Court No. - 75
Case :- APPLICATION U/S 482 No. - 15123 of 2018 Applicant :- Chhunnu Lal Gupta And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shive Datta Yadav Counsel for Opposite Party :- G.A.,Ajay Kr. Srivastava,Sanjay Kr. Srivastava
Hon'ble Rajiv Gupta,J.
Learned counsel for the applicants has filed rejoinder affidavit today in the Court, which is taken on record.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record.
This application under Section 482 Cr.P.C. has been filed by the applicants for quashing of the summoning order dated 07.12.2017 as well as the entire proceedings of Complaint Case No.7511 of 2017 (Vikash Singh Vs. Chhunnu Lal Gupta), under Sections 406, 420, 120B I.P.C., P.S. Kalyanpur, District Kanpur Nagar, pending before the court of Additional Chief Metropolitan Magistrate II, Kanpur Nagar.
As per the allegations made in the FIR, it is alleged that the applicant had taken a sum of Rs.4,00,000/- and certain jeweleries from the Opposite Party No.2 for getting him employed. However, the Opposite Party No.2 did not get any employment and as such asked the applicant to return back his money but the applicant refused to return the same.
The contention of counsel for the applicants is that no offence against the applicants is disclosed and the present application has been instituted with a malafide intention for the purposes of harassment. He has also pointed out certain documents in support of his contention.
Per contra, learned AGA has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, prima facie offence is clearly made out against the applicants and as such, summoning order as well as the entire proceedings cannot be quashed.
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 applicants. 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 summoning order as well as the entire proceedings is refused.
However, it is directed that if the applicants appear and surrender before the court below within thirty days from today and apply for bail, their 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 applicants surrender and apply for bail, whichever is earlier, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the court below within the aforesaid period, coercive action shall be taken against them.
With the aforesaid directions, this application under Section 482 CrPC is finally disposed of.
Order Date :- 29.11.2019 Zafar