Court No. - 45
Case :- CRIMINAL MISC. WRIT PETITION No. - 2706 of 2021 Petitioner :- Brajmohan And 3 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shailesh Kumar Shukla Counsel for Respondent :- G.A.,Guru Prasad Mishra
Hon'ble Pritinker Diwaker,J. Hon'ble Samit Gopal,J.
Heard Sri Shailesh Kumar Shukla, learned counsel for the petitioners, Sri Gambhir Singh, learned counsel for the State and perused the material on record.
This writ petition has been filed by the petitioner seeking quashment of F.I.R dated 18.02.2021 registered as Case Crime No. 83 of 2021 for the offence under Sections 420, 406, 323, 504, 506 of I.P.C., Police Station Sadar Bazar, District Saharanpur with a further prayer to stay the arrest of the petitioners during the pendency of the writ petition.
Learned counsel for the petitioners argued that the petitioners have been falsely implicated in the present case. It is argued that the dispute between the parties is a civil dispute and is a counterblast only to create pressure upon the petitioners and the respondent no.4 has lodged the present first information report against the petitioners to save his skin. It is argued that civil proceedings is going on between the parties. It is argued that the respondent no.4 executed a sale-deed in favour of petitioner no.2 on 08.04.2019 after receiving a total consideration of Rs. 25,00,000/- in which a cheque of Rs. 5,75,000/- was given to the respondent no.4 and there was nothing due against the petitioner no.2. Thereafter, the respondent no.4 requested the petitioner no.2 for payment of Rs. 5,75,000/- in cash and the petitioner no.2 then paid the same in cash and requested the respondent no.4 to return the said cheque of Rs. 5,75,000/- but he did not return the said cheque. The cheque was then produced in the bank on 26.06.2019 by the respondent no.4 which bounced due to insufficient funds. Thereafter, the respondent no.4 filed a suit for cancellation of sale-deed on 10.07.2019. A compliant under the provisions of Negotiable Instruments Act has also been filed by the respondent no.4 against the petitioner no.1. An application was given by the respondent no.4 to the S.S.P. concerned against the petitioner nos. 1 & 2 which was inquired into by Sub Inspector who recommended proceedings under Section 145 Cr.P.C. for which notices have been issued by the S.D.M. concerned. It is argued that the respondent no.4 has not returned the said cheque of Rs.
5,75,000/-, in spite of the fact that money has been paid to him in cash subsequently by the petitioner no.2 on his request. It is argued that since the said cheque was not returned and the respondent no.4 was threatening and harassing the petitioners, the petitioner no.1 lodged a first information report against the respondent no.4 and his wife. Thereafter, a final order was passed by the S.D.M. concerned against which a revision was preferred in which the said order was set aside and the matter was remanded. As a counterblast, the present first information report has been registered. Learned counsel for the petitioners relied upon the judgement of the Apex Court in the case of Kapil Agarwal and others Vs. Sanjay Sharma and others: Criminal Appeal No. 142 of 2021 and places paragraph 7 before the Court to buttress his submission and has proceeded to argue that the Apex Court has in identical circumstances quashed the criminal proceedings of the said case by means of the said judgement and, hence, the present F.I.R. is liable to be quashed.
Per contra, learned counsel for the State opposed the prayer for quashing. It is argued that the case as is being taken up by the petitioners is that the cheque of Rs. 5,75,000/- which was a part of the sale consideration and finds its reference in the sale-deed in paragraph 5 & 6 was dishonored due to which a suit for cancellation of the sale-deed has been filed and even proceedings under the Negotiable Instruments Act have been initiated. It is argued that the argument and averment in paragraph 7 of the writ petition that on the request of the respondent no.4, the amount equivalent to the cheque amount was paid to him in cash is a vague and a bald averment. It is argued that there was no occasion for the petitioners to pay the said amount when the same was paid by means of a cheque whose details have been given in the sale-deed. It is argued that even otherwise the same is the defense of the petitioners who are accused in the present matter which cannot be looked into by this Court at this stage. It is argued that perusal of the first information report shows that a cognizable offence is made out. It is further argued that the judgement as is being relied upon by the learned counsel for the petitioners is concerned, is distinguishable on facts on this count itself and is not applicable to the present case. It is argued that the present writ petition is devoid of any merit and deserves to be dismissed.
Perusal of the impugned FIR and material on record makes out a prima facie case against the petitioners. The submissions made by the learned counsel for the petitioners relate to disputed questions of facts, which cannot be adjudicated upon by this Court in jurisdiction of under Article 226 of Constitution of India.
The Full Bench of this Court in Ajit Singh @ Muraha Vs. State of U.P. and others : (2006) 56 ACC 433 reiterated the view taken by the earlier Full Bench in Satya Pal Vs. State of U.P. and others : 2000 Cr.L.J. 569 after considering the various decisions including State of Haryana Vs. Bhajan Lal and others : AIR 1992 SC 604 that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the police to investigate a case.
Further the Apex Court in the case of State of Telangana v. Habib Abdullah Jellani : (2017) 2 SCC 779 has disapproved an order restraining the Investigating Agencies arresting the accused where prayer of quashing the First Information Report has been refused.
From the perusal of the FIR, prima facie it cannot be said that no cognizable offence is made out. Hence, no ground exists for quashing of the F.I.R. or staying the arrest of the petitioner.
Accordingly, this writ petition fails and is dismissed.
The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioner (s) along with a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 6.4.2021 AS Rathore/ SK