Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed to quash and set aside the impugned charge sheet arisen out of Case Crime No.136/2017 under Sections 406 and 506 IPC, Police Station - Naka Hindola, District Lucknow, summoning order dated 15.10.2018 and Bailable warrant dated 01.12.2018.
From the material placed before the Court, it appears that the charge-sheet after the due investigation was submitted and vide order dated 15.10.2018 learned Magistrate took cognizance of offence against the present accused-applicant and co-accused Ankit Pandey, Anshuman Singh issuing summons fixing date 1.12.2018. When despite of services of summons on the applicant-accused, they remain absent before the Court, the Court fixing date 16.9.2019 issued bailable warrant worth Rs.10,000/-. The bailable warrant has also been served but the accused did not appear before the Court and preferred to file an application under Section 482 Cr.P.C. for quashing the entire proceeding arisen from the case crime No. 136/2017 under Sections 406 and 506 I.P.C. In supporting affidavit, the applicant in para-4 averred that the investigating officer duly recorded the statement of applicant-accused supporting the prosecution story. The applicant accused takes a plea in the defence under Section 482 Cr.P.C. that he never met with opposite party no.2 nor has received any amount from him. He further states that there is no evidence found by the Investigating Officer against him but under the pressure of opposite party no.2, the charge sheet has filed against him.
A brief fact emerging from the First Information Report, whereupon the investigation is done and charge-sheet filed before the Court is to the effect that under the name and style of "Sun Star The Club", a scheme was launched by the Goodluck Hotel Limited Company having a corporate office in the Goodluck Hotel Limited, 406 Venus Atlantis Prahlad Nagar, Ahmadabad and the applicant-accused on their behalf contacted to the opposite party no.2 inviting him in Hotel Meriat at Lucknow and described him the scheme in detail, enticed and induced to be the members of the scheme posing that scheme of Sunstar the Club has connection with the Star/Actors like Govinda, Ravi Kishen and Cricketer Kapil Dev as joint directors. The opposite party no.2 and his wife were also induced by the applicant-accused to believe that Lucknow is one of the place like other big cities where the branch office of the said companies opened. He represented before the opposite party no.2 and his wife that office is at 7th Floor Shalimar Titanic building, Gomti Nagar, Lucknow for discharging their duties at Lucknow. He offered to the opposite party no.2 that if up to 31 March membership is obtained he would be entitled for special premium and even after being member of the scheme, if the opposite party no.2 and his wife thinks, the same as not beneficial, then the entire money invested by them will be refunded and thus induced them to enter into agreement within two days. On the inducement of opposite party no.2 having belief in his assurance paid to the accused applicant along with the other co-accused Rs.1,65,000/- under belief on condition in agreement that in future for 20 years no further payment will be taken for membership by the company and if the said membership fee of Rs. 1,65,000/- will instantly be paid to them then the applicant-accused and his company was make a special concession of Rs.15,000/-. Acting on the representation of the said applicant-accused, Abhijeet, Ankit Pandey and Anshuman Singh who visited the house of opposite party no.2 and under the said terms and conditions of the company they received Rs.15,000/-, Rs.15,000 and Rs.10,000/- through State bank of India and Rs.1,10,000/- through Cheque of State Bank of India bearing No. 140227 dated 26.02.2017 drawn in the name of Goodluck Hotel Limited and issued a receipt. They assured that documents relating to membership will be sent to opposite party No.2 and his wife within two days. Since, then neither any membership document is sent by them nor the money received by the opposite party is paid back.
The Investigating Officer investigated all these matters and collected the documentary evidence with regard thereto. After investigation all these things along with the charge-sheet were submitted before the Court.
For the purpose of ready reference Section 405 & 406 I.P.C. is reproduce hereunder:-
"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust"
406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
On the basis of charge sheet submitted before the Court, the court of Magistrate took cognizance of the offence under Section 406 IPC and issued summons.
At this stage veracity of the fact alleged by the applicant and those complained by opposite party in the F.I.R. lodged by him cannot be judge, it can only be ascertained on the basis of evidences and documentary. The dispute as emerged out of the FDR is not liable to be disbelieved as being improbable from the allegations unless rebutted with evidence during trial. The allegations have ingredients for constituting the offence of criminal breach of Trust prima facie.
On bare reading of the application under Section 482 Cr.P.C., there is nothing to show the abuse of process committed by the opposite party no.2, the complainant of the case by filing the F.I.R. against the applicant accused and other co-accused.
So far as the allegations as to issuance of bailable warrant is concerned, the interference then is using the extraordinary powers under Section 482 Cr.P.C. must be exercised with extra care and caution.
Hon'ble Apex Court has held in various cases that court should properly balance both the personal liberty and societal interest before issuing warrants. From the material placed before the Court by the accused applicant himself, it appears that after taking cognizance of the offence summons were issued but when despite the service of summons the accused did not make his appearance before the Court bailable warrant was issued. From the process of issuance of summons up to bailable warrant, the purpose of the Court is only to ensure the presence of accused before the court to participate in the trial. The accused applicant instead of appearing before the Court, to participate in the trial by putting his defence before the court below opted to come before High Court for quashing the proceeding. In the entirety and the circumstance, no abuse of process is seen on the part of the Court itself. Every care and balance as needed to make a balance between the personal liberty and societal interest before issuing bailable warrant was adopted by the Court without skipping any procedure as envisaged under law.
The scope of interference exercised the extraordinary power of court under Section 482 Cr.P.C. is explained in para 23 and 24 of judgment of Hon'ble Apex Court in the case of Inder Mohan Goswami Vs. State of U.P. reported in 2012 SCC 1, which reads as under:-
"23. This court in a number of cases has laid down the scope and ambit of courts powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute."
In R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866, Hon'ble Apex Court summarized some categories of cases where inherent power can and should be exercised to quash the proceeding, para-26 as follows:-
"(i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
In series of a decisions relating to the exercises of extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 Cr.P.C. give the following category of cases by way of illustrations wherein such power could be exercised either to prove abuse of process of the Court or otherwise to secure the ends of justice.
Hon'ble Apex Court in State of Haryana Vs. Bhajanlal reported in 1992 Supp (1) SCC 335 in its para 102 laid down the following conditions.
"102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused."
From the material placed before the Court and the grounds taken in the application under Section 482 Cr.P.C., the accused applicant remains unsuccessful in establishing abuse of process of the court or the necessary interference exercising the extraordinary power under Section 482 Cr.P.C. in the matter for securing the ends of justice. The case of the applicant accused does not fall in any of the seven illustrations given in the judgment of Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal (Supra). Thus, the application under Section 482 Cr.P.C. is liable to be rejected.
However, with a view to secure and protect the personal liberty and to ensure the participation of the accused in the trial before the Court below, it is directed that in case the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided by both the courts below in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of 30 days from today or till surrender of applicants before the trial court, whichever is earlier, no coercive steps shall be taken against the applicants.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 26.9.2019 Gaurav/-