Uday Pratap Yadav vs State Of U.P. And Another
2022 Latest Caselaw 439 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 91
 
Case :- APPLICATION U/S 482 No. - 24547 of 2021
 
Applicant :- Uday Pratap Yadav
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ashok Kumar Ojha
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Syed Aftab Husain Rizvi,J. 

1. Supplementary affidavit filed today in the Court, is taken on record.

2. Heard Sri Ashok Kumar Ojha, learned counsel for the applicant, learned AGA for the State and perused the record.

3. This criminal misc. application under section 482 Cr.P.C. has been filed to quash the charge sheet No.88A of 2018 dated 21.10.2019, in Case Crime No.39 of 2018, Police Station Nandganj, District Ghazipur, under sections 419, 420, 506, 406, 467, 468, 471, and 120-B, IPC, as well as entire proceedings of Criminal Case No.5901 of 2019 (State Vs. Subhash Chandra and others), pending in the court of learned Chief Judicial Magistrate, Ghazipur.

4. The prosecution case is that an FIR was lodged by the complainant on 13.03.2018 against Subash Chand, Anand Kumar @ Suman and Sudhir, alleging therein that the accused persons named in the FIR came at the home of the complainant and told that they have taken a contract in the name of their firm 'Pratik and Anoop Enterprises' for supply of soil and concrete in relation to tender of Estern Railway. They also asked the complainant to participate in this work and told that he has to purchase a JCB Machine. They prepared an agreement in this regard. On 28.08.2017 they came at his home and taken Rs.8,000/- cash and Rs.10 lacks by cheque for finance of JCB Machine and has also taken 5 signed blank checques for other expenditures. On 21.09.2017 Sudhir withdrawn Rs.15 lacs by cheque and on 22.09.2017 he again withdrawn Rs.15 lacs by cheque from the account of the complainant. When complainant got information of those withdrawal from receipt of ATM on 25.09.2017, then he approached them. After that on 27.09.2017 panchayat was held and a compromise was entered, which was written on a stamp paper and it was promised by Sudhir that he will return Rs.20 lacs within 15 days and rest amount will also be returned, but they not refunded the same and now they are threatening to kill the complainant. During the course of investigation the name of the applicant Uday Pratap Yadav also came in the light and charge sheet has been submitted.

5. Submission of learned counsel for the applicant is that applicant has no concern with the said incident. He is not named in the FIR. The role of receiving money has been assigned to Sudhir and he has withdrawn the money through cheques. The police has falsely implicated the applicant after two years, by showing false and manipulated story, given in the subsequent statements of the complainant, because of business terms with co-accused Prince Singh. The police asked the applicant about co-accused Prince Singh, and said that if he will not tell the police about Prince Singh, he will be falsely implicated in a false case. As applicant has no information about Prince Singh, hence he could not give any information. The applicant has only business relation with co-accused Prince Singh, who is also not named in the FIR. Transaction alleged to be done with Prince Singh was given for the purpose of business and he has no concern with the complainant. The investigating officer has filed charge sheet against the applicant in collusion with the complainant on his political influence, after recording the subsequent statements of the complainant without any credible evidence against the applicant. The learned Magistrate has taken cognizance in routine and mechanical manner. Investigating officer has not conducted fair and proper investigation of the case. No offence is made out against the applicant and he has been falsely implicated. It is also contended that complainant has also filed a civil suit for recovery of the amount. Matter is purely of civil nature, which has been given a criminal colour, hence proceeding is liable to be quashed. Learned counsel for the applicant placed reliance on the judgment of Hon'ble Apex Court in the case of 'Mitesh Kumar J. Sha Vs. The State of Karnataka and others', in Criminal Appeal No.1285 of 2021, decided on 26.10.2021.

6. Learned AGA contended that although accused-applicant is not named in the FIR, his name has cropped up during the investigation in the subsequent statement of complainant as well as co-accused persons. The bank account details are part of the case diary. Applicant-accused was asked by the investigating officer to show his I.D. and bank details, but he did not co-operat. It is also contended that on the basis of credible evidence charge sheet has been submitted. A case of cheating and fraud is made out. The civil suit filed is only for recovery of the amount and criminal act is different from it.

7. The allegations of FIR discloses a cognizable offence. The name of the accused-applicant has cropped up during the investigation and there are specific allegations against him in the statement of the witnesses. There is also documentary evidence against the accused-applicant given by the prosecution. On the basis of credible evidence charge sheet has been submitted and the learned Magistrate being satisfied with the material available on record has taken cognizance on it. It is settled principle of law that at this stage only prima-facie case is to be seen, in view of the law laid down by the Supreme Court in the case of Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. It is also settled principle of law that if the dispute is purely of civil nature, then criminal proceeding shall be an abuse of the process of the court, but if, the impugned transaction attracts civil as well as criminal liabilities, both proceeding may run concurrently. In the present case the transactions attracts both civil and criminal liabilities, hence applicant cannot be exonerated simply because a civil suit is pending. Due to this reason the ruling cited by learned counsel for the applicant, as aforesaid, is not applicable in the present matter. It will not proper to discuss the merits of the case at this stage. All the other grounds as assailed by the learned counsel for the applicant are disputed matter of facts, which cannot be adjudicated in a proceeding under section 482 Cr.P.C., as it will amount a mini trial, which is not permitted. There is nothing on record to show that charge sheet is an abuse of the process of law and impugned summoning order is an abuse of the process of the court. There is no illegality in the impugned summoning order.

8. Accordingly, the criminal misc. application under section 482 Cr.P.C. is devoid of merits and is hereby dismissed.

Order Date :- 4.4.2022

VKG