Judgement By means of the present petition under section 482 of Code of Criminal Procedure (for short Cr.P.C.), the petitioner has prayed for quashing the charge-sheet no. 54A of 2012 dated 7.6.2012 arising out of case crime no. 89 of 2012, P.S. Thakurganj, District Lucknow under sections 384,452,420,506 and 120-B IPC and summoning order dated 20.7.2012 passed by the learned Additional Chief Judicial Magistrate (CBI), Lucknow in pursuance of the aforesaid charge sheet.
Brief facts for deciding this petition are that father of petitioner late Gangadhar Gupta was allotted the distributorship of Liquid Petroleum Gas (for short LPG) under freedom fighter's quota in the year 1984. He passed away in 2006. Thereafter the Territory Manager, Bharat Petroleum Corporation Ltd (for short ''BPCL') vide order dated 24.2.2006 granted temporarily distributorship to the mother of the petitioner Smt. Saraswati Devi. The petitioner's mother also passed away on 15.4.2009. Though father and mother in their life time had moved to BPCL for transferring the proprietorship/distributorship of Gas Agency; namely; M/s Saraswati Gas Service in the name of petitioner Harendra Kumar Gupta but inspite of it after death of Smt. Saraswati Devi, the mother of the petitioner, BPCL suspended the distributorship. The petitioner wrote a letter to the BPCL to reconstitute the dealership of M/s Saraswati Gas Service in the name of petitioner on the basis of the will of the father, but BPCL did not pay heed to it. Therefore, the petitioner filed a writ petition bearing no. 1297 of 2010 (M/B) before this Court . In that writ petition Shailendra Kumar and Yogendra Kumar the brothers of petitioner, were also impleaded as party. This Court vide order dated 29.4.2010 disposed of the said writ petition with direction that transfer of dealership in the name of petitioner shall be considered by the Corporation and the same shall not be refused merely on the ground that 'no objection certificate' has not been furnished by Sri Shailendra Kumar and Sri Yogendera Kumar.
After the order passed by this court in the aforesaid writ petition, the BPCL considered but rejected the prayer for reconstitution of dealership made by the petitioner vide its letter dated 28.9.2010. Aggrieved by the same, the petitioner again filed another writ petition bearing no. 11716 of 2010 (MB) before this Court. The brother of petitioner Yogendra Kumar Gupta also filed a writ petition bearing no. 5535 of 2010 (MB). Both petitions were clubbed together and decided by common order dated 4.7.2011, whereby the writ petition filed by the petitioner was disposed of with direction that the Corporation shall proceed in the matter in accordance with law without insisting for any ''no objection' from Smt. Usha Gupta and writ petition filed by Yogendra Kumar Gupta was dismissed with direction to seek remedy before appropriate forum as provided under law. The brother of petitioner Yogendra Kumar Gupta filed Review Petition bearing no. 214 of 2011 for reviewing the order dated 4.7.2011 passed by this Court. This Court vide order dated 4.8.2011 dismissed the review petition.
In pursuance of the order dated 4.7.2011 a request was made by the petitioner to BPCL for reconstitution of Distributorship of M/s Saraswati Gas Service in his name. Ultimately, the dealership was reconstituted in the name of petitioner. It is stated that BPCL transferred 1827 customers of M/s Sarawati Gas Service owned by the petitioner to another dealer of Lucknow M/s Shalimar Gas Service of opposite party no. 2 for supply of LPG. The action of transferring the customers of M/s Saraswati Gas Service to M/s Shalimar Gas Service gave annoyance to petitioner. The petitioner objected it to BPCL.
The opposite party no. 2 lodged First Information Report on 22.2.2012 against the petitioner and four others namely Sudhir Kamlesh Gautam, Rahul Gautam, Kirti Pandey and Raju at case crime no. 89 of 2012 under sections 452,120-B, 384, 420,506 507 IPC in P.S. Thakurganj, District Lucknow for extorting money and also for hatching criminal conspiracy against O.P. No.2 to mange the cancellation of distributorship of M/s Shalimar Gas Agency and for getting the same by petitioner in his name.
The FIR is based mainly on video recording of conversation made in between opposite party no. 2, the informant and accused persons S.K.Gautam and Rahul Gautam, non applicants. On the basis of that conversation it reveals that petitioner conspired with other accused against the opposite party no.2. A charge-sheet dated 19.4.2012 having no. 54 of 2012 was filed against S.K.Gautam after investigation. Thereafter, second charge-sheet having no. 54A of 2012 was filed on 7.6.2012 against Kirti Pandey, Raju and present petitioner Hemendra Kumar Gupta. Third charge-sheet having no. 54B of 2012 was filed against accused Rahul Gautam. During pendency of this petition, the trial proceeded against accused persons. After trial S.K.Gautam and Rahul Gautam the non petitioners, were convicted.
Counter affidavit has been filed by opposite parties reiterating the allegation made by prosecution.
The Counter affidavit has also been filed on behalf of the State in compliance of the order dated 2.7.2014. The copy of the transcripts of video recording made in between the accused persons S.K.Gaultam, Rahul Gautam and complainant were placed on record. It is also mentioned in para 10 of the affidavit that in the aforesaid case accused Sudhir Kamlesh Gautam and Rahul Gautam were convicted after full trial under sections 384 and 120-B IPC with imprisonment of three years and one year respectively along with fine.
I have heard Shri Vivek Raj Singh, learned counsel for the petitioner and Shri Nadeem Murtaza, learned counsel for the opposite party no. 2 and learned AGA and also perused the record of this case.
Learned counsel for the petitioner has submitted that there is nothing on record to connect the present petitioner with alleged crime as no conversation of the present petitioner with opposite party no.2 has been brought on record. The name of petitioner was unnecessarily dragged in the conversation though, he has no concern with any of the co-accused. It is further submitted that no allegation is against the petitioner that he ever extended any threats or tried to extort the money. Therefore, no case is made out against the petitioner and the petitioner has wrongly been summoned by the learned Magistrate under the aforesaid sections. Moreover, accused, who were convicted under section 384 and 120-B IPC were acquitted by the court below for other charges leveled against them. On the strength of the aforesaid submission, the learned counsel for the petitioner has submitted that proceedings initiated against the petitioner are abuse of process of court and are mala fide. Consequently they deserve to be quashed.
Learned counsel appearing for the opposite party no.2 has submitted that in this case charge-sheet has been filed against the petitioner on the basis of sufficient evidence. The video recording is sufficient to implicate the petitioner in the commission of crime. The C Ds of Video recordings were found in-tact, uninterrupted and continuous by the Forensic Science Laboratory and the court relied upon the conversation made in between the S.K. Gautam and Rahul Gautam with opposite party no. 2. As such the video recording was found by the court genuine and as such is a strong piece of evidence against the present petitioner. It is further submitted that offence under section 120-B IPC is made out against the petitioner. Sufficient evidence in view of section 10 of the Evidence Act is available to establish prima facie case against the petitioner with the aid of section 120-B IPC. In such case it is not necessary to establish the guilt of a conspirator /accused by direct evidence.
The jurisdiction under section 482 Cr.P.C. should be exercised sparingly and when the court is satisfied that the proceedings are abuse of process of court and have been initiated with mala fide intention to harass the accused or to secure the ends of justice. It shall not be proper at this stage to meticulously analyse the material available on record against the petitioner because it may adversely effect the interest of the parties.
In Padal Venkata Rama Reddy Alias Ramu Vs. Kovvuri Satyanarayana Reddy and others (2011) 11 SCC 437 the Apex Court observed that if complaint does not disclose any offence or complaint is frivolous or oppressive the criminal prosecution may be quashed under S.482 Cr.P.C. but the High Court cannot get into meticulous analysis of facts as to likelihood of acquittal or conviction. It is not permissible for the High Court to concluded that ingredients of offence are not made out after meticulously analysing FIR,charge sheet and statement of witnesses.
A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused as held in Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana v. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar v. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan v. Vijay Kumar [2001 (8) SCC 645], and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The case in hand is not does not come in the aforesaid category.
Suffice it to say that it is not a case of no evidence specially after conviction of co accused and in presence of conversation in between O.P. No.2 and accused S.K. Gautam. Thus,the impugned order summoning the petitioner on the basis of impugned charge sheet cannot be quashed at this stage.
The petitioner has a remedy to move appropriate application at appropriate stage of trial for discharge. If such application is moved by the petitioner after putting his appearance in accordance with law within three weeks from today, the trial court after considering the material available on record and after hearing the parties shall dispose of that application expeditiously preferably within a month thereafter.
Considering the facts and circumstances of this case it is also provided that if the petitioner surrenders before the courts below within three weeks from today and moves application for bail, the same shall be considered and disposed of expeditiously by the courts' below in view of the law laid down by the Apex Court in the case of Lal Kamlendra Pratap Singh Versus State of U.P.: 2009(4) S.C.C. 437. For three weeks or till the date of surrender , which ever is earlier, no coercive steps shall be taken against the petitioner.
In view of the above I am of the view that this petition lacks merit and and is accordingly disposed of.
Order Date:17.11.2014 GSY