Court No. - 87
Case :- APPLICATION U/S 482 No. - 46775 of 2019
Applicant :- Honeyy Katiyal
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Nisheeth Yadav,Sri C.B. Yadav, (Senior Advocate)
Counsel for Opposite Party :- G.A.
Hon'ble Virendra Kumar Srivastava,J.
Heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.
The present 482 Cr.P.C. application has been filed to quash/stay the order dated 13.02.2018 whereby bailable warrants has been issued and order dated 30.04.2019 and 01.07.2019 whereby non-bailable warrant has been issued by the ACJM, II, Gautam Budh Nagar, in complaint Case No. 1482 of 2013, under Section- 420 IPC Police Station- Sector 58, Noida, District- Gautam Budh Nagar, pending in the court of Additional Chief Judicial Magistrate- II, Gautam Budh Nagar.
Learned counsel for the applicants submits that the applicants are innocent and have been falsely implicated in the present case. Learned counsel further submits that applicant has not received any money either from informant or from the corporation to whom the money was paid by O.P. No.3. Learned counsel for the applicants further submits that the whole proceeding is nothing but misuse process of law and liable to be quashed. Learned counsel further prayed that applicant may be permitted to appear before concerned Magistrate through counsel.
Learned A.G.A. has vehemently opposed and submits that upon the instigation and persuasion of the applicant, huge amount was taken by the Director/Owner of the real-estate i.e., 'Pragati Velly Project' and sale deed was also executed but possession of the alleged plot has not been given. Thus, by cheating the O.P. 3, the applicant and his associates have dishonestly taken huge amount. Learned A.G.A. further submits that sufficient material and evidence is available on record to prove the cognizable offence and the impugned order is not liable to be quash.
Allegation made in the complaint is to the effect that applicant and one Tejasvi Kapoor, are C.E.O. and director of investors clinic situated at Noida, Gautam Budh Nagar. Upon instigation and persuasion of applicant and co-accused Tejasvi Kapoor, O.P. No. 3, had purchased a plot in 'Pragati Vally Project', situated at Mumbai, but the possession of plot was never handed over to her as the said land of the project was owned by other person.
Record shows that the complaint was filed in the year 2013 and the applicant was summoned on 28.03.2014 but did not appear before the concerned Magistrate.
Hon'ble Supreme Court in Sri R.P. Kapoor and Ors. vs. The State of Punjab AIR 1960 SC 866, Madhu Limaye vs. The State of Maharashtra AIR 1978 SC 447, State of Harayana & Ors. vs. Bhajan Lal and Ors. 1992 Supp. (1) SCC 335 and Parabatbhai Ahir & Ors. Vs. State of Gujarat AIR 2017 SC 4843, Sav. Kamal Shivaji Pokemaker Vs. State of Maharashtra AIR (2019) SC 847 after discussing the nature and scope of power of High Court U/s 482 of Code of Criminal Procedure (code), has held that the High Court can exercise the inherent powers provided under Section 482 of the Code only to prevent the misuse of the process of any Court or to secure the ends of justice and this power can only be exercised when no other specific remedy is available to the applicant under the provision of the Code. It has also been established that no interference is required with the order passed by the Magistrate under Section 190 of Code, regarding taking the cognizance of the offence or u/S 204 of the Code regarding the summoning of accused, if prima-facie offence is made out from consideration of material available on record. At this stage, merit of the case or truthfulness of the material on record cannot be adjudged.
From perusal of the material on record and looking into the facts and circumstances of the case, it cannot be said at this stage that no offence is made out against the applicants. All the submissions made by the learned counsel for the applicants relate to disputed question of fact which cannot be adjudged at this stage. At this stage, only prima-facie case is to be seen in the light of law laid down by the Apex Court in above mentioned cases. Accordingly, in view of the above the prayer for quashing the entire proceedings is refused.
Learned counsel for the applicant at this stage submitted that applicant may be allowed to appear through his counsel before the concerned Magistrate. This plea can not be accepted in view of gravity of offence and also because it is settled principle of law that unless the personal attendance of accused is not exempted by the Court concerned u/s 205 of the Code, while issuing process, the attendance of accused in person is mandatory.
However, as prayed further, if applicants appear or surrender before the Court concerned within 30 days from today and apply for bail, the prayer shall be considered as expeditiously as possible preferably same day by the Court below in accordance with law.
With the aforesaid direction/observation, the instant application is disposed off.
Order Date :- 18.12.2019 S.K.