Court No. - 65
Case :- APPLICATION U/S 482 No. - 46040 of 2013 Applicant :- Raj Krishna Das And 4 Ors.
Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Suneel Kr.Mishra,A.P.Mishra Counsel for Opposite Party :- Govt. Advocate,Arvind Singh Sengar,Manu Sharma
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri A.P.Mishra, learned counsel for the applicants, Sri Arvind Singh Sengar, learned counsel for opposite party No.2, Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the entire proceeding of Case No.301 of 2013 (State of U.P. vs. Raj Krishna Das & others), under Sections 419, 420, 467, 468, 406, 120B IPC, Police Station Bhelpur, District Varanasi, pending in the court of ACJM-III, Varanasi and also a prayer is made to stay the proceedings in this case till the disposal of this application.
It is argued by learned counsel for the applicants that opposite party No.2 is the father of applicant Nos.1, 2 and 3 and the accused- applicant No.4 is the grand-son of opposite party No.2. In order to appreciate the arguments of the respective counsel, it would be pertinent to prefer here the facts of the case.
The opposite party No.2 has lodged an FIR against the applicants on 04.05.2019 at about 20.10 hours at Police Station Sadar, District Varanasi, stating therein that opposite party No.2 had life insurance policy Nos.283759755 and 28156047 of Rupees Three lakhs and two lakhs respectively. On 04.05.2009, he went to find out about these policies then he found that on 21.04.2009 and 10.03.2009 debt had been taken against the said policies of Rs.1,25,000/- and Rs.1,58,000/- respectively. The original bond of the policy No.283759755 was kept with the opposite party No.2 while original policy bond of policy No.28156047 was kept with his elder son Raj Krishna Das (accused-applicant No.1), in which the accused-applicant No.1 was also made a nominee. The opposite party No.2 has three sons, namely, Raj Krishna Das (applicant No.1), Madan Lal (applicant No.2) and Ratan Lal (applicant No.3). The wife of Ratan Lal is Indu Kumar and Ravi Sankar Kesari is the son of accused-applicant No.2. All the three accused (applicant Nos. 1, 2 and 3) had shown that the original policy had been lost and obtained the loan against both the said policies, in which the Branch Manger Rajnish Kumar was involved. It is also argued that the police has also submitted the charge sheet in a routine manner without paying attention to these facts, which is nothing but an abuse of process of Court and needs to be quashed.
Learned A.G.A. has vehemently opposed the quashing of charge sheet.
It is apparent from the allegations made in the FIR that the accused-applicants are alleged to have raised loan against policy bond of opposite party No.2 which was entrusted by opposite party No.2 to accused-applicant No.1. Without informing opposite party No.2, to whom the said policy belongs by committing offence of cheating as well as, the said loan amount has been taken through Bank in which there appears to be collusion of Bank employees also and hence, it cannot be said that the cognizable offence is not made out against the accused-applicants.
After investigation, charge-sheet has been submitted by the Investigating Officer after recording statements of as many as seven witnesses which cannot be disbelieved in proceedings u/s 482 Cr.P.C. From the evidence on record, it cannot be said that cognizable offence is not made out against the accused-applicants.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicants. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
(Emphasis added) The prayer for quashing the proceedings of the aforesaid case is refused.
However, the applicants may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, they may raise all the pleas which have been taken by them here.
The applicants shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused-applicants in the aforesaid case. But if the accused do not appear before the court below, the court below shall taken coercive steps to procure their attendance.
With aforesaid direction, this application is finally disposed of.
Order Date :- 25.9.2019 Ravi Kant