Court No. - 48
Case :- CRIMINAL MISC. WRIT PETITION No. - 37458 of 2018 Petitioner :- Dipesh Kumar Srivastava Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Siddharth Niranjan,Shri D.P. Singh (Sr. Adv.) Counsel for Respondent :- G.A.,Kirti Kumar Singh
Hon'ble Karuna Nand Bajpayee,J. Hon'ble Ajit Singh,J.
Rejoinder affidavit filed by the petitioner, is taken on record.
This writ petition has been filed seeking the quashing of F.I.R. dated 15.06.2018 registered as Case Crime No.0360 of 2018, under Sections 323, 504, 506, 498-A, 307 I.P.C. and 3/4 Dowry Prohibition Act, P.S.- Goverdhan, District- Mathura.
Heard Sri D.P.Singh, learned Senior Advocate, assisted by Sri P.K.Dubey, learned counsel for the petitioner and Sri Brijesh Sahai, learned Senior Advocate assisted by Sri Kartikey Sharan, learned counsel for the respondent no. 4 as well as learned A.G.A. for the State.
Submission of learned counsel for the petitioner is that the nature of the allegation would at the most make out a case of dispute in accounting and it is not a case where any deliberate dishonesty or a dishonest intention may be imputed to the petitioner. Counsel has tried to show that it was a partnership affair between the two parties but things went awry and because of the gross mutual misunderstanding the relationship has deteriorated and has come to this unfortunate situation where the first information report has been lodged against the petitioner. Submission is that the petitioner can not be held to be liable for having committed any offence and therefore the first information report ought to be quashed. Counsel has also raised several other contentions which too relate to disputed questions of fact. The court has also been called upon to adjudge the worth of prosecution allegations and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of indictment has been questioned, absence of material which may substantiate the allegations has been contended and false implication has been pleaded. It has also been submitted that the petitioner has undergone a minor surgery and is not in a good shape of health for the present and there is no need to arrest him.
Counsel appearing on behalf of the respondent no.4 has vehemently opposed the submissions made by the petitioner's counsel and it has been submitted on his behalf that in fact there was no partnership between the two parties ever. The correct fact is that the respondent no.4 is the owner of the property while the petitioner was simply a Manager of the same appointed by the respondent no.4 as he was based primarily in Lucknow while the property in question is situated at Allahabad, the place to which the petitioner belongs. There was an agreement to the same effect also wherein the aforesaid relationship has been admitted. Counsel has further gone to submit that it is not at all a case of any misunderstanding in accounting. To the contrary it is a case where the petitioner is guilty of committing rank forgery and is also guilty of committing breach of trust and dishonest intentions are apparently deducible from the conduct in which the petitioner indulged himself. The facts would show that the accused-petitioner had been showing the number of bookings wrongly while in fact many more bookings were made and registered but they were dishonestly shown to be only a few with the obvious purpose of dishonestly depriving the petitioner from profit. Apart from this the proceeds which were actually received by the petitioner have not been deposited in the account of the marriage home. To the contrary he has attempted to gobble up the whole money by depositing the same in his own personal saving account. In order to cover up his dishonest activities false receipts have been forged by the accused-petitioner. Submission is that the matter deserves serious investigation as the petitioner has deprived the respondent no. 4 of substantial amount wrongfully with dishonest purpose, design and intentions all throughout.
The law regarding sufficiency of grounds which may justify quashing of F.I.R. in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases. The view taken in the case of Satyapal vs. State of U.P. and others, 2000 Cr.L.J. 569 which was further confirmed by another Full Bench of this Court in the case of Ajit Singh @ Muraha v. State of U.P. and others (2006 (56) ACC 433) makes the position of law in this regard clear and this Court does not find it advisable to whittle down the power or scope of investigation in the given case. The operational liberty to collect sufficient material, if there exists any, cannot be scuttled prematurely by any uncalled for overstepping of the Court. It has to be an extremely discreet exercise.
The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet and the same may also be good grounds to quash the F.I.R. Some of them are akin to the illustrative examples given in the case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. The cases where the allegations made against the accused in the F.I.R. or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable or impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted only with ulterior motive or grudge and vengeance alone, may be illustratively the fit cases for the High Court in which the F.I.R. or the criminal proceedings may be quashed. If a particular case falls in some such categories as recognized by the Apex Court in Bhajan Lal's case, it may justify the interference by this Court in exercise of its inherent power as provided in Code of Criminal Procedure or in exercise of its powers vested by the Constitution of India.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case and considered the rival submissions made at bar.
The submissions made by the petitioner's learned counsel call for determination on pure questions of fact which may be adequately discerned either through proper investigation or which may be 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 in case a charge sheet is submitted in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. This Court also does not deem it proper to suffocate or trammel the ambit and scope of independent investigation into the case. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during investigation or trial. But it shall suffice to observe that the perusal of the F.I.R. makes out prima facie offences at this stage and there appear to be sufficient ground for investigation in the case. We do not find any justification to quash the F.I.R. or the proceedings against the accused arising out of it as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
The prayer for quashing the same is refused as we do not see any breach of constitutional provisions or any abuse of the process of law.
However, in view of the peculiar facts and circumstances of the case, it is directed that in case after surrendering in the court below an application for bail is moved on behalf of the accused within four weeks from today, the same shall be considered and decided in accordance with law.
In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures like arrest shall be taken or given effect to.
It is clarified that this order has been passed only with regard to the accused on behalf of whom this writ petition has been moved in this Court.
With the aforesaid observations, this writ petition is finally disposed off.
Order Date :- 20.12.2018 R./