Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 1237 of 2019 Petitioner :- Rajesh Kumar Sharma Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shashank Tripathi Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the petitioner; learned A.G.A. for the respondents 1 and 2; Sri Ratan Kumar Mishra, holding brief of Sri P.K. Singh, learned counsel for the respondent no. 3; and perused the record.
The instant writ petition seeks quashing of the First Information Report dated 30.12.2018, registered as Case Crime No.1220 of 2018, under Sections 420, 467, 468, 507 I.P.C., Police Station Naubasta, District Kanpur Nagar.
The allegation in the impugned F.I.R, which has been lodged by respondent no.3, is as regards non-performance of contractual obligation.
From the record, it appears that the contract was between Smt. Reeta Kapoor, through Power of Attorney-holder, Aditya Awasthi, and Shobha Devi (the informant). The petitioner is not party to the agreement and has also not signed as witness to the agreement.
The allegation against the petitioner, however, is that the petitioner had been instrumental in the agreement.
On 18.01.2019, after considering the submission of the learned counsel for the petitioner, the Court had passed the following order :-
"The contention of the learned counsel for the petitioner is that the petitioner had only brokered the deal between power of attorney holder-co accused (Aditya Awasthi) of the original allottee (Reeta Kapoor) and the informant (Shobha Devi) and had not made any false promise and representation and therefore no offence could be stated to have been committed by the petitioner. It has been submitted that Aditya Awasthi (co- accused) has a registered power of attorney in his favour from Reeta Kapoor and on the basis of that power, he has executed agreement for sale dated 25.05.2016 and therefore the allegation that Aditya Awasthi has no power to execute the agreement is misconceived. It has been submitted that in so far as non-performance of the agreement is concerned, that only provides a civil cause of action and therefore the first information report is liable to be quashed.
The matter requires consideration.
Learned A.G.A. has accepted notice on behalf of respondents 1 and 2.
Let notice be issued to the respondent no.3 (Shobha Devi), fixing 14.03.2019.
List this case on 14.03.2019. By the next date, the respondents shall file their respective counter affidavits.
Till the next date of listing or till submission of police report under Section 173(2) Cr.P.C., whichever is earlier, the petitioners shall not be arrested in Case Crime No.1220 of 2018, under Section 420/467/468/507 I.P.C., P.S. Naubasta, District Kanpur Nagar.
It is made clear that investigation of the case has not been stayed."
A counter affidavit has been filed by the Sub Inspector of Police, Police Station Naubasta, District Kanpur Nagar, in which, there is no specific disclosure as regards collection of any material showing the involvement of the petitioner in the crime though it is stated that the investigation is still going on.
In view of the above, keeping in mind that the petitioner is not one of the contracting parties to the agreement, we deem it appropriate to dispose off the petition by providing that investigation of the aforesaid case shall continue and be brought to its logical conclusion but, subject to petitioner's co-operation in the investigation, he shall not be arrested in the above noted case till submission of police report under Section 173(2) Cr.P.C.
For the said purpose, the petitioner shall make himself available for interrogation as well provide specimen signature etc. as and when required by the Investigating Officer.
A failure in that regard, would be deemed non-co-operation in the investigation.
The writ petition stands disposed off.
Order Date :- 29.4.2019 m.a.