Court No. - 77
Case :- APPLICATION U/S 482 No. - 42475 of 2019 Applicant :- Mohd. Saleem Khan And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sanjive Kumar Gupta Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicants and learned A.G.A. representing the State. Perused the records.
The applicants, Mohd. Saleem Khan, Mohd Mujeev Khan, Mohd. Nadeem Khan and Mohd. Rahatyar, by means of this application, under Section 482 Cr.P.C., have invoked inherent jurisdiction of this Court, with a prayer to quash the impugned summoning order as well as entire proceeding of Complaint Case No. 826 of 2014, filed by opposite party No. 2 against the applicants, under Section 420 IPC, Police Station Kotwali, District Badaun, pending before the Judicial Magistrate-IInd, Budaun.
Learned counsel for the applicants argued that it was a malicious prosecution under misuse of process of Court. No offence was made out even then summoning order was passed. Hence, for ensuring end of justice, this application with above prayer.
Learned A.G.A. has opposed the application.
From the very perusal of application moved under Section 156(3) of Cr.P.C. by complainant Intazar Ali against Mohd. Saleem and 4 others, for offences punishable under Sections 420, 467, 468, 471 IPC, P.S. Kotwali, District Badaun, it is apparent that agreement to sale dated 30.4.2011, was executed by Mohd. Saleem Khan, Mohd. Shameem Khan, Mohd. Nadeem Khan and Rahatyar, in favour of complainant, for sale of a constructed shop, for a consideration of Rs. 4,10,000/-, and it was paid with a condition for payment of remaining amount, at the time of sale deed, which was executed within one month. But this deed was not executed. Hence, notice was issued. But even after repeated request, accused persons did not executed sale deed. Then it came to notice that above shop has already been transferred on 26.12.2011, by way of deed in favour of Afsar Hussain and others and that amount paid was usurped. Complaint was filed. The same has been reiterated in Statement under Section 200 and 202 of Cr.P.C. Agreement to sale, receipt of consideration of Rs. 4,10,000/-, is undisputed fact. Sale in favour of subsequent purchaser is also there. Magistrate on the basis of those evidences has passed summoning order for offences punishable under Section 420 IPC, which was well within the jurisdiction of Magistrate and supported by facts on record.
This Court in exercise of inherent power under Section 482 of Cr.P.C., may not analytically analysis the factual aspects because the same is to be seen by trial Court during trial. Under all above facts and circumstances, this application merits its dismissal.
Dismissed, accordinlgy.
However, in the interest of justice, it is provided that if any of the applicants appears and surrenders before the court below within thirty (30) days from today and apply for bail, then the bail application of the applicant be considered and decided in view of the settled law laid 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 reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of thirty (30) days from today or till the disposal of the application for grant of 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 stands dismissed accordingly.
Order Date :- 28.11.2019 Kamarjahan