Allahabad High Court
Avnish Kumar vs State Of U.P. And Another on 6 July, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 75
Case :- APPLICATION U/S 482 No. - 15621 of 2020
Applicant :- Avnish Kumar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Shiv Sharan Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Sri Shiv Sharan Tripathi, learned counsel for the applicant and Sri Janardan Prakash, learned AGA for the State.
2. When this matter was taken up on 16.03.2021, then it was recorded by a co-ordinate Bench of this Court that, learned AGA has filed counter affidavit which was taken on record and learned counsel for the applicant was granted two week's time to file rejoinder affidavit. It has come on record that no rejoinder has been filed till date.
3. This Application has been filed under Section 482 Cr.P.C. for quashing of Criminal Case No.608 of 2016 at Police Station-Banna Devi, District-Aligarh, in which chargesheet No.412 of 2016 has been filed on 16.11.2016 and cognizance was taken on 22.12.2016. Applicant is seeking quashing of the complete criminal case along with charge-sheet and the order of cognizance. It has come on record that Case Crime No.608 of 2016 was registered under Sections 420, 467, 468, 471, 384, 423, 424 IPC and, thereafter, investigation has been carried out and as per the counter affidavit filed under the signatures of one Ankit Kumar, Sub-Inspector of Police at Police Station-Banna Devi, District-Aligarh, he had carried out the investigation and found that commission of offence is made out. Thereafter, charge-sheet has been filed.
4. Vide order dated 16.03.2021, though applicant was granted opportunity to file rejoinder affidavit, but no rejoinder affidavit has been filed till date.
5. Sri Tripathi, counsel for the applicant submits that purely civil dispute has been sought to be converted into a criminal case and such practice has been not approved by the Apex Court and, therefore, this Application needs to be allowed and the proceedings aforementioned be quashed.
6. Learned AGA, Sri Janardan Prakash, in his turn, supports the case of the State and submits that prosecution is under way; charge-sheet has been filed; cognizance has been taken and, therefore, no interference is called for.
7. A perusal of the FIR reveals that it was lodged on a written 'Tehrir' of Smt. Omwati wife of Rajveer, in which she has categorically mentioned that her husband had entered into a transaction of purchase of 15 bigha of agricultural land with the accused persons for a sale consideration of Rs.18 lakhs and had paid an advance of Rs.7 lakhs and remaining amount was paid before the Sub-Registrar-1st, Tehsil-Koal, District-Aligarh, where sale deed was registered in front of the said sub-Registrar and other witnesses. But, when an application was filed for mutation in the revenue records, then that application was rejected on the ground that earlier father of accused-Ram Pal Singh had sold said land on 02.05.1980 in favour of one Mahesh Chandra Sharma and, therefore, prima facie elements of cheating and dishonest misappropriation are made out from the contents of the FIR.
8. In case of International Advanced Research Centre For Powder Matallurgy and New Materials (ARCI) and others Vs. Nimra Cerglass Technics Private Limited and another, (2016) 1 SCC 348, it is held that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is, as to whether uncontroverted allegations as made in the complaint establish the offence. The High Court being superior court of the State, should refrain from analysing the materials which are yet to be adduced and seen in their true perspective. The inherent jurisdiction of the High Court under section 482 Cr.P.C., should not be exercised to stifle a legitimate prosecution. The power under Section 482 Cr.P.C. to be used sparingly only in rare cases. It is further held by exercising inherent jurisdiction under section 482 Cr.P.C., it is not for the High Court to appreciate the evidence and its truthfulness or sufficiency inasmuch as it is the function of the trial court. Therefore, court below has not committed any error or illegality in taking cognizance in the matter and therefore culpability or otherwise will be judged as per evidence recorded before the court of law. At this stage no ground is made out for quashing of either criminal case or the charge sheet or the cognizance order.
9. In the light of the judgment rendered by Supreme Court in case of V.R. Dalal and Others Vs. Yougendra Naranji Thakkar and Another; (2008) 15 SCC 625, wherein, it has been held that civil and criminal proceedings can go side by side, if a cognizable offence is prima facie made out, for the present, there appears to be no ground to interfere in the charge-sheet or the order of cognizance and, therefore, Application fails and is dismissed.
Order Date :- 6.7.2021
Ashutosh
