Court No. - 70
Case :- APPLICATION U/S 482 No. - 967 of 2019 Applicant :- Nabi Ahmad Opposite Party :- State Of Up And Another Counsel for Applicant :- Syed Wajid Ali,Santosh Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard Sri Syed Wajid Ali, learned counsel for the applicant and learned AGA for the State.
This application under Section 482 Cr.P.C. has been filed by the applicant to quash the order dated 4.12.2018 passed by XVI Additional Sessions Judge, Court No.16, Bareilly in Criminal Revision No. 296 of 2018 (Nabi Ahmad Vs. State of U.P. and another) as well as impugned order dated 20.8.2015 passed by Judicial Magistrate, Nawabganj, Bareilly in Complaint Case No. 259 of 2012 (Abdul Nabi Vs. Nabi Ahmad), under Section 406 IPC, Police Station Nawabganj, District Bareilly.
After advancing his arguments at some length, learned counsel for the applicant prayed that the applicant may be permitted to move discharge application before the court concerned as the contention of the learned counsel for the applicant is that no offence against the applicant is made out.
It is submitted that opposite party no.2 lodged FIR against the applicant on 3.7.2009 registered as Case Crime No. 541 of 2009, under Sections 406, 506 IPC, Police Station Nawabganj, District Bareilly alleging that applicant had taken amount of Rs. 54,000/- from the informant as loan in the year 2003 but did not return the same. Thereafter, the said matter has been amicably settled on 19.6.2008 and both the parties (applicant and opposite party no.2 as well as witnesses) signed the compromise document. The Investigating Officer submitted final report dated 27.7.2009 in favour of applicant and also filed the challani report before the Magistrate under Section 182 Cr.P.C. The opposite party no.2 filed protest application dated 4.8.2010 against the final report dated 27.7.2009, on which, pursuant to order dated 14.9.2010 further investigation was conducted by the Investigating Officer and again submitted final report dated 1.11.2010, but the learned Magistrate vide order dated 5.5.2012 treated the protest application of the opposite party no.2 as complaint and after recording the statement of the complainant/opposite party no.2 under Section 200 Cr.P.C. and the witnesses under Section 202 Cr.P.C. summoned the applicant by the impugned order dated 20.8.2015. The applicant preferred Criminal Revision before the XVI Additional Sessions Judge, Court No.16, Bareilly, which has been dismissed on 4.12.2018. It is submitted that the amount due upon the opposite party no.2 was paid and this is purely a case of civil nature. The impugned orders dated 20.8.2015 and 4.12.2018 are not sustainable and are liable to be quashed.
Per contra, learned AGA has submitted that the disputed questions of fact cannot be adjudicated and taken into consideration at this stage by this Court in the proceedings under Section 482 Cr.P.C. The application is liable to be dismissed.
Considering the facts and circumstances of the case and without expressing any opinion on the merit of the case, the applicant is permitted to move discharge application within three weeks from today. In case, the discharge application is moved by the applicant within the said period, the same shall be disposed of by the court concerned in accordance with law within a period of two weeks thereafter.
For the period of five weeks no coercive action shall be taken against the applicant.
With this observation, this application is finally disposed of. Order Date :- 25.1.2019 AK Pandey