Gaurav Khanna And Another vs State Of U.P. And Another
2023 Latest Caselaw 1551 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 69
 

 
Case :- APPLICATION U/S 482 No. - 1551 of 2023
 

 
Applicant :- Gaurav Khanna And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rohan Gupta,Kriti Gupta
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

List revised.

Heard Sri Rohan Gupta, learned counsel for the applicants, Sri Sharad Kumar Srivastava, learned counsel for the opposite party no. 2, who has filed his vakalatnama today in Court which is taken on record, Ms. Arti Agarwal, learned counsel for the State and perused the record.

This application under Section 482 Cr.P.C. has been filed by the applicants Gaurav Khanna and Saurav Khanna, with the prayer to quash the non bailable warrants dated 03.11.2021, extended from time to time, issued against the applicants by learned court of Chief Metropolitan Magistrate, Kanpur Nagar, in Case No. 37333 of 2019, arising out of Case Crime No. 36 of 2019, under Sections 406, 420, 467, 468, 471, 120B I.P.C. (State of U.P. vs. Gaurav Khanna and others) and with further prayer to stay the said non bailable warrants issued against the applicant, during pendency of the present application.

Learned counsel for the opposite party no. 2, at the very outset, raised objections that the applicants had previously filed an Application U/S 482 No. 1614 of 2020 (Gaurav Khanna and another vs. State of U.P. and another), which was disposed of vide order dated 14.1.2020 with the direction that if the applicants surrender within four weeks from today and move bail application, the same shall be considered and disposed of expeditiously in accordance with law and also keeping in view the directions of the Apex Court. Subsequently the applicants again preferred a second petition being Application U/S 482 Cr.P.C. 22096 of 2022 (Gaurav Khanna and another vs. State of U.P. and another), for quashing of the entire proceedings including charge sheet dated 18.8.2019 as well as the order dated 26.9.2019 passed by the Chief Metropolitan Magistrate, Kanpur Nagar, taking cognizance in the aforesaid matter which was got dismissed as withdrawn on 2.1.2023 and now the present application under Section 482 Cr.P.C. has been filed with the prayers as contained herein above which is totally an abuse of process of court and should not be entertained as the applicants have not complied with the orders dated 14.1.2020 and then resorted to filing a second application under Section 482 Cr.P.C. which was got dismissed as withdrawn. The said order dated 14.1.2020 is annexure no. 1 to the affidavit in support of present application under Section 482 Cr.P.C. and order dated 2.1.2023 is annexure no. 2 to the affidavit and the prayer contained in the said petition is at page nos. 32 and 33 of the paper book being part of annexure no. 2. It is argued that as such the present application under Section 482 Cr.P.C. should not be entertained and the same be dismissed.

Learned State counsel has also adopted the same arguments as of learned counsel for the opposite party no. 2.

On being countered, learned counsel for the applicants could not dispute the said facts but only stated that the second petition was got dismissed as withdrawn and since non bailable warrants have been issued vide order dated 3.11.2021 and further orders against the applicants, thus the present application under Section 482 Cr.P.C. has been filed. Further learned counsel for the applicants could not dispute the fact that the order dated 14.1.2020 has not been complied with by the applicants till date.

After having heard learned counsels for the parties and going through the records, it is evident that previously an Application U/S 482 No. 1614 of 2020 (Gaurav Khanna and another vs. State of U.P. and another) was filed before this Court which was disposed of vide order dated 14.1.2020. The order dated 14.1.2020 is extracted herein below:-

"Heard learned counsel for the applicants and learned A.G.A. appearing for the opposite party no.1-State.

Learned counsel for the applicants submits that the dispute is of civil nature and the F.I.R. has been lodged with the delay of three years. The matter pertains to financial irregularities in regard to a firm of which the opposite party no.2 is the member and without his signature, no loan can be sanctioned. He submits that the parties may enter into amcable settlement and therefore, he requested that by giving some protection, time may be allowed to the applicants to try to make amcable settlement in the matter.

On the other hand, Sri Rupak Chaubey, learned A.G.A., submits that there is an allegation of misappropriation of money and after investigation, on the basis of material and evidence charge-sheet has been submitted against the applicants and the Magistrate, applying his mind, has taken cognizance in the matter.

I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

On perusal of the F.I.R., it is prima facie evident that the allegation is in regard to financial irregularities. It is also transpired that the applicants have admitted that there is a firm of which he is member. Allegation of the F.I.R. was corroborated under the statement recorded under Section 161 Cr.P.C.. The applicants have been implicated in regard to financial irregularities and after investigation, the Investigating Officer has submitted charge-sheet against them. The Magistrate, on examination of evidence and material on record, has taken cognizance by issuing order of summons.

In view of the above, no interference is called for by this Court. The application lacks merit.

However, if the applicants surrender before the court below within four weeks from today and move bail application, the same shall be considered and disposed of expeditiously in accordance with law and also keeping in view the directions contained in the judgment rendered by the Apex Court in the case of Lal Kamlendra Pratap Singh v. State of U.P. reported in ADJ 322(SC) as well as in the case of Amrawati and another v. State of U.P. reported in 2004 (57) ALR 290.

For four weeks or till the date of surrender, whichever is earlier, no coercive steps shall be taken against the applicants.

With the aforesaid observation/direction, the application is disposed of."

Subsequently a second petition being Application U/S 482 Cr.P.C. 22096 of 2022 (Gaurav Khanna and another vs. State of U.P. and another) was filed challenging the entire proceedings, charge sheet and the order taking cognizance, which was got dismissed as withdrawn vide order dated 2.1.2023. The said order dated 2.1.2023 is also extracted herein below :-

"Heard Mr. Ram Krishna, Advocate, holding brief of Mr. Rohan Gupta, the learned counsel for applicants and the learned A.G.A. for State.

On the matter being taken up Mr. Ram Krishna, Advocate holding brief of Mr. Rohan Gupta submits that present application be dismissed as withdrawn.

Learned A.G.A. has no objection to the same.

Though the name of Mr. Sharad Kumar Srivastava is also published in the cause list as counsel for opposite party 2, neither he nor any one on his behalf appears to oppose this application.

Accordingly, present application is dismissed as withdrawn."

The present application under Section 482 Cr.P.C. has been filed with the prayers as quoted above. In so far as the question of compliance of the order dated 14.1.2020 is concerned, learned counsel for the applicants states that the applicants have not complied with the same and have not moved their bail applications before the trial court. The present case clearly shows that the applicants were in knowledge of the proceedings against them and are intentionally avoiding the trial. They are resorting to filing various petitions before this Court only with an intention to somehow avoid their appearance before the trial court. Because of their non appearance the trial has not proceeded.

Looking to the conduct of the applicants, order dated 14.1.2020 and the order dated 2.1.2023 coupled with the fact that the applicants are absconding since last three years even after the order dated 14.1.2020, this Court does not find it a fit case for interference under Section 482 Cr.P.C.

Thus, the present application stands dismissed.

(Samit Gopal,J.)

Order Date :- 16.1.2023

Naresh