Dhirendra Seth vs State Of U.P. And Another
2023 Latest Caselaw 1991 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 50
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 7791 of 2022
 

 
Petitioner :- Dhirendra Seth
 
Respondent :- State of U.P. and Another
 
Counsel for Petitioner :- Virendra Singh Patel
 
Counsel for Respondent :- G.A.,Syed Abid Ali Naqvi
 

 
Hon'ble Ram Manohar Narayan Mishra,J.

Heard Sri Virendra Singh Patel, learned counsel for the petitioner, Sri Syed Abid Ali Naqvi, learned counsel for the respondent no. 2 as well as learned A.G.A. for the state are present.

Instant writ petition under Article 227 of the Constitution has been preferred by the petitioner against impugned order dated 10.11.2021 passed in Criminal Case No. 3711 of 2021 (State of U.P. Vs. Dhirendra Seth) arising out of Case Crime No. 29 of 2021 as well as against the order of Revisional Court dated 29.7.2022 passed in Criminal Revision No.171 of 2021 (Dhirendra Seth Vs. State of U.P. and another), under Section 397 Cr.P.C., P.S. Kotwali, District- Jhansi, whereby the discharge application moved under Section 239 Cr.P.C. was dismissed and revision preferred by the accused-revisionist against impugned order of learned trial court, was dismissed by Revisional Court affirming the order of learned trial court.

The factual matrix of the case is that first informant Ashish Agarwal moved an application before Chief Judicial Magistrate, Jhansi under Section 156 (3) Cr.P.C. dated 09.12.2020 stating that informant works as a Government contractor in District- Jhansi. The informant used to supply electronic goods to Government departments. The informant communicated to his old acquaintance accused Dhirendra Seth, who operated a shop named as Shiv Electronics Traders for supply of electronic goods telephonically and thereafter Dhirendra Singh visited the office of first informant and they negotiated regarding supply of electronic goods and it was agreed that supply of electronic goods will be undertaken from 25.04.2019 to till onward for 10 months, for which, the informant will pay Rs. 1,01,80,000/- for electronic goods supplied by the accused and after payment of money, all the agreed goods will be supplied to first informant. However accused supplied only electronic goods worth Rs. 85,36,049/- and failed to supply the electronic goods worth Rs.16,43,951/-. Accused failed to provide remaining goods to informant in spite of much persuasion made by the informant and finally refused to supply anymore goods to him. On 2.12.2020, informant visited the office of the accused along with witnesses and made demand of his remaining goods to which accused stated that he has misappropriated his money Rs. 16,43,951/- and threatened him to his life, if he repeats said demands again. The F.I.R. was lodged under Sections 420, 504, 506 I.P.C. at P.S. Kotwali, on orders of learned Magistrate at P.S. concerned. The matter was investigated by police and after investigation, Investigating Officer concluded that charge under Section 420 IPC has not been made out against the accused, but there was ample evidence to prosecute him for charge under Sections 504 and 506 I.P.C. and charge-sheet was filed under these sections against the accused. An application, after taking of cognizance by learned Trial Court on charge-sheet against the accused, was moved under Section 239 Cr.P.C. before learned Trial Court on ground that on the basis of statement of witnesses Kiran Tiwari and Saumya Gupta, the dispute had arisen between informant and accused due to non-fulfillment of work and after completion of work, the dispute had ended. Thus, it is obvious that accused has not committed any offence. The investigating officer has also concluded in his report that informant is no longer willing to take any further action against the accused, therefore, accused may be discharged from charge under Section 504 and 506 I.P.C.

Learned Trial Court observed that from perusal of Parcha No. 3 of Case Diary, it appears that informant in his supplementary statement has stated that accused has abused him and threatened him with life and sufficient material is available in case diary for framing of charge under Sections 504 and 506 IPC against the accused. Charges are not framed against him so far and he will have sufficient opportunity to adduce defence evidence at appropriate stage. So far as the nature of evidence is concerned, no inference can be given thereon at this stage. There are no sufficient grounds to discharge the accused on grounds taken in discharge application

Learned Trial Court cited judgment of Hon'ble Apex Court in State of J & K Vs. Sudarshan Khakkar 1996(1) JIC 465(SC) and Rukmani Narvekar Vs. Vijaya Satardeker 2009 (1) JIC 924(SC), wherein it has been held that no weight is to be attached to the probable defence of the accused and at the time of framing of the charge. The Court has to confine its attention to documents referred to under Section 173 Cr.P.C. only. Learned Trial Court also cited judgment of Hon'ble Apex Court in Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary & Ors. 2008(3) JIC 619(SC), wherein it is held that if there is grave suspicion against the accused regarding commission of offence, this is sufficient for framing of charge.

Feeling aggrieved by the order of learned Trial Court, the accused preferred a criminal revision before Court of Sessions, which was decided by learned Additional Sessions Judge, Court No. 4, Jhansi, vide impugned order 29.07.2022. The criminal revision was dismissed with observation that the impugned order passed by learned Court below is in accordance with law and there appears no illegality, irregularity or error in the impugned order and no interence is required in the impugned order passed by the learned Court below. Thus, in revisional orders, Revisional Court affirmed the order passed by learned Trial Court, whereby discharge application of accused was dismissed.

Learned counsel for the petitioner submitted that instant petition has been filed against the impugned orders passed by learned Courts below, where prayer of the petitioner for discharging him in criminal case under Sections 504 and 506 I.P.C. lodged at the instance of first informant was involved. The F.I.R was lodged on directions of learned Magistrate issued on application of the informant under Section 156 (3) Cr.P.C.. In supplementary statement dated 26.01.2021, informant/aggrieved stated that he did not wish to proceed in the said case and as the dispute has been resolved between him and the accused, copy of the supplementary statement is filed as Annexure No.2 to present writ petition. The statement of petitioner was also recorded under Section 161 Cr.P.C., wherein he has accepted the settlement, copy of statement of accused-petitioner is filed as Annexure No.3 to the present writ petition. It is further stated that after recording the statements, Investigating Officer submitted charge-sheet against the petitioner under Section 504 and 506 I.P.C. only and charge under Section 420 IPC was not found to be substantiated. The learned Trial Court and Revisional Court by impugned orders have disposed of the question on discharge of accused on grounds taken in his discharge application in mechanical manner without going through the statement of the informant and witnesses and documentary evidence filed by the petitioner as well as respondent no.2 without considering the facts and circumstances of the case. This is admitted fact that real dispute has been resolved between informant and accused and both the contesting parties have agreed not to proceed in the present criminal case.

Learned counsel for the first informant raised no objection on prayer made in the petition and the statements of learned counsel for the petitioners and admitted the fact that settlement has reached between informant and accused. Informant is not inclined to proceed with the criminal case lodged at his instance.

From perusal of record and supplementary statement of victim/informant which is filed as Annexure No. 3 to the petition, it appears that he has stated therein that when he demanded payment of his money, due to accused, he abused him and when he objected to it he threatened him to life, to which his friends intervened and pacify them. He felt offended to conduct of accused and lodged a case against him but now he has performed his work and the witnesses had also cleared his payment, therefore, he does not want further any action in the case. Thus, from perusal of above statements of which reliance has been placed in present petition, it cannot be said that witness has not stated anything against the accused regarding charge under Section 504 and 506 IPC, in fact he has corroborated the F.I.R. version in this supplementary statement also so far as charge under sections 504 and 506 IPC is concerned, therefore, I do not find factual or legal error or any illegality in impugned order passed by learned trial court as well as revisional court while holding that charge under Section 504 and 506 IPC is liable to be framed against accused on the basis of material collected during investigation. Accused can only be discharged under Section 239 Cr.P.C. by the magistrate if, upon considering the police report and the documents send with it under Section 173 Cr.P.C. and making such examination, if any, of the accused as the magistrate thinks necessary after giving the prosecution and the accused opportunity of being heard, the magistrate considers the charge against the accused to be groundless.

In the present case on perusal of material on record, it cannot be held that charge against the accused is groundless so far as offence under Section 504 and 506 IPC is concerned, therefore, petition is devoid of any force and is liable to be dismissed and impugned order of learned trial court as well as revisional court are liable to be affirmed and are affirmed and the instant petition is dismissed.

However, as learned counsel for the informant/de facto complainant has also admitted this fact that a compromise has been reached between the informant and accused with regard to entire case and informant is not willing to proceed further and this fact also suggests from supplementary statement of the informant cited as above, it is open to the accused or parties to file appropriate application/petition before this Court for permission to compound the matter and for quashing of proceedings initiated before the court below on the basis of charge sheet filed in the case, as offence under Section 506 (2) IPC is not compoundable, but charge under Section 504 IPC IPC is compoundable.

Order Date :- 19.1.2023/Nitika