Rajendra Kumar Gupta vs State Of U.P. & Another
2014 Latest Caselaw 299 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Criminal Misc. Application No. 13742 of 2008
 
Rajendra Kumar Gupta Versus  		State of U.P. and another 
 
Connected with 
 
Criminal Misc. Application No. 32019 of 2008
 
Surendra Kumar Gupta and another Versus  State of U.P. and 										another
 
Hon'ble Ravindra Singh,J.

Heard Sri G.S. Hajela and Sri V.P. Rai, learned counsel for the applicant Sri Rajendra Kumar Gupta in criminal misc. application no. 13742 of 2008 Sri Pankaj Shukla, learned counsel for the applicants Surendra Kumar Gupta and Sagun Gupta in criminal misc. application no. 32019 of 2008 and Sri V.P. Gupta, learned counsel for O.P. No. 2 Tarun Agarwal, in both the applications.

Criminal misc. application no. 13742 of 2008 has been filed by the applicant Rajendra Kumar Gupta with a prayer to quash the summoning order dated 8.5.2008 passed by the learned Chief Judicial Magistrate, J.P. Nagar in case no. 1240 of 2007. The criminal misc. application no. 32019 of 2008 has been filed with a prayer to quash the proceedings of criminal case no. 1240 of 2007 pending in the court of learned Chief Judicial Magistrate, J.P. Nagar, both the applications have been filed with a prayer to quash the proceedings of Criminal Case No. 1240 of 2007 pending in the court of learned Chief Judicial Magistrate, J.P. Nagar, therefore, both the applications are being disposed of by a common order.

The facts in brief of this case are that the FIR of this case has been lodged by O.P. No. 2 Tarun Agarwal against the applicants Rajendra Kumar Gupta, Sagun Gupta and others on 10.5.2007 at 5.00 p.m. in case crime no. 634 of 2007 under sections 420,504,506 I.P.C. P.S. Amroha Dehat district J.P. Nagar, the above mentioned FIR has been lodged in pursuance of the order passed by the learned magistrate concerned in exercise of the power conferred under section 156(3) Cr.P.C,. It is alleged that O.P. No. 2 Tarun Agarwal was carrying on the business of share and commodity. He had obtained training from R.K. Investment Consultant, Moradabad, M/s Gupta Consority Private Limited, New Dehli, National Commodity of Derogative Mumbai, M/s Vagmans Exchange Mumbai, M/s Vagmans Additional Exchange, New Delhi and National Stock Exchange of India, Amroha. The Manager, Operator, Director, Proprietor and Manager of the above mentioned three companies namely Smt. Neeraj Gupta wife of Sri R.K. Gupta, R.B. Gupta and Sri Naudeep Varshney, Sri S.B.Gupta and his son Sagun Gupta were very clever businessmen, they were misappropriating money of the persons by way of getting the investment done in share and commodity. O.P. No. 2 was having the business relationship with the above mentioned persons. O.P. No. 2 came to know about six months back that the above mentioned persons had misappropriated the money of many persons. O.P. No. 2 had also invested money in the aforesaid business, then O.P. No.2 demanded money from the above persons, which was invested by him in the aforesaid business, but the above mentioned persons were avoiding to return the money, thereafter, they returned the amount of Rs. 41 lacs, remaining amount of Rs. 84 lacs and 50 thousand,which was due, not returned to him. Thereafter, O.P. No. 2 enquired from the Stock Exchange, where he came to known that by forging the signature of O.P. No. 2 in a fraudulent manner, business was done, the amount paid for investment in business was not invested in toto. O.P. No. 2 had invested the money relying upon the accused persons, on 11.4.2007 when O.P. No. 2 along with his friend Sumangalam was sitting in his office, Sri R.K. Gupta, his wife Smt. Neeru Gupta and his son Naudeep Varshney, Sri S.K. Gupta, his son Sagun Gupta alongwith some miscreants came there in a vehicle, they hurled abuses by uttering that today account would be settled, they forcibly entered into the office of O.P. No. 2 by extending threat that in case any complaint was made, O.P. No. 2 and his family members would be done to death, they extended threat that they have not invested the money in business and they refused to return that amount and O.P. No. 2 was asked to do whatever he likes, since then the above mentioned persons were extending threat of life, misbehaving with him and not returning his money, O.P. No. 2 was rescued by Rohtas, Sanjay but after extending threat, they left the office of O.P. No. 2.

After lodging the FIR of the above mentioned incident, investigation was done by the I.O. who submitted the final report, the same was protested by O.P. No. 2, protest petition was filed along with the affidavits and some documents, the same was allowed and final report dated 8.10.2007 submitted by the I.O. was rejected on 8.5.2008 by the learned Chief Judicial Magistrate, J.P. Nagar and vide order dated 8.5.2008 Sri R.K. Gupta, Smt. Neeru Gupta, Sri Naudeep Varshney, Sri S.K. Gupta, and Sri Sagun Gupta were summoned to face the trial for the offence punishable under sections 406,420,467,468,471,452, 504 and 506 I.P.C., it was also directed that the proceedings of case would be commenced as a State case. The order dated 8.5.2008 has been challenged by one of the accused Rajendra Kumar Gupta by way of filing criminal misc. application no. 13742 of 2008, the proceedings arising out of the summoning order dated 8.5.2008 have been challenged by Surendra Kumar Gupta and Sagun Gupta by way of filing criminal misc. application no. 32019 of 2008.

It is contended by the learned counsel for the applicants that:-

1. In the present case in pursuance of the order passed by the learned magistrate concerned in exercise of the power conferred under section 156(3) Cr.P.C. the FIR was registered, which was properly investigated and after completing the investigation final report has been submitted, the final report was protested by O.P. No.2 by way of filing a protest petition along with his affidavit and some other documents, The learned Chief Judicial Magistrate, J.P. Nagar has relied upon the police report as well as the affidavit filed by O.P. No. 2 and others documents filed along with protest petition, thereafter, he rejected the final report and summoned the accused persons to face the trial for the offence punishable under sections 406,420,467,468,471,452,504 and 506 I.P.C. The learned Chief Judicial Magistrate, J.P. Nagar has not adopted proper procedure in taking cognizance against the accused persons. He adopted a mixed procedure in taking the cognizance of summoning the accused persons, which is not permitted in law. The learned Chief Judicial Magistrate, J.P. Nagar also directed that the proceedings of this case shall be commenced as State case, which is not proper.

2. O.P. No. 2 lodged the FIR which is based on false and frivolous allegations, application under section 156(3) Cr.P.C. and the protest petition filed by O.P. No.2 had been filed with malafide reasons in order to harass the applicants and his family members with ulterior motive whereas all the three cases referred in the FIR were sent for arbitration and decided against O.P. No. 2 with the finding that no such payment/claim were standing against the applicants and other co-accused persons which should be honoured by him, all the transactions made between the parties have been fulfilled by both the parties, in a proceedings of arbitration, final conclusion was drawn on the basis of the agreement dated 21.3.2006.

3.after accepting the money and written agreement/receipt O.P. No.2 filed a complaint dated 31.5.2006 before the National Commodity Derogative Exchange by making a claim of Rs. 69 lacs and 50 thousand, which was decided on merits in the light of earlier agreement between the parties, complaint filed by O.P. No.2 was rejected by N.C.D.E.X in arbitration case no. 49 of 2006 vide order dated 24.5.2007, O.P. No. 2 again filed a complaint on 23.8.2006 in M.C. Act (Multi Commodity Exchange) claim for Rs. 69 lacs and 50 thousand, the same was decided on 8.3.2007 by rejecting the claim of O.P. No. 2. O.P. No. 2 again filed an arbitration application on 23.8.2006 before the National Stock Exchange, claiming the amount of Rs. 44 lacs and 15 lacs from the applicant Rajendra Kumar Gupta, the same was rejected on 4.1.2007, O.P. No. 2 again moved an application against the applicant Rajendra Kumar Gupta before the Bombey Stock Exchange asking for the redressal , the same was denied on 3.10.2006.

4.the transaction of money had taken place between the parties either at Mumbai or at New Delhi. The FIR of this case has been lodged deliberately in district J.P. Nagar for the purpose of harassment of the applicants only for creating pressure upon the applicants. The learned Chief Judicial Magistrate, J.P. Nagar has also ignored the fact that he was having no territorial jurisdiction to take the cognizance.

5.the allegation made in the FIR are in respect of the business transactions in which proper remedies were availed by O.P. No. 2, he could not obtain a suitable order for the remedies availed by him, he lodged the FIR of the present case in Wagmansg Service Finance Private Limited Dr. R.K. Gupta and his relatives, he was not having any share also. It is a case of civil nature but to fulfil oblique motive, it has been converted into a criminal proceedings, in such circumstances, the summoning order dated 8.5.2008 is illegal, the same may be set aside and criminal proceedings pending against the applicants in case no. 1240 of 2007 may be quashed.

In reply to the above contention it is submitted by the learned A.G.A. and the learned counsel for the O.P. No. 2 that it is a case in which by way of playing fraud money of O.P. No. 2 has been misappropriated by the applicants and other accused persons, some of the allegations are with regard to the cheating and forgery committed by the applicants in business transactions and some of the allegations are with regard to extending threat etc. in the office of O.P. No.2. The learned Chief Judicial Magistrate, J.P. Nagar had passed the impugned order dated 8.5.2008 by which protest petition filed by O.P. No.2 has been accepted and the final report submitted by the I.O. has been rejected and the applicants and other accused persons have been summoned to face the trial of the proceedings punishable under sections 406,420,467.468,471,452,504 and 506 I.P.C. The learned Chief Judicial Magistrate, J.P. Nagar had discussed all the facts and circumstance as argued before him but he had taken cognizance only on the basis of the evidence available in the case diary, he has not considered any extraneous material for taking cognizance and summoning the applicants. The evidence collected by the I.O. is prima facie disclosing the commission of a cognizable offence, the cognizance has been taken only on the basis of the case diary, therefore, it has been rightly observed by the learned Chief Judicial Magistrate, J.P. Nagar that the proceeding of this case shall be commenced as a State case. The learned Chief Judicial Magistrate has not committed any procedural mistake in taking cognizance and summoning the applicants on merits also, the allegation made against the applicants are prima facie disclosing the commission of offence. The impugned order dated 8.5.2008 is not suffering from any illegality. The applicants and other co-accused persons have been rightly summoned to face the trial for the offence punishable under sections 406,420,467,468,471,452,504 and 506 I.P.C. The criminal proceedings pending against the applicants and other accused persons are not suffering from any illegality, therefore, the prayer for quashing the proceedings pending against the applicants in criminal case no. 1240 of 2007 may be refused.

Considering the facts and circumstance of the case, submission made by the learned counsel for the applicants, learned A.G.A. for the State of U.P. and the learned counsel for O.P. No. 2 and perusing the record it reveals that there was a business transaction in between the applicants and O.P. No. 2. With regard to business transaction, arbitration proceedings have already been commenced between the parties, FIR has been lodged by O.P. No. 2 in which after completing the investigation final report dated 8.10.2007 was submitted, the same was protested by O.P. No.2 by way of filing the protest petition supported by his affidavit and two other documents. The learned Chief Judicial Magistrate, J.P. Nagar has rejected the final report by allowing the protest petition and summoned the applicants and others co-accused persons to face the trial for the offence punishable under sections 406,420,467,468,471,452,504 and 506 I.P.C. by passing the impugned order dated 8.5.2008. The impugned order dated 8.5.2008 is a well reasoned order in which all the facts and circumstance have been properly mentioned but the learned Chief Judicial Magistrate, J.P. Nagar has taken cognizance by rejecting the final report allowing the protest petition only on the basis of material collected by the I.O. during investigation which was made the part of the case diary. The learned Chief Judicial Magistrate, J.P. Nagar has not considered any extraneous material for the purpose of taking cognizance though the cognizance has been taken on the basis of the case diary, the learned Chief Judicial Magistrate, has rightly observed that the proceedings of the case shall be commenced as of the State case. The learned Chief Judicial Magistrate, J.P. Nagar has not adopted a mixed procedure for taking cognizance. The allegation made in the FIR and the material collected by the I.O. is prima facie disclosing the commission of the offence. According to the allegation made part of the offence was committed in the territorial jurisdiction of the district J.P. Nagar for summoning the applicants and other accused persons. The impugned order dated 8.5.2008 is not suffering from any illegality or irregularity. In pursuance of the order dated 8.5.2008, criminal proceedings pending against the applicants in case crime no. 1240 of 2007 are also not suffering from any illegality, therefore, the prayer for quashing the dated 8.5.2008 passed by the learned Chief Judicial Magistrate, J.P. Nagar summoning the applicants in criminal case no. 1240 of 2007 and the proceedings of case no. 1240 of 2007 under sections 406,420,467,468,471,452,504,506, pending in the court of Chief Judicial Magistrate, is refused.

The interim order dated 29.5.2008 in criminal application no. 13742 of 2008 is hereby vacated.

Accordingly both the applications are dismissed.

Dt. 28.3.2014

NA