1. This application under Section 482 Cr.P.C. has been preferred for quashing of summoning order dated 09.03.2012 as well as entire proceedings of Complaint Case No. 2133 of 2012 (Pradeep Kumar Jain Vs. Dara Singh Kuldeep), under Sections 406, 506 of IPC, Police Station Sihani Gate, District Ghaziabad pending in the Court of A.C.J.M., III, Ghaziabad.
2. Heard Sri Dharam Pal Singh, learned Senior Counsel assisted by Sri Mangal Rai, learned counsel for applicants, Sri Anshul Tiwari, learned counsel for opposite party no.2 and learned AGA for State.
3. It has been argued by learned Senior Counsel that matter in dispute is purely of civil nature and no prima facie offence is made out. It was stated that both the parties have entered into a partnership and in that connection complainant/respondent no.2 has paid an amount of Rs.15,00,000/- to the applicant through cheque, which was credited in bank account of applicant, however, the allegation regarding alleged second payment of Rs.20,00,000/- is false and baseless. Learned Senior Counsel has pointed out a copy of affidavit annexed as annexure 5 and submitted that the said partnership was dissolved on 21.04.2009. It was stated that due to clerical error the date on said affidavit is shown 21.04.2008 but from date attestation of the affidavit, it is clear that the said affidavit sworn in on 21.04.2009. Learned counsel submitted that alleged payment of Rs.15,00,000/- was made regarding business of firm and after that on 21.04.2009 the said partnership has been dissolved and thus, no prima facie case is made out. It was further submitted that the impugned summoning order has been passed in a cursory manner without application of judicial mind and even the facts of the matter were not touched therein. Learned Senior Counsel submitted that in view of above stated facts, no prima case is disclosed and the impugned complaint and summoning order are liable to be set aside.
4. Learned counsel for respondent no.2 has opposed the application and argued that the payment of Rs.15,00,000/- has been made to the applicant through cheque and that payment has not been disputed by the applicant. After that, Rs.20,00,000/- were also paid to the applicant and that there are allegations against the applicant that on 15.07.2011 he has threatened the respondent no.2 by putting pistol at his head and that he has also committed breach of trust in respect of above stated payment made by respondent no.2. Learned counsel submitted that in view of allegations made against applicant and material on record it cannot be said that the prima facie case is not made out.
5. I have considered the rival submissions and perused record.
6. So far the question of quashing of impugned complaint proceedings is concerned, the legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Hon'ble Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases.
7. In the instant matter, the submissions raised by learned counsel for the applicant call for determination on questions of fact which may be adequately adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court. Adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section 482 Cr.P.C. In view of the material on record it can also not be held that the impugned criminal proceeding are manifestly attended with mala fide and maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
8. After considering arguments raised by the learned counsel for parties and perusing the impugned complaint and the materials in support of the same, this Court does not find it to be a case which can be determined or gone into in an application under Section 482 CrPC. This Court cannot hold a parallel trial in an application under Section 482 Cr.P.C. No such ground appears to be available to the applicant, on the basis of which the impugned complaint can be quashed going by the settled law in R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another 2005 SCC (Cr.) 283. In view of aforesaid, no case for quashing of impugned complaint/proceedings is made out. Hence prayer for quashing of proceedings is refused.
9. However, so far the impugned summoning order is concerned, it appears that it has been passed in a mechanical manner and there is nothing to indicate any application of judicial mind. It is fairly well settled that before issuing process and setting criminal proceedings in motion, the Magistrate is not only required to see the prima facie case but has also to be satisfied that there is sufficient material to proceed against the accused after examining the contents of the complaint and the statements of the complainant and the witnesses and other evidence. The Supreme Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749 has held that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
10. In the instant matter, it may be observed that impugned summoning order has been passed in a mechanical way and there is nothing to indicate that judicial mind was applied while passing the summoning order. In the impugned order, merely it was stated that on the basis of statement of complainant and of witnesses there was sufficient basis for summoning the applicant/accused. Even it was not stated that what were the allegations in complaint. Though the detailed reasons are not required to be given while passing a summoning order but nevertheless as stated above, summoning order must reflect application of judicial mind, as the summoning of a person as accused, is an important matter and such an order cannot be passed in a routine manner without applying judicial mind. In the instant matter, the impugned summoning order does not stand scrutiny of judicial precedents and thus, the impugned summoning order is liable to be set aside.
11. In view of aforesaid, the prayer for quashing of impugned proceedings is hereby refused. However, the impugned summoning order dated 09.03.2012 is set aside and learned court below is directed to pass an order on the point of summoning afresh in accordance with law.
12. Application under section 482 CrPC is disposed off in above terms.
Dated: 26.02.2021 Mohit Kushwaha (Raj Beer Singh, J.)