Allahabad High Court
Kamlesh Kumar Gupta vs State Of U.P. And Another on 9 August, 2023
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:161906
Court No. - 88
Case :- APPLICATION U/S 482 No. - 41666 of 2018
Applicant :- Kamlesh Kumar Gupta
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Pawan Kumar Shukla
Counsel for Opposite Party :- G.A.,Zafeer Ahmad
Hon'ble Sanjay Kumar Singh,J.
1-Heard learned counsel for the applicant, learned Additional Government Advocate for the State of U.P./opposite party no.1, learned counsel for opposite party no.2.
2-This application under Section 482 Cr.P.C. has been preferred by the applicant with a prayer to quash the impugned summoning order dated 22.09.2018 and further proceeding of Complaint Case No. 1804 of 2017/Computer Case No. 11421 of 2017 (Chetram Vs. Kamlesh Kumar and another) under Sections 323, 504 and 506 I.P.C., Police Station-Katghar, District-Moradabad, pending in the Court of learned Additional Chief Judicial Magistrate, Court No.6, Moradabad.
3-As per the prosecution case in brief, the opposite party no.2 filed an application under Section 156(3) Cr.P.C. against the applicant and co-accused Awadhesh Chauhan alleging inter alia that the applicant had purchased 310 square gaj land out of plot no 70B, 83 and 94M of the applicant after paying a sum of Rs. 4,80,000/- to him through his representative Awadhesh Chauhan on 15.08.2022, a receipt of the same was also written on notary stamp of Rs.50/- in presence of Tulasi and Ejajuddin but latter applicant did not execute sale deed in his favour, whereas, he after constructing house over the land in question, is residing there. On 10.07.2017 when he went to the house of the applicant for making complaint and to demand his money, he was beaten by the applicant and his associates. The application under Section 156(3) Cr.P.C. which was treated as complaint and after recording the statements under Section 200 and 202 Cr.P.C. the applicant and co-accused Awadhesh Chauhan have been summoned vide order dated 22.09.2018.
4-The main substratum of argument of learned counsel for the applicant is that a sum of Rs. 4,80,000/- was given by the opposite party no.2 to co-accused Awadhesh Chauhan, therefore, the applicant cannot be said to be liable. As per the prosecution case incident of assault took place on 10.07.2017 at 4 p.m., whereas, on that date and time, the applicant was not at the spot but he was in Nainital, State of Uttrakhand. Lastly placing reliance on the judgment of the Apex Court in the case of State of Haryana vs. Bhajan Lal, 1992 SCC (Cri) 426, it is submitted that the dispute of this case is civil in nature, therefore, criminal proceeding against the applicant is not sustainable.
5-On the other hand, learned A.G.A. for the State as well as learned counsel for the opposite party no.2 vehemently opposed the prayer by contending that the applicant is owner of the land and he had taken money through co-accused Awadhesh Chauhan, but till date, he has not executed the sale deed in his favour. It is also pointed out that even no case for dispossession of opposite party no.2 has been filed by the applicant but the applicant filed Original Suit No. 300 of 2017 for permanent injunction on 11.07.2017 which is still pending.
6-Having heard the submission of learned counsel for the parties and perusing the record, I find the grounds taken in the application reveal that many of them relate to disputed question of fact. At the stage of summoning the accused, the court below is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegations cannot be even determined at the stage of summoning the accused.
7-This Court is of the view that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put to an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sparingly, only in such an appropriate cases, where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in complaint and the materials relied in support of same, on taking their face value and accepting in their entirety do not disclose the commission of any offence against the accused. Power under Section 482 of the Code of Criminal Procedure cannot be exercised where the allegations are required to be proved in court of law. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage, which can be more appropriately gone into by the trial court at the appropriate stage.
8-This Court does not find that this case fall in a categories as recognized by the Apex Court for quashing the criminal proceeding of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicant in this case, the cognizable offence is made out. At this stage it would not be appropriate to adjudge whether the case shall ultimately end in conviction or not. Only prima facie satisfaction of the Court about the existence of sufficient ground to proceed in the matter is required. The impugned criminal proceeding under the facts of this case cannot be said to be abuse of the process of the Court. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court.
9-The relief as sought by the applicant through the instant application is hereby refused.
10-This application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed.
Order Date :- 9.8.2023
Kashifa
