Court No. - 76
Case :- APPLICATION U/S 482 No. - 45761 of 2019 Applicant :- Narendra Mohan Gupta @ Devi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anand Kumar Singh Counsel for Opposite Party :- G.A.,Saumitra Dwivedi
Hon'ble Mrs. Manju Rani Chauhan,J.
Second Supplementary affidavit filed on behalf of the applicant as well as the counter affidavit filed on behalf of opposite party no.2 in Court today are taken on record.
This application u/s 482 Cr.P.C. has been filed to quash the charge sheet dated 24th September, 2019, summoning order dated 22nd February, 2019 as well as the entire proceedings of Case No. 1684 of 2019 arising out of Case Crime No. 0221 of 2018, under Sections 420, 406, 352 and 506 I.P.C., Police Station-Kotwali, District-Bareilly pending in the Court of Chief Judicial Magistrate, Bareilly.
Heard Mr. Amit Saxena, learned Senior Advocate assisted by Mr. Anand Kumar Singh, learned counsel for the applicant, Mr. Saumitra Dwivedi, learned counsel for opposite party no.2 and Mr. Amit Singh Chauhan, learned A.G.A. for the State.
Entire record has been perused.
The first information report has been lodged on 20th March, 2018 at Police Station Kotwali, District-Bareilly alleging therein that on 4th November, 1999 complainant gave 1985.500 grams gold ornament to the applicant at the time of renovation of his showroom and according to bill the sales tax amounting to Rs. 18,700/- was also due against the applicant but the applicant neither paid the money for gold ornament nor returned the same to the complainant/opposite party no.2.
Learned counsel for the applicant submits that the entire prosecution case is false and fabricated on the ground that the first information report has been lodged after about 19 years from the date of alleged incident and during this period, opposite party no.2 has neither given any notice to the applicant nor he has made any complaint about the same, for which no plausible explanation has been given. There is no documentary evidence, which will go to show that the alleged gold was taken by the applicant from opposite party no.2. From the statements of one Rakesh Kumar Agarwal, Sarvesh Kumar and Pulkit Rastogi, it is apparent that the allegations made in the first information report is not correct. It is further submitted that it is not possible for a gold smith to give precious gold without any benefit or money for such a long time and complainant was waiting for payment of money for the alleged gold ornament. Neither the applicant cheated complainant nor committed criminal breach of trust. There is no oral as well as documentary evidence to prove prima facie case under Sections 420, 406, 352 and 506 I.P.C. against the applicant. It is further submitted that the court below, without applying his judicial mind, has summoned the applicant in casual manner. The present case is an abuse of process of court and law. It is lastly submitted that the Apex Court has already held that summoning order of the accused must reflect that he has applied his mind to the facts of the case and law applicable on the subject. The application of mind has to be indicated by disclosure of mind on the satisfaction. In support of his case, learned counsel for the applicant has placed reliance upon the judgment of the this Court in the case of A.B. Godrej & Another Vs. Chief Judicial Magistrate Etawah and others p(Application U/S 482 No. 2108 of 2013, decided on 23rd April, 2019 and Ram Nagina Srivastava Vs. State of U.P. (Application U/S 482 No. 5381 of 2002, decided on 30th July, 2019). Learned counsel for the applicant, therefore, submits that the entire proceedings of the aforesaid criminal case are liable to be quashed.
Per contra, learned counsel for opposite party no.2 and the learned A.G.A. for the State have opposed the prayer made by the learned counsel for the applicant by stating that all the contentions raised by the applicant's counsel relate to disputed questions of fact. On the basis of material on record after conducting of statutory investigation under Chapter XII Cr.P.C. by the investigating officer, a strong prima facie case is made out against the applicant for the commission of the alleged incident. In support of his case, learned counsel for opposite party no.2 has placed reliance upon the judgments of the Apex Court in the case of the Dilbag Rai Vs. State of Haryana & Others reported in 2019 0 AIR (SC) 693 and Central Bureau of Investigation Vs. Arvind Khanna reported in 2019 0 Supreme (SC) 1152. Vs.
I have heard the learned counsel for the parties and have gone through the records of the present application.
This Court finds that the court below has also been called upon to adjudge the testimonial worth of prosecution evidence 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 material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.
The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him 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 conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The cases of (1) Chandra Deo Singh Vs. Prokash Chandra Bose reported in AIR 1963 SC 1430, (2) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker reported in AIR 1960 SC 1113 and (3) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi reported in 1976 3 SCC 736 may be usefully referred to in this regard.
The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab reported in AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal reported in 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi reported in 1976 3 SCC 736. The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case has recognized certain categories in which Section-482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked. Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
The submissions made by the applicant's learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court 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. 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 trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicant arising out of them 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 charge-sheet or the proceedings is refused as I do not see any abuse of the court's process either.
However, it is observed that if the bail has not been obtained as yet, the accused may appear before the court below and apply for bail within two months from today. The court below shall make an endeavour to decide the bail application on the same day, if possible, keeping in view the observations made by the Court in the Full Bench decision of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC). It is also provided that if the applicant moves an application for discharge before the Court below within a week from today along with a certified copy of this order, the same shall be considered and decided in accordance with law by means of a reasoned speaking order, preferably within a period of seven weeks from the date making of discharge applciation.
For a period of two months from today, no coercive measures shall be taken against the applicant in the aforesaid criminal case.
With the aforesaid observations this application is finally disposed off.
(Manju Rani Chauhan, J.) Order Date :- 18.12.2019 Sushil/-