Court No. - 89
Case :- APPLICATION U/S 482 No. - 176 of 2021 Applicant :- Ankit Sharma And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shishir Tandon,Akshay Mohiley Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Ashish Tandon, learned counsel for applicants and learned A.G.A. for State.
This application under Section 482 Cr.P.C. has been filed challenging the charge-sheet dated 13.12.2018 submitted in Case Crime No.57 of 2017, under Sections 420, 406, 120B I.P.C., P.S. Bisrakh, District Gautam Buddh Nagar as well as the consequential cognizance/summoning order dated 14.12.2018 passed by III Additional Chief Judicial Magistrate, Gautam Buddh Nagar in Criminal Case No.6449 of 2018, (State of U.P. Vs. Shikha Tiwari & Others).
Perusal of record shows that opposite party no.2, Rajesh Kumar Soran lodged on F.I.R. dated 27.01.2017, which was registered as Case Crime No.57 of 2017, under Sections 420, 406, 120B I.P.C., P.S. Bisrakh, District Gautam Buddh Nagar. In the aforesaid F.I.R., eight persons, namely, Shubhkamna Builtech Pvt. Ltd., Kindal Developers, J.S.S. Buildcon Pvt. Ltd., Sri Piyush Tiwari, Sushri Shikha Tiwari (Director: Kindel Developers), Sri Ankit Sharma (Director: Buildcon Pvt. Ltd.)/applicant no.1, Sri Pratosh Kumar Sharma (Director: J.S.S. Buildcon Pvt. Ltd.)/applicant no.2 and Sri Divakar Sharma Shubhkamna Buildtech Pvt Ltd. have been nominated as named accused.
Learned counsel for applicants submits that the present criminal proceedings initiated by opposite party no.2 are malicious. There is no evidence on record to implicate the present applicants with the crime in question.
On the above submissions, Court raised a pointed query as to whether applicants challenged F.I.R. dated 27.01.2017 before this Court. Learned counsel for applicants fairly submitted that present applicants had challenged F.I.R. by way of Crl. Misc. Writ Petition No.27501 of 2017, "J.S.S. Buildcon Pvt. Ltd. & Another Vs. State of U.P. & 3 Others". However, same was dismissed vide order dated 12.12.2017. Learned counsel for applicants has also placed order dated 12.12.2017, which is taken on record.
For ready reference, order dated 12.12.2017 is reproduced herein under:-
"We have heard learned counsel for the petitioners and learned A.G.A.
This writ petition under Article 226 of the Constitution of India has been filed by the petitioners for quashing the impugned First Information Report registered as Case Crime No. 0057 of 2017, under Sections 406, 420, 120B I.P.C., Police Station Bisrakh, District Gautam Budh Nagar, so far as it relates to the petitioners and also for direction to the opposite parties not to arrest them in pursuance of the impugned F.I.R.
It is contended that from a bare perusal of the First Information Report it becomes apparent that the allegations are in respect of commercial transactions between the parties and under an agreement which may give rise to a civil dispute but no criminal liability is said to be made out.
Learned A.G.A. opposed the petition.
We have gone through the allegations contained in the impugned F.I.R., which, prima facie, discloses commission of cognizable offence, as such, we are not inclined to interfere in the F.I.R.
However, in view of the facts and the allegations made in the F.I.R., writ petition stands finally disposed of with the direction that the petitioners shall not be arrested in the aforesaid case crime number till cogent and credible evidence is collected showing the complicity of the petitioner in the instant case or till submission of police report under Section 173(2) Cr.P.C. before the court concerned, whichever is earlier, subject to their cooperation in the investigation, which will go on and shall be brought to a logical end."
At this juncture, learned A.G.A. contends that once the F.I.R. has been upheld by this Court, then the veracity of the F.I.R. on the submissions urged by learned counsel for applicants cannot be looked into by this Court. Learned A.G.A. further contends that except for the statement of first informant, Rajesh Kumar Soran, who has been arrayed as opposite party no.2 in this application, no other material collected by the Investigating Officer has been brought on record. Learned A.G.A. further contends that in case there is no evidence against the applicants as alleged by learned counsel for applicants then remedy of applicants is to approach the court below itself by seeking discharge.
Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of record, undisputed position which emerges is that applicants had challenged the F.I.R. 27.01.2017 giving rise to above-mentioned proceedings by filing Crl. Misc. Writ Petition No.27501 of 2017, "J.S.S. Buildcon Pvt. Ltd. & Another Vs. State of U.P. & 3 Others", which has been dismissed by this Court vide order dated 12.12.2017. In view of above, submission urged by learned counsel for applicant that present criminal proceedings have been initiated malafidely against applicants cannot be looked into.
As the entire material collected by the Investigating Officer during the course of investigation has not been brought on record, therefore the submission that there is no evidence against the applicants, as such the entire proceedings of above- mentioned criminal case are liable to be quashed cannot be examined by this Court.
In view of above, prayer made in this application is refused.
However, in the facts and circumstances of the case it is provided that applicant may approach court below itself by moving a discharge application. In case, any such application is filed by applicants, same shall be disposed of by court below in accordance with law.
With the aforesaid observation, this application stands finally disposed of.
Order Date :- 11.1.2021 Saif