Court No. - 81
Case :- APPLICATION U/S 482 No. - 46019 of 2019 Applicant :- Ashok Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Surya Bhan Singh,Akhilesh Kumar,Shiv Nath Singh(Senior Adv.) Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Supplementary affidavit has been filed and the same is taken on record.
Hear Sri Shiv Nath Singh, learned Sr. Advocate assisted by Sri Surya Bhan Singh, learned counsel for the applicant and Sri G.P. Singh, learned A.G.A. for the State.
The present application has been filed with a prayer to quash the order dated 5.8.2019 passed by Chief Judicial Magistrate, Kannauj in Criminal Case No. 2523 of 2009 (C.N.R. No. U.P. KJ04-001826-2009) arising out of Case Crime No. 135 of 2003, under Sections 217, 201, 409 IPC, P.S. Kotwali Kannauj, District Kannuj and also quash the entire proceedings of aforesaid case.
It has been argued by the learned counsel for the applicant that the allegation made in the F.I.R. against the applicant is that file of case no. 158 of 1995 was not handed over by the accused- applicant to the next incumbent while handing over the charge and therefore he has committed an offence under Section 409 IPC. It is further argued that the said allegation is absolutely false case because the accused was transferred to different Tehsil on 21.8.2000 while the file which is said to have been not handed over by him was found to be missing on 9.5.2001 when he had already handed over the charge. It is next argued that according to the applicant the next incumbent might have lost the file of the said case and accused is absolutely innocent. He has no hand in loss of the said file. He has next argued that no allegation has been made of any financial gain out of it as no one had made complaint of that nature. No departmental enquiry was held against him hence the trial court's order is erroneous by which application for discharge has been rejected.
Learned A.G.A. has opposed the prayer of quashing.
I have gone through the impugned order. It is recorded in it by the trial court that there is sufficient evidence on record against the accused-applicant to frame charge against him. It would be pertinent to mention here ingredient of Section 409 IPC. Following ingredients are required to be fulfilled (i) that the accused was entrusted property in any manner or that such property was in his dominion in his capacity of a public servant, or as banker, merchant, factor, broker, attorney or agent, in the way of his business in such capacity; (ii) that the accused committed breach of trust in respect of that property.
If these two ingredients are applied in the present case, it is apparent from the allegations levelled against the applicant that he was in-charge of the file which is said to be missing and thereby he is said to have committed breach of trust as he did not return the same. In defence, learned counsel for the applicant has argued that he was not in-charge of the said file on the date when it was found to be missing, which is subject matter of evidence and at this stage, it cannot be denied that there is evidence against him which would suffice to frame charge against him.
In view of above, I find no infirmity in the impugned order and the same deserves to be upheld. It is accordingly upheld. The present application u/s 482 Cr.P.C. is dismissed.
Looking to the fact that case is very old, trial court shall make all possible efforts to decide this case expeditiously preferably within a period of six months.
However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such an application is moved, the same shall be disposed without being influenced by the observations of this Court.
The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
With the above direction, application u/s 482 Cr.P.C. is disposed of.
Order Date :- 17.12.2019 A.P. Pandey