Court No. - 15
Case :- APPLICATION U/S 482 No. - 35967 of 2016 Applicant :- Smt.Shilpi Bhati Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Shyam Lal,Abhilasha Singh,Ashutosh Yadav Counsel for Opposite Party :- G.A.,Manish Tewari
Hon'ble Umesh Chandra Tripathi,J.
Heard learned counsel for the parties.
This application under Section 482 of the Code of Criminal Procedure, 1973 (in short 'Code') has been preferred against the judgment and order dated 03.11.2016 passed by Sessions Judge, Gautam Buddh Nagar, in Criminal Revision No. 116 of 2016 (Smt. Shilpi Bhati v. State of U.P. and others) dismissing the revision against the order dated 03.08.2016 passed by Chief Judicial Magistrate, Gautam Buddh Nagar in Case No. 10535 of 2013. Vide order dated 03.08.2016, applicant Shilpi Bhati was summoned for the offence punishable under Section 120B of the Indian Penal Code, 1860 on application under Section 319 of the Code.
As per prosecution version, on 23.10.2010, co-accused Vijendra Kumar, husband of applicant Shilpi Bhati received Rs. 40 lakhs from the complainant/opposite party Prem Prakash by deceiving him and that money was deposited in the joint account of applicant Shilpi Bhati and her husband co-accused Vijendra Kumar. Later on, Shilpi Bhati was seen along with her husband Vijendra Kumar by the complainant. Applicant Shilpi Bhati was proprietor of Ashok Associates, the office which was opened in the rented shop of complainant/opposite party Prem Prakash.
Learned counsel for the applicant contended that from the perusal of entire record, no offence is made out against the applicant. P.W.1 Prem Prakash admitted in his examination-in-chief that he has only suspicion of involvement of the applicant in the commission of the offence. Accordingly, there is no evidence against the applicant. Even so, the courts below have passed the impugned order without properly appreciating the evidence on record.
Learned counsel for the applicant further contended that the impugned order passed by the trial court is based on case diary. As per law, the Magistrate cannot consider the case diary while passing an order under Section 319 of the Code. Only on the basis of evidence before the court, cognizance may be taken under Section 319 of the Code. In this regard, learned counsel for the applicant has placed reliance on the judgment of Hon'ble Apex Court in Lok Ram v. Nihal Singh and Another reported in (2006) 10 SCC 192, in which Hon'ble Apex Court held as under :
".....The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence. "
Per contra, learned counsel for opposite party and learned A.G.A. contended that money has been deposited in the joint account of applicant Shilpi Bhati and her husband co-accused Vijendra Kumar. After the occurrence, she was seen with her husband co-accused Vijendra Kumar. Accordingly, it is proved that she was involved in the conspiracy with Vijendra Kumar.
From the perusal of record, it is evident that at the time when money was received by Vijendra Kumar from Prem Prakash, applicant Shilpi Bhati was not present there. There is no evidence on record to show that she was involved in the conspiracy with her husband co-accused Vijendra Kumar. Only because money was deposited in the joint of applicant and her husband, it cannot be inferred that she was also involved in the conspiracy of committing the offence.
Accordingly, I am of the considered view that the impugned orders passed by the court below is without any evidence and the same are liable to be set aside.
In view of above, the impugned orders dated 03.08.2016 and 03.11.2016 passed by Chief Judicial Magistrate, Gautam Buddh Nagar and Sessions Judge, Gautam Buddh Nagar, respectively are hereby set aside and accordingly, the proceedings against applicant Shilpi Bhati in the aforesaid case is quashed.
Resultantly, the instant application stands allowed. Order Date :- 26.11.2018 I. Batabyal