Court No. - 83
Case :- APPLICATION U/S 482 No. - 13725 of 2021 Applicant :- Shyam Sunder Tripathi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pavan Kumar Kushwaha,Thakur Prasad Dubey Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Pavan Kumar Kushwaha, learned counsel for applicant and learned A.G.A. for State.
Perused the record.
This application under section 482 Cr. P. C. has been filed challenging charge sheet No. 34 of 2021 dated 20.01.2021 submitted in Case Crime No. 10 of 2021, under Sections 406, 504, 506 IPC, P.S. Farrukhabad Kotwali, District Fatehgarh, Cognizance Taking Order dated 26.02.2021 passed by Court concerned upon aforesaid charge sheet, as well as, entire proceedings of consequential Case No. 488 of 2021 (State Vs. Shyam Sunder Tripathi), arising out of above mentioned case crime number, now pending in the Court of Chief Judicial Magistrate, Fatehgarh.
Learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in above mentioned case crime number. Allegations made in F.I.R. are false and concocted. Entire transaction is alleged to be made in cash. There is no evidence to demonstrate that any amount was given by first informant opposite party 2 to applicant. Material on record creats a doubt regarding credibility of first informant/opposite party 2. It is lastly submitted that on material available on record, it cannot be said that any entrustment was made in favour of applicant. there was intention on part of applicant to commit fraud right from inception. As such, no offence under Section 406 IPC is made out against applicant. It is lastly contended that applicant himself has lended money to first informant/opposite party 2. Therefore, present criminal proceedings has been engineered as pressure tactics to avoid liability of first informant/opposite party 2 against applicant. It is thus urged that present criminal proceedings are not only malicious, but also an abuse of process of Court. Consequently, same are liable to be quashed by this Court.
Per contra, learned A.G.A. has opposed this application. He contends that pursuant to F.I.R. dated 4.8.2021, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. During course of investigation, Investigating Officer recorded statements of first informant and other witnesses who have supported the prosecution story as unfolded in F.I.R. On the basis of above and other material collected during course of investigation by Investigating Officer, which is substantially adverse to applicant, Investigating Officer opined to submit a charge sheet against applicant. Accordingly, charge sheet dated 20.1.2021 was submitted, whereby applicant who is named accused in F.I.R. has been charge sheeted under Section 406 IPC. It is thus urged by learned A.G.A. that at this stage it cannot be said that prosecution of applicant is false there is no material to support prosecution of applicant. Placing reliance upon paragraph 37 of judgement in Nupur Talwar Vs. C.B.I., (2012) 11 SCC, 465, it is urged that at this stage only this much is to be seen that here is material sufficient for summoning the accused not not material sufficient for convicting the accused. Charge sheet is outcome of investigation. No defect, irregularity or illegality has been pointed out in investigation of aforesaid case crime number, therefore, charge sheet so submitted cannot be challenged. On the aforesaid premise, learned A.G.A. contends that no interference be called for by this Court in present application.
When confronted with above, learned counsel for applicant could not overcome the same.
Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicants. All the submissions made at the Bar relate to the disputed defence of applicants, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court cannot appraise and appreciate evidence to record a finding one way or the other. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866 and State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.
In view of above, present application fails and is liable to be dismissed.
It is, accordingly, dismissed.
Order Date :- 12.8.2021/HSM