Court No. - 77
Case :- APPLICATION U/S 482 No. - 47302 of 2019 Applicant :- Umesh Kumar Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Ashutosh Pandey,Raj Kumar Sharma Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard learned counsel for the applicant and learned A.G.A. representing the State. Perused the records.
This application under Section 482 Cr.P.C. has been filed by applicant Umesh Kumar against State of U.P. and Bajrang Lal Jain, with prayer to quash the summoning order dated 30.9.2019 as well as entire proceedings of Complaint Case No. 1268 of 2019, Bajrang Lal Vs. Umesh Kumar, under Sections 406, 506 I.P.C., P.S. Baradari, district Bareilly.
Learned counsel for the applicant argued that it was a malicious prosecution, wherein no offence was made out against the applicant. Rather as per Bank statement and Audit report of the firm of the applicant, it is very well apparent that entire amount has been given and paid to complainant and it was very sterling evidence, even then the summoning order has been passed. Hence this application with above prayer.
Learned A.G.A. has vehemently opposed the above argument.
This court made a specific quarry to the learned counsel for the applicant as to whether these Bank Account and Audit report were before the Magistrate before passing the summoning order or not. The reply given was that certainly it was not before the Magistrate. Meaning thereby whatever is being said by the applicant is regarding fact to be seen and appreciated by the Magistrate whenever it is brought on record before the Magistrate.
This court, in exercise of inherent power u/s 482 Cr.P.C., is not expected to embark upon factual matrix because the same is question of fact to be seen by the trial court during trial.
The complaint is with this fact that certain amount was due for which cheque was issued. Subsequently this was taken back and this all was under deceit and when money was demanded back, it was not paid. Rather usurped causing criminal breach of trust and when asked for, abuse and threat with dire consequences was extended. This fact has been reiterated in the statement recorded u/s 200 Cr.P.C. and has been corroborated in the statements u/s 202 Cr.P.C. made before the Magistrate. The Magistrate at the stage of 204 Cr.P.C. is of the opinion about prima-facie existence of elements for proceeding by way of summoning was made out from the facts brought on record. At that stage the Magistrate need not to meticulously analyse the fact and in the present case it was very well there, on the basis of which the impugned summoning order was passed. Accordingly this application merits its dismissal.
However, the applicant will be at liberty to move an application before the Magistrate and may make request for discharge either at the stage of 245(1) or 245(2) Cr.P.C. These facts be brought on record by way of cross-examination u/s 244 Cr.P.C. of the complainant.
The prayer for quashing summoning as well as proceeding of the aforesaid criminal case is refused.
However, in the interest of justice, it is provided that if the applicant appears and surrenders before the court below within thirty days from today and apply for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.
For a period of thirty days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant.
However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid directions, this application is finally
disposed of.
Order Date :- 20.12.2019 Pcl