Court No. - 72
Case :- APPLICATION U/S 482 No. - 910 of 2017 Applicant :- Raj Kumar Agarwal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- S.N. Pandey,Himanshu Pandey Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. List revised. None is present on behalf of the opposite party no.2.
2. Heard Sri A.K. Pandey, Advocate holding brief of Sri Himanshu Pandey, learned counsel for the applicant and Sri Ankit Srivastava, learned AGA for the State.
3. The present 482 Cr.P.C. application has been filed to quash/set aside the order dated 28.11.2016 passed by the Additional District Judge, Court No.3, Mathura in Revision No.167 of 2014 as well as the order dated 17.12.2013 passed by the learned Judicial Magistrate, Court No.6, Mathura, by which the applicant's discharge application has been rejected.
4. In short, it has been submitted that the learned Magistrate has completely misdirected himself in rejecting the discharge application on two fold reasoning. First, it has been reasoned that the order of this Court dated 07.11.2012 passed in Criminal Misc. Writ Petition No.14478 of 2012 was obtained on concealment of material fact that the summoning order dated 29.04.2011 had been made subject matter of Criminal Revision No.214 of 2011, which had been rejected by order dated 09.07.2012. That order having attained finality, according to the learned Magistrate, there did not survive any occasion for consideration of the discharge application specially when the fact of the filing and dismissal of the criminal revision had been concealed.
5. Second, according to the learned Magistrate, the account opening form allegedly submitted by Baldeo Prasad, Smt. Prabha Goyal and Smt. Tara Devi with the ICICI Bank Ltd. contained the forged signature of the complainant/informant (Rajendra Singh).
6. In this regard, it has been submitted that by means of Criminal Misc. Writ Petition No.14478 of 2012, the applicant had challenged both the order dated 29.04.2011 passed by the learned Judicial Magistrate, Mathura in Case No.1008 of 2007 and also order dated 09.07.2012 passed by the Additional Session Judge, Court No.10, Mathura in Criminal Revision No.214 of 2011 arising from the order dated 29.04.2011. Therefore, the observations made by the learned Magistrate are stated to be plainly erroneous, if not perverse.
7. As to the second aspect, it has been submitted that, at this stage, there is no denial made by the opposite party no.2 to the document filed with the present application as true copy of the account opening form submitted by Baldeo Prasad and Smt. Prabha Goyal before ICICI Bank Ltd. The averments made in paragraph 28 of the affidavit filed in support of the present application has remained unrebutted, in reply given thereto in paragraph 10 of the counter affidavit of opposite party no.2. Therefore, it has been submitted that the learned court below has completely misdirected in rejecting the discharge application.
8. Learned AGA on the other hand would submit that besides the above, there are certain other observations made by the learned Magistrate in the context of other signatures wherein some opinion of the handwriting expert had been obtained and therefore, at present, there is no defect in the rejection of the discharge application. This objection raised by learned AGA has been met by the learned counsel for the applicant who has submitted at the moment, the substance of the charge is allegation contained in the application under Section 156(3) Cr.P.C. and the complaint. Neither of them refer to any allegation other than the allegation of forged signatures on the account opening form submitted by Baldeo Prasad and Smt. Prabha Goyal with the ICICI Bank Ltd. and on some efforts made by those persons alongwith Raj Kumar Agarwal to operate a bank account in the name of the firm M/s Mayur Press which at the relevant time was a partnership concern of Baldeo Prasad, Smt. Prabha Goyal and Smt. Tara Devi alongwith the opposite party no.2.
9. Having heard learned counsel for the parties and having perused the record, in the first place, it does not require any reasoning to reach a conclusion that the applicant had in fact, specifically challenged the order dated 09.07.2012 in Criminal Misc. Writ Petition No.14478 of 2012. Plain reading of the prayer clause of that petition establishes it. The fact that such challenge was not noted in the order passed by this Court, can never lead to a conclusion that there was concealment practised by the applicant. The reasoning of the learned Magistrate to that extent is plainly impermissible.
10. As to the other reasoning offered by the learned Magistrate, again, in view of the facts noted above and on perusal of the document annexed with the affidavit filed in support of the present application, it appears that, the case diary does not contain any document in the shape of account opening form wherein the signatures of opposite party no.2 may have been placed either by manipulation or otherwise. That document appears to contain photographs and signatures of Baldeo Prasad and Smt. Prabha Goyal only. Therefore, merits of the discharge application apart, the reasoning offered by the learned Magistrate is clearly erroneous and not arising from the material existing on record.
11. Accordingly, the present application is allowed. The order dated 28.11.2016 passed by the Additional District Judge, Court No.3, Mathura in Revision No.167 of 2014 as well as the order dated 17.12.2013 passed by the learned Judicial Magistrate, Court No.6, Mathura is set aside and the matter is remitted to the learned Magistrate to pass a fresh order strictly on the basis of material existing on record. The aforesaid exercise may be concluded as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order after hearing all necessary parties.
12. It is made clear that discharge application may be dealt with and decided on the same terms as has been directed by this Court vide order dated 07.11.2012 in Criminal Misc. Writ Petition No.14478 of 2012.
Order Date :- 26.4.2019 Abhilash