurisdiction over these cases of other places in view of Sections 79 and 182, Code of Criminal Procedure The various offences under investigation against the accused would be complete the moment they were committed any place. Such consequences as other places which could be the result of such conduct cannot be an, ingredient of those offences and therefore Section 179 Code of Criminal Procedure cannot apply in view of kashi Ram v. Emperor, 1934 AIR(All) 499(D). The offences Under Sections 420, 468, 471 and 474, IPC are not such which can be committed in more than one place and therefore Section 182, Code of Criminal Procedure would not apply. In the instant case it appears that the accused persons have not so for appeared before the Court. All that has so far happened is that a complaint has been filed and the statement of the complainant has been recorded. Therefore, in the absence of necessary evidence and material it is not possible at this stage to go into the question as to whether there are good and adequate grounds for holding that the court at Kashipur legally has no jurisdiction to try the case. This matter itself may be considered by the court seized of the complaint when necessary evidence has been given on the basis of which proper submissions can be made in regard to the question of jurisdiction.;