Reserved on 13.3.2019 Delivered on 30.5.2019
Case :- APPLICATION U/S 482 No. - 17448 of 2018
Applicant :- Akash Gupta And 11 Others
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Dileep Kumar, Ashutosh Srivastava,
M.N. Singh, Mahesh Narain Singh
Counsel for Opposite Party :- G.A., Ashish Pratap Singh, Raghuvansh Chandra,Ram Jee Sharma, Suyash Agarwal
Hon'ble Om Prakash-VII,J.
1. Present application under Section 482 CrPC has been filed with the prayer to quash the entire proceedings of complaint case no. 2750 of 2015 under Sections 420, 467, 468 and 471 IPC and the summoning order dated 12.9.2016 passed by the Additional Chief Judicial Magistrate, Court No.3, Ghaziabad and all other consequential orders issuing Non-bailable warrant and the process under Section 82 CrPC as also the order dated 19.2.2018 passed by the Additional Sessions Judge, Court No.15, Ghaziabad in Criminal Revision No. 213 of 2016. Further prayer has been made to stay the effect and operation of aforesaid orders.
2. It appears that opposite party no.2 has lodged an F.I.R. on 24.4.2014 at Police Station Sihani Gate, Ghaziabad against some firms of Raurkela mentioning therein that he had obtained TIN No. 21465401045 from the Commercial Tax Department, Orissa for running business. It is also mentioned that some firms of Raurkela had committed forgery with the informant and due to that reason aforesaid TIN Number was got cancelled on 17.10.2013 and receipt to this extent was also obtained by the informant and same was also furnished in the office of Deputy Commissioner of Commercial Tax, Raurkela. It is also mentioned that when on 23.4.2014 Rishi Mishra, an employee of informant, went to the office of Deputy Commissioner, Commercial Tax concerned in connection with the aforesaid TIN Number, it was detected that on 28.11.2013 a revised return was filed in the account of informant. Informant also mentioned that when he got cancelled the aforesaid TIN Number on 17.10.2013 and its copy was also filed in the concerned department, how revised return was filed through computer. Thus, it was informed to the police concerned that someone has committed cheating / forgery in the TIN Number of the informant hacking the password. It further appears that on registration of F.I.R., matter was investigated by the police concerned and a final report was submitted on 28.8.2014. Against the said report, informant / opposite party no.2 filed protest petition on 7.2.2015. Concerned Magistrate vide order dated 3.6.2015 rejected the final report treating the protest petition as complaint and proceeded to enquire the matter under Chapter XV CrPC. It further appears that statements under Sections 200 and 202 CrPC were recorded in support of the complaint and during enquiry on 23.1.2016 taking recourse to the provisions of Section 202 CrPC, a direction was given to the local police to investigate the matter by Senior Police Officer. In the said order dated 23.1.2016 concerned Magistrate has also observed that in filing the revised return in the TIN Number of the opposite party no.2 online fraud was committed and until and unless I.P. address of that person, who had committed such act, is not traced out, only on the basis of oral statement of witnesses recorded on the complaint it will not be safe to summon the applicants. Pursuant to the aforesaid directions, matter was investigated by S.H.O. Sihani Gate and a report was submitted on 4.4.2016 to the effect that after investigation having been done no evidence could be obtained regarding the I.P. address of the person who had filed the revised return in the aforesaid TIN Number of the opposite party no.2. Concerned Magistrate after hearing the opposite party no.2, vide order dated 12.9.2016 summoned the applicants to face the trial for the offence under Sections 420, 467, 468 and 471 IPC but no summoning order was passed for the offence under Section 66 Information Technology Act observing that I.P. address of the person who has filed the revised return could not be traced out. It further appears that the said summoning order was challenged by way of criminal revision no. 213 of 2016 before the Sessions Judge concerned and same was decided vide order dated 19.2.2018 affirming the summoning order passed by the concerned Magistrate. Feeling aggrieved with the said orders, present application has been filed.
3. Affidavits in the matter have been exchanged between the parties.
4. Heard S/Shri Dileep Kumar, Ashutosh Srivastava, M.N. Singh, Mahesh Narain Singh, learned counsel for applicants, S/Shri Ram Jee Sharma, Ashish Pratap Singh, Raghuvansh Chandra and Suyash Agarwal, learned counsel for opposite party no.2 and learned AGA appearing for State and perused the entire record.
5. It was submitted by the learned counsel for applicants that no prima-facie case is made out against the applicants. Summoning order dated 12.9.2016 passed by the concerned Magistrate as well as the order passed by the Revisional Court dated 19.2.2018 are illegal and without application of judicial mind. Initially F.I.R. was lodged in the matter at Ghaziabad which was investigated but the Investigating Officer finding no evidence submitted final report. Opposite party no.2 filed protest petition. It was further submitted that concerned Magistrate rejecting the final report treated the protest petition as complaint and proceeded to enquire the matter under Chapter XV CrPC. Concerned Magistrate again directed the Investigating Officer to investigate the matter in view of the provisions of Section 202 CrPC, as applicants / accused were resident of different police stations where the complaint was filed. In compliance of the directions of the concerned Magistrate, the Investigating Officer investigated the matter and submitted report to the extent that I.P. address was not traceable. Though in the investigation report it was mentioned by the Investigating Officer that in the revised return the vehicles shown to be used in carrying the goods were not actually used. The Investigating Officer also recorded the statement of several persons but whereabouts of person, who hacked the password used by the opposite party no.2, was not traced-out. It was next contended that summoning order dated 12.9.2016 was passed only on the basis of oral evidence. There was no documentary evidence in support of oral version. Earlier opposite party no.2 had approached Orissa High Court and on the direction of Orissa High Court thorough investigation was made by the crime branch of the State of Orissa but nothing was found against the applicants. Writ Petition filed by the opposite party no.2 before the Orissa High Court was quashed extending liberty to opposite party no.2 to approach Sales Tax Department, if he so desires. Enquiry was also made by the Sales Tax Department of State of Orissa and specific report was submitted that revised return was not filed by the applicants. They have no concern with the said revised return. The said report was not challenged by the Opposite party no.2 and same attained finality. It was next submitted that earlier the opposite party no.2 had also lodged F.I.Rs. at Ghaziabad, which were investigated and final reports were filed. Then protest petition were filed, thereafter summoning orders were passed and the same were challenged through criminal revisions, which were allowed and matters were remanded back and are still pending before the Court concerned. Present prosecution is double jeopardy against the applicants. Continuation of proceeding of the aforesaid criminal case is against the fundamental rights of the applicants guaranteed under the Constitution of India. Referring to entire documents annexed with the application, it was next contended that summoning order is based on suspicion only. Nothing is on record to connect the applicants with the said revised return. It was further argued that revised return is said to have been filed in the year 2013. Registration was cancelled on 7.5.2014. There is every possibility that opposite party no.2 himself has filed the said revised return to avoid the tax liability. To substantiate this submission, learned counsel for the applicants referred to the enquiry report submitted by the Sales Tax Department of State of Orissa, which is annexed with the application. It was next submitted that the revisional court also did not consider the true aspect of the matter and illegally dismissed the revision affirming the summoning order. Neither the I.P. address of the person, who filed the revised return, was traceable nor the whereabouts of the person, who hacked the password of the company/ firm concerned, could be traced out by the Investigating Officer, hence, there was no occasion to pass the summoning order against the applicants. Nothing was mentioned in the F.I.R. disclosing the names of applicants. For the first time in the protest petition names of applicants were disclosed. It was also submitted that for the same subject matter, for which present summoning order has been passed, another criminal proceeding was initiated, which is pending. Thus, on this count also continuation of proceeding of aforesaid complaint case is abuse of process of law. It was further argued that though opposite party no.2 claimed that on 17.10.2013 registration of TIN in the Tax Department was cancelled yet it is clear that he took the benefit on several occasion through I.T.C.. This fact itself shows that firm was in operation till 7.5.2014 and registration was not cancelled till that date. Neither the applicants have filed the revised return nor they prepared forged documents or used forged documents nor ingredients of offence under Sections 420, 467, 468 and 471 IPC are available against them. Thus it was submitted that since concerned Magistrate while passing the impugned summoning order did not summon the applicants for the offence under the Information Technology Act for the reason that I.P. address was not traceable, therefore, impugned summoning order passed against the applicants is illegal for want of connecting evidence. In support of submissions, learned counsel for the applicants placed reliance on the decision of Apex Court in Rajiv Thapar and others vs. Madan Lal Kapoor, 2013 (81) ACC 387.
6. On the other hand, learned counsel for opposite party no.2 and the learned AGA submitted that a prima-facie case is made out against the applicants. Though in the F.I.R. final report was submitted by the Investigating Officer concerned yet on the direction of concerned Magistrate, the Investigating Officer collected evidence against the applicants. Vehicles said to have been used in carrying the goods were actually not used and were not in existence. Hacking password of the concerned company used in Tax Department, revised return was filed causing monetary loss to the opposite party no.2. Though concerned Magistrate did not find offence under Information Technology Act against the applicants yet there are sufficient evidence against them for the offences for which they have been summoned. Revisional Court has also analyzed the entire evidence in detail and finding a prima-facie case has rightly affirmed the summoning order. Since some transaction took place within the territorial jurisdiction of Ghaziabad, Court below had jurisdiction to entertain the complaint. Order passed by the Orissa High Court will not create any bar in passing the summoning order by the Court below. Enquiry made by the Sales Tax Department of the State of Orissa is under challenge. Applicants have not paid the amount which was to be paid to the opposite party no.2. They also used the false and forged documents in the revised return said to have been filed in the matter. Since complainant and the witnesses have supported the complaint case, summoning order passed in the matter need not interference. Order passed by revisional court is also in accordance with law. Non-mentioning of the name of applicants in the F.I.R. is not sufficient to quash the summoning order. As soon as during investigation their names came into light, clear details were disclosed in the protest petition. If few details are not mentioned in the F.I.R., summoning order can also not be quashed on the said ground. Revised return was filed by the applicants hacking the password, therefore, aforesaid offences are clearly attracted against the applicants. Both orders are correct. No interference is warranted in the matter by this Court.
7. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case law cited in the matter carefully.
8. Before proceeding to deal with the submissions raised by the learned counsel for the parties, I find it necessary to quote the law laid down by the Hon'ble Supreme Court in State of Haryana and others vs. Bhajan Lal and others, 1992 SCC (Cri) 426 , which are as under (paragraph 102):
“102. In the backdrop of interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines of rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:
(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;
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(3) Where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
9. In Rajiv Thapar and others vs. Madan Lal Kapoor, Apex Court held as under (paragraph 23):
“23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.”
10. In this matter, as is evident from the record, F.I.R. was lodged by the opposite party no.2 with the assertion that TIN Number obtained by him from the Commercial Tax Department, Raurkela for business purposes was operative upto 17.10.2013 only (as per F.I.R.). Applicants and opposite party no.2 were doing business of sale and purchase of iron and steel. Allegation against the applicants in the protest petition filed on the final report is also that hacking the password the applicants filed revised return on 18.11.2013. This fact came into knowledge to the opposite party no.2 on 23.4.2014. It is also evident from the record that the Investigating Officer investigated the matter but did not find any clue of the I.P. address of the person who filed the revised return against the TIN Number of opposite party no.2. Password used for the aforesaid purpose was also not known, thus, final report was submitted. On protest petition filed by the opposite party no.2, concerned Magistrate rejected the final report treating the protest petition as complaint. During enquiry on the complaint, concerned Magistrate directed the Investigating Officer concerned to re-investigate the matter for tracing out the I.P. address and the password used in filing the revised return. Again, the police concerned submitted report that despite thorough investigation, aforesaid facts could not be traced out. Initial order passed by the concerned Magistrate on the complaint on 23.1.2016 also reveals that concerned Magistrate while dealing with the matter was of the view that until and unless I.P. address of the person who filed the revised return was not known, only on the basis of oral statement of the complainant and the witnesses, it would not be safe to summon the applicants / accused. Though I.P. address and password both were not traced out yet concerned Magistrate vide order dated 12.9.2016 summoned the applicants to face trial for the offence under Sections 420, 467, 468 and 471 IPC but did not summon the applicants for the offence under Section 66 Information Technology Act. The concerned Magistrate was of the view that since I.P. address was not traced-out, it would not be desirable to summon the applicants to face trial for the offence under Section 66 Information Technology Act. In the investigation report, police concerned has reported that the vehicles described in the revised return said to have been used to carry the goods were not the same as disclosed in the revised return. The revisional court has also affirmed the summoning order. It is also evident from the record that two F.I.R.s had already been lodged by the opposite party no.2 at police station concerned itself for the offence under Sections 420, 406 and 506 IPC against the applicants, which culminated in issuance of summoning order after submission of final report. The said summoning orders were challenged through criminal revisions, which were allowed and summoning orders were quashed and concerned Magistrate was directed to pass fresh order. It further appears that when the demand notice from Commercial Tax Department was issued to the opposite party no.2, he approached Orrisa High Court and filed Writ Petition (C) No. 13313 of 2014 for direction to the Commercial Tax Department to provide I.P. address. It is also evident that the Orissa High Court directed the Crime Branch to investigate the matter. Since crime branch constituted under the direction of Orrisa High Court could not trace out I.P. address of the person who had filed the revised return in the aforesaid TIN Number, the writ petition was disposed of directing the petitioner to approach the Commercial Tax Department as and when issue arises. It further appears that on the complaint of opposite party no.2 Commercial Tax Department of the State of Orrisa made enquiry and prepared enquiry report observing that material facts have been suppressed by the opposite party no.2 while making the complaint and also in the judicial proceeding before the appropriate Court and none, other than the opposite party no.2, had filed the revised return on 17.10.2013. It was also observed in the said report annexed with the application that only application for canceling the aforesaid TIN Number was moved on 17.10.2013 but it was actually closed on 23.4.2014 and during intervening period, opposite party no.2 operated the aforesaid TIN Number claiming input tax credit. Now the question is that if there was no evidence against the applicants to proceed with trial for the offence under Section 66 Information Technology Act for want of I.P. address, the summoning order as well as the order passed by the revisional court only on the basis of oral evidence are sustainable. It is also to be seen that as to whether evidence available on record is sufficient to connect the applicants with the alleged offences.
11. Since I.P. address of the person who filed the revised return has not been traced out, there is no evidence at all on record either collected by the Investigating Officer or adduced by the opposite party no.2 / complainant in the complaint in the form of documentary evidence to show that the applicants and applicants only using specific I.P. address and hacking the password of the aforesaid TIN Number had filed the revised return. Since opposite party no.2 had moved complete application for canceling the registration of aforesaid TIN Number on 23.4.2014, revised return is said to have been filed on 17.10.2013, assertion of complainant that no transaction took place in the said TIN Number after 17.10.2013 is not acceptable. The said TIN Number was operational on behalf of firm / company of opposite party no.2 after filing of cancellation application. Mere collection of evidence by the Investigating Officer during investigation that in the revised return the description of the vehicles said to have been used in carrying the goods are not correct but they were different type of vehicles, in the opinion of Court, will not be sufficient to connect the applicants with the alleged offences. If it is not clear as to who filed the revised return and even Commercial Tax Department of State of Orrisa after making thorough enquiry found that applicants have not filed the revised return, it is every possibility that said return would have been filed by the opposite party no.2 himself. If such is the position, observations recorded by the revisional court in its order as well as in the summoning order passed by the concerned Magistrate are not in accordance with facts and evidence of the case. It appears that summoning order was passed in the present matter only on the basis of suspicion without any evidence. If the nature of evidence available on record and relied upon by the concerned Magistrate as well as the revisional court are compared with the law laid down in Rajiv Thaper case (supra), I am of the opinion that the material relied upon by the applicants / accused are sound, reasonable and indubitable and also impeccable quality and same clearly rule out the assertions contained in the protest petition and stated by the witnesses during enquiry. There is no sufficient evidence in the present matter to proceed with the trial against the applicants.
12. As has been discussed here-in-above, concerned Magistrate while passing the summoning order itself was of the view that I.P. address of the person who filed the revised return was not traceable and it was not clear as to who filed the revised return in the aforesaid TIN Number. Thus, this fact itself is sufficient to reject and over rule the factual assertions contained in the complaint. Though through counter affidavit opposite party no.2 has tried to refute the assertions of applicants yet the facts and circumstances of the case and the evidence available on record are of such nature that pleadings taken by the complainant in the counter affidavit cannot be justified. If the entire evidence adduced in the complaint in support of the summoning order by the complainant are scrutinized minutely, this Court is also of the view that continuation of the proceeding of the aforesaid complaint case on the basis of summoning order passed in the matter is nothing but an abuse of process of Court. On the strength of evidence available on record, no prima-facie case is made out against the applicants to proceed with trial.
13. In view of the settled legal position, quoted here-in-above and the discussions made, in my view, there is force in the submissions made by the learned counsel for the applicants. The impugned orders are liable to be quashed and the application is liable to be allowed.
14. Accordingly, the application is allowed. The impugned summoning order dated 12.9.2016 passed by the Additional Chief Judicial Magistrate, Court No.3, Ghaziabad and all other consequential orders issuing Non-bailable warrant and the process under Section 82 CrPC as also the order dated 19.2.2018 passed by the Additional Sessions Judge, Court No.15, Ghaziabad in Criminal Revision No. 213 of 2016 are quashed / set-aside against the applicants.
Order Date :- 30.05.2019
safi