Allahabad High Court
Sandeep Kumar And Another vs State Of U.P. Thru. Prin. Secy. ... on 17 May, 2017
Bench: Ajai Lamba, Vijay Laxmi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?AFR
Court No. - 9
Case :- MISC. BENCH No. - 7488 of 2017
Petitioner :- Sandeep Kumar And Another
Respondent :- State Of U.P. Thru. Prin. Secy. Home And Others
Counsel for Petitioner :- Sudhir Kumar Pandey
Counsel for Respondent :- Govt. Advocate
Hon'ble Ajai Lamba,J.
Hon'ble Dr. Vijay Laxmi,J.
(Oral)
1. The petition seeks issuance of a writ in the nature of Certiorari quashing First Information Report dated 27-03-2017 bearing Case Crime No. 136 of 2017, under sections 419/420/467/468/471 Indian Penal Code, Police Station-Kotwali Mohanlal Ganj, District-Lucknow.
2. Sri Durgendra Kumar Tiwari, Advocate, has put in appearance for Respondent no. 3 and filed Power of Attorney. His Power of Attorney is taken on record.
3. Order dated 11th April, 2017, notices gist of the issue raised by the petitioners and reads as under:-
"1. This petition seeks issuance of a writ in the nature of certiorari quashing Case Crime No.136/2017 under Sections 419, 420, 467, 468, 471 I.P.C., P.S. Kotwali Mohanlalganj, district Lucknow.
2. Gist of the allegation is that the accused went to the jewellery shop to purchase jewellery. Jewellery worth Rs.43,400/- was purchased and a card was swiped. Subsequently, jeweller found that amount had not been credited to the account of jeweller.
3. Contention of learned counsel for the petitioners is that the petitioners had all intentions of making payment and therefore, the card was swiped. The money was debited from the account of the account holder and credited to the account of the jeweller. Subsequently, however, on account of some error, the entry was reversed.
4. Learned counsel for the petitioners contends that petitioners are ready and willing to pay the complainant the amount due.
5. Let the amount due be brought in court by way of a bank draft.
6. Issue notice to serve respondent No.3, returnable on 17.5.2017.
7. Till the next date of listing, petitioners shall not be taken in custody. Petitioners are directed to join investigation.
8. In the meantime, the investigating officer is directed to verify from the bank whether initially money was debited from the account of the accused and credited to the account of the jeweller, or not. It be further verified as to under what circumstances, the entry was reversed.
9. List on 17.5.2017."
4. In reference to Para 4 of the above extracted order, learned counsel for the petitioners has brought demand draft for a sum of Rs. 43,400/-(Forty Three Thousand Four Hundred Only), in the name of "Siddhi Manoj Jewellers' drawn on State Bank of India, NBRI, Lucknow, dated 16th May, 2017. The negotiable instrument has been handed over to learned counsel for Respondent no. 3.
5. Learned counsel for Respondent no. 3 states that his client, M/s Shri Siddhi Manoj Jewellers, are businessmen and are not interested in prosecuting any customer. The crime was registered only because money due towards Respondent no. 3 had not been paid by the petitioners.
6. Learned counsel for Respondent no. 3 states that he having received demand draft, as noted above, is not interested in prosecuting the petitioners. The matter be considered as settled.
7. Learned counsel for the Prosecuting Agency states that the crime appears to have been registered on account of money transaction. In case the complainant/the victim does not want to prosecute the accused, the Prosecuting Agency would have no objection to quashing of the proceedings.
8. The facts and circumstances that emerge from pleadings in the petition indicate that there was some error in operation of the debit card transaction on account of which entry was reversed, subsequent to credit of money in favour of the complainant.
9. Respondent no. 3, having accepted the money in court, as noted above, and having stated that he does not want to prosecute the petitioners, we are of the considered opinion that no purpose in law or facts would be served by allowing the impugned proceedings to continue. It appears to be a transaction for sale/purchase of gold jewellery. The money has been paid by the petitioners to Respondent no. 3. Respondent no. 3 has accepted the money. There is no issue left for adjudication between the parties.
10. We have also considered that in the entire transaction there is no element of "Cheating" as defined under section 415 I.P.C., therefore, offence under sections 419 & 420 I.P.C. is not made out.
Likewise, there is no allegation of "Forgery" as defined under section 463 I.P.C. In such circumstances, offence under sections 467,468 and 471 I.P.C. is not made out. In the absence of satisfaction of ingredients of the penal provisions invoked, and because the amount due towards the complainant has been paid by the accused, to the satisfaction of the complainant, we are of the considered opinion that continuance of impugned proceedings would result in abuse of process of the law and abuse of process of the court. It is to secure ends of justice that the impugned proceedings are liable to be quashed. The continuance of impugned proceedings shall be an exercise in futility, in so much as the complainant/victim of offence is not ready and willing to prosecute the accused.
11. In view of the above, the petition is allowed.
12. A writ in the nature of Certiorari is issued quashing the First Information Report dated 27-03-2017 bearing Case Crime No. 136 of 2017, under sections 419/420/467/468/471 Indian Penal Code, Police Station-Kotwali Mohanlal Ganj, District-Lucknow, and all consequent proceedings.
13. Let a copy of this order be conveyed to Station House Officer, Police Station-Kotwali Mohanlalganj, District-Lucknow and Chief Judicial Magistrate, Lucknow.
Order Date :- 17.5.2017
AKS
