Rajesh Kumar Shukla vs The State Of U.P And Anr.
2016 Latest Caselaw 6664 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R.
 
Reserved
 
Court No. 14
 
Case :- U/S 482/378/407 No. - 1840 of 2015
 
Applicant :- Rajesh Kumar Shukla
 
Opposite Party :- The State Of U.P And Anr.
 
Counsel for Applicant :- K.P Pandey,Sharad Pathak
 
Counsel for Opposite Party :- Govt. Advocate,Shantanu Mishra
 

 
And 
 
Case :- U/S 482/378/407 No. - 5195 of 2014
 

 
Applicant :- Chandra Prakash Shukla
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Applicant :- Kalika Prasad Pandey,Sharad Pathak
 
Counsel for Opposite Party :- Govt. Advocate,Smt. Manorama Bajpai
 

 
Hon'ble Dr. Vijay Laxmi,J.

Heard Sri Sharad Pathak, learned counsel for the petitioners and Sri Shantanu Mishra, learned counsel for the opposite party no. 2 in Criminal Miscellaneous Case No. 1840 of 2015 and Sri Jalaj Kumar Gupta, learned counsel for the opposite party no. 2 in connected Criminal Misc. Case No. 5195 of 2014.

2. The Crl. Misc. Case No. 1840 of 2015, under section 482 Cr.P.C. has been filed by the applicant, Rajesh Kumar Shukla and the connected Crl. Misc. Case No. 5195 of 2014 by Chandra Prakash Shukla, with a prayer to quash the impugned Chargesheet No. 211 of 2014 dated 25-07-2014 filed in Case Crime No. 493 of 2014, under sections 419,420,467,468,471 & 406 Indian Penal Code, Police Station-Kotwali Nagar, District Pratapgarh and also to set aside the impugned order dated 11-09-2014 of taking cognizance and issuance of notice as well as impugned order dated 20-04-2015 by which the non-bailable warrants are issued against the petitioners in Case No. 1518 of 2014, State Versus Rajesh Kumar, pending before the Chief Judicial Magistrate, Pratapgarh.

3. Learned counsel for the petitioners submit that sale agreement dated 23-03-2012 was executed by the father of the petitioner in favour of opposite no. 2 for the sale of land in question. The sale deed was to be executed within six months by 29-09-2012. The opposite party no. 2 instead of filing a suit of specific performance of the sale agreement in question, lodged F.I.R. against the petitioners with false and frivolous allegations who were neither the parties to said agreement nor witnesses therein. The father of the petitioner died on 25-02-2013. Chandra Prakash Shukla is younger brother of Rajesh Kumar Shukla and the opposite party no. 2 is son-in-law of Anant Prasad Shukla who is also brother of petitioners.

4. It is submitted in the F.I.R. that Rs. 1,00,000/- was given in cash at the time of said sale agreement out of the total amount of Rs. 5,37,000/- and the remaining amount was paid on 11th November, 2013 in the presence of the petitioners for sale in the month of March. Unfortunately, Ganga Prasad Shukla died in the month of February, 2013. After his death, the petitioners are not selling the land to opposite party no. 2 despite his repeated requests. It is argued on behalf of petitioners that the petitioners had no concern with the sale agreement and the chargesheet in question is liable to be quashed.

5. It is argued by learned counsel for the petitioners that merely on the basis of a breach of contract of agreement for sale of the property, no dishonest intention could be inferred and the proceedings were liable to be quashed. It is further argued that to hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise which is lacking in this case. The reliance has been placed by learned counsel for the petitioners on the following Rulings :-

1. (1998)5 SCC 694, Nageshwar Prasad Singh Alias Sinha Versus Narayan Singh and Another

2. (2001) 3 SCC 513 ALPIC Finance Ltd. Versus P. Sadasivan And Another

3. (1998) 7 SCC 698, Ashok Chaturvedi and Others Versus Shitul H. Chanchani And Another

4. (2009) 14 SCC 696 Dalip Kaur And Others Versus Jagnar Singh And Another

5. (2007) 10 SCC 424, Thelapalli Raghavaiah Versus Station House Officer And Others.

6. AIR 2008 SC 251 : (2007) 12 SCC 1, Inder Mohan Goswami And Another Versus State of Uttranchal and Another

6. Per contra, learned counsel for the opposite party no. 2 argued that the power of attorney was executed by father of the petitioner Sri Ganga Prasad in favour of Anant Prasad Shukla which was witnessed by Rajesh Kumar, where the petitioners were having full knowledge of the agreement for sale. Despite this fact, they maliciously sold the land, the subject matter of agreement for sale dishonestly by the sale-deed dated 27-08-2014 in favour of a third party, Smt. Prakashwati. When the opposite party no. 2 came to know about the fact that the petitioners have agreed to sell the land in question in favour of a third party, then he moved application for lodging of the F.I.R. against the petitioners.

7. It is argued by learned counsel on behalf of the opposite party no. 2 that civil and criminal proceedings can proceed simultaneously. Reliance has been placed by the learned counsel for the opposite party no. 2 on the following Rulings :-

1. (2009) 5 Supreme Court Cases 528, Syed Askari Hadi Ali Augustine Imam And Another Versus State (Delhi Administration) And Another

2. (2014) 3 Supreme Court Cases 389, Vijayander Kumar And Others Versus State of Rajasthan And Another.

8. From perusal of record it is evident that petitioners earlier approached this court through the writ petition no. 6354(M/B) of 2014, Rajesh Kumar Shukla And Anr. Versus The State of U.P. Thru. Secy. Home, Lucknow And Ors, for quashing the impugned F.I.R. in Case Crime No. 493 of 2014, where this court vide order dated 23-07-2014, refused to interfere in the F.I.R. The said order dated 23-07-2014 is quoted below :-

?Heard the learned counsel for the petitioners and the learned A.G.A.

This petition has been filed by the petitioners, namely, Rajesh Kumar Shukla and Chandra Prakash Shukla with a prayer to quash the impugned F.I.R. in Case Crime No.493 of 2014, under Sections 419, 420, 467, 468, 471, 406 IPC, Police Station Kotwali Nagar, District Pratapgarh.

From the perusal of the impugned FIR, it appears that on the basis of the allegations made therein a prima facie cognizable offence is made out. There is no ground for interference in the F.I.R. Therefore, the prayer for quashing the impugned F.I.R. is refused.

However, considering the nature of the allegations made in the F.I.R., the provisions of Section 157 Cr.P.C. and the view taken by the Apex Court in the case of Joginder Kumar Versus State of U.P.; 1994 Cr.L.J.,1981, it is directed that the petitioners shall not be arrested in above mentioned case, till the credible evidence is not collected by the I.O. during investigation.

With the above direction this petition is finally disposed of. ?

9. The power under Section 482 Cr.P.C. is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, Apex Court and various High Courts, including ours one, have reminded when exercise of power under Section 482 Cr.P.C. would be justified, which cannot be placed in straight jacket formula, but one thing is very clear that it should not preampt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below. If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C. but it should be exercised sparingly. This will not include as to whether prosecution is likely to establish its case or not, whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained, or the other circumstances, which would not justify exercise of jurisdiction under Section 482 Cr.P.C. It would be relevant here to refer a few recent authorities dealing all these matters in detail, namely, State of Haryana and others Vs. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335, Popular Muthiah Vs. State represented by Inspector of Police (2006) 7 SCC 296, Hamida vs. Rashid @ Rasheed and Ors. (2008) 1 SCC 474, Dr. Monica Kumar and Anr. vs. State of U.P. and Ors. (2008) 8 SCC 781, M.N. Ojha and Ors. Vs. Alok Kumar Srivastav and Anr. (2009) 9 SCC 682, State of A.P. vs. Gourishetty Mahesh and Ors. JT 2010 (6) SC 588 and Iridium India Telecom Ltd. Vs. Motorola Incorporated and Ors. 2011 (1) SCC 74.

10. In Lee Kun Hee and others Vs. State of U.P. and others JT 2012 (2) SC 237, it was reiterated that Court in exercise of its jurisdiction under Section 482 Cr.P.C. cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record. Interference would be justified only when a clear case of such interference is made out. Frequent and uncalled interference even at the preliminary stage by High Court may result in causing obstruction in the progress of inquiry in a criminal case which may not be in public interest. It, however, may not be doubted, if on the face of it, either from the first information report or complaint, it is evident that allegation are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding, in such cases refusal to exercise jurisdiction may equally result in injustice, more particularly, in cases, where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint.

However, in this matter, after investigation, Police has found a prima facie case against accused and submitted charge-sheet in the Court below for commission of a cognizable offence for which accused should have been tried in a Court of Law. At this stage there is no occasion to look into the question, whether the charge ultimately can be substantiated or not since that would be a subject matter of trial. No substantial ground has been made out which may justify interference by this Court under Section 482 Cr.P.C.

11. The prayer made for is hereby refused.

12. However, it is provided that if the petitioners surrender before the court below within a period of three weeks from today and apply for bail, their bail application shall be considered and decided by the court below expeditiously, in accordance with law and also keeping in view the law laid down by Full Bench of this court in the case of Amrawati & Another Versus State of U.P. reported in 2004(57) ALR 290, as affirmed by Hon'ble Apex Court in the case of Lal Kamlendera Pratap Singh Vs. State of U.P. reported in 2009(3) ADJ 322 (SC).

13. For the aforesaid period of three weeks or till the date of surrender of the petitioners, whichever is earlier, no coercive measures shall be taken against them.

14. After expiry of the aforesaid period, if the petitioners have not surrendered, then the authorities concerned shall have full liberty to take action in accordance with law.

15. Both the petitions are disposed of accordingly. 

Order Date :-26.10.2016

AKS