Court No. - 83
Case :- APPLICATION U/S 482 No. - 13863 of 2021 Applicant :- Akbar Ali Khan @ Moin Khan And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shoar Mohammad Khan Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Shoar Mohammad Khan, learned counsel for applicants and learned AGA for State.
2. Perused the record.
3. This application under section 482 Cr.PC has been filed challenging charge sheet dated 30.08.2019 submitted in Case Crime No. 891 of 2019 under Sections 323, 406, 420, 506 IPC, Police Station Baradari, District Bareilly, as well as entire proceedings of case no. 99 of 2020 (State vs. Athar Ali Khan and others) arising out of above mentioned case crime number, pending in the court of Additional Chief Judicial Magistrate, Court No. 1, Bareilly.
4. Learned counsel for applicants contends that applicants are innocent. They have been falsely implicated in above mentioned case crime number. It is then contended that allegations made in FIR are false and concocted. No date has been mentioned in the FIR specifying the date on which money was loaned by first informant - opposite party 2 to applicants. It is also submitted that entire transaction is alleged to have been made in cash for which there is no proof. It is also submitted that allegations made in FIR are not credible and therefore, not worthy of reliance. Investigating Officer has not conducted investigation in free and fair manner. As such, consequential charge-sheet is tainted. It is further submitted that present criminal proceedings have been engineered by first informant - opposite party on account of some ulterior motive. On the aforesaid premise, it is urged that present criminal proceedings are not only malicious but also an abuse of process of court. As such same are liable to be quashed by this Court.
5. Per contra learned A.G.A. has opposed this application. Learned AGA contends that after registration of above mentioned FIR, Investigating Officer proceeded with statutory investigation of above mentioned case crime number under Chapter-XII Cr.P.C. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the prosecution story as unfolded in FIR. On the basis of material collected by investigating officer during course of investigation, which is substantially adverse against applicants, investigating officer has submitted charge-sheet dated 30.8.2019 whereby and whereunder applicants have been charge-sheeted under Sections 323, 406, 420, 506 I.P.C. In the charge-sheet so submitted, as many as six prosecution witnesses have been nominated. From the perusal of the allegations, it is apparent that specific allegation has been made against applicants with regard to taking of money and partial return of the same. In the light of above, it cannot be said that ingredients of Section 406, 420 I.P.C. are not satisfied in present case. It is further submitted that charge-sheet is the outcome of investigation. Since no deficiency, irregularity or illegality has been pointed out in investigation of concerned case crime number, consequential charge-sheet cannot be challenged. Reliance has been placed upon judgement of Apex Court in Nupur Talwar vs. Central Bureau of Investigation & another, (2012) 11 SCC 465 and on basis thereof, it is contended that at this stage only prima-facie material for taking cognizance and summoning the charge-sheeted accused is to be seen and not that material collected is sufficient for conviction of accused. In view of above, it is urged by learned AGA that present application is liable to be dismissed by this Court.
6. When confronted with aforesaid, learned counsel for applicants could not overcome the same.
7. Having heard learned counsel for applicants, learned AGA for State and upon perusal of material on record and looking into the facts of the case, at this stage, it cannot be said that no offence is made out against applicants. All the submissions made at Bar relate to the disputed defence of applicants, which cannot be adjudicated upon this Court in exercise of its jurisdiction under Section 482 Cr.P.C. This Court cannot appriase and appreciate evidence to record a finding one way or other. Same can be recorded by court below only upon trial of above mentioned case. At this stage only prima facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.
8. In view of above, present application fails and is liable to be dismissed.
9. It is accordingly dismissed.
Order Date :- 13.8.2021/nd