Court No. - 40
Case :- APPLICATION U/S 482 No. - 22156 of 2019 Applicant :- Brijesh Kumar Jaiswal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Bipin Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
This application under Section 482 CrPC has been filed by the applicant with the prayer to quash the proceedings of Criminal Case No.511 of 2019 (State Vs. Brijesh Kumar Jaiswal) arising out of Case Crime No.259 of 2018, under Sections 420, 504, 506, IPC, P.S. Mughalsarai, District Chandauli as well as cognizance order dated 28.1.2019, pending in the court of Chief Judicial Magistrate, Chandauli.
As per the allegations made in the first information report, it is alleged that the applicant on the pretext of getting his son employed had taken a sum of Rs.8,00,000/- from the first informant. However, subsequently his son could not get any employment and as such he started demanding the applicant to repay the amount, but only an amount of Rs.10,000/- was returned back to the first informant and the balance amount of Rs.7,90,000/- was illegally swindled by the applicant on the basis of which the present FIR was lodged. On the basis of said FIR police investigated the matter and submitted charge sheet against the applicant on which the learned Magistrate has taken cognizance on 28.1.2019 and summoned the applicant to face trial.
From the perusal of the 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 the applicant. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C.
At this stage, disputed question of fact cannot be considered, therefore, in view of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd.
Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283, the prayer for quashing the entire proceedings as well as cognizance order is refused.
However, it is directed that if the applicant appears and surrenders before the court below within thirty days from today and apply for bail, his prayer for bail shall be considered and decided in view of settled law laid down by this Court in the case of Amrawati and another vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC).
For a period of thirty days from today or till the applicant surrenders and applies for bail, whichever is earlier, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 3.6.2019 T. Sinha