Allahabad High Court
Dharmendra Kumar vs State Of U.P. Thru. Addl. Chief ... on 20 January, 2023
Bench: Devendra Kumar Upadhyaya, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 9
Case :- CRIMINAL MISC. WRIT PETITION No. - 515 of 2023
Petitioner :- Dharmendra Kumar
Respondent :- State Of U.P. Thru. Addl. Chief Secy. (Home) , Civil Secrt. Lko. U.P.
Counsel for Petitioner :- Piyush Asthana
Counsel for Respondent :- G.A.
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Narendra Kumar Johari,J.
Heard learned counsel for the petitioner and learned State Counsel.
By invoking our jurisdiction under Article 226 of the Constitution of India a prayer in this petition has been made to quash F.I.R. No.0782 of 2021, lodged on 04.10.2021, under sections 409 and 420 of I.P.C, Police Station-Gomti Nagar, District-Lucknow.
As per the allegation in the impugned F.I.R., the petitioner has been working with one Rashid Nashim, who is the Chairman-cum-Managing Director of a Company known as 'Shine City Company' and further that the complainant had transferred a sum of Rs.30,000/-(Thirty Thousand) in the account of the petitioner and had transferred Rs.4,65,000/- (Four Lakhs Sixty Five Thousand) in another account as told by him with the understanding that the petitioner shall pay interest for three consecutive months and after three months he shall return the principal amount. As per the recitals made in the impugned F.I.R. the petitioner paid the interest for two months, however, thereafter he stopped making payment of interest and when the complainant asked the petitioner to return back his principal amount, he denied the same.
Submission of the learned counsel for the petitioner is that the offence under section 409 of I.P.C. is not made out for the reason that the petitioner is neither a public servant nor a banker nor a merchant or agent. His submission is that at the most offence under section 406 is made out which entails the punishment upto 7 years. It has also been stated by the learned counsel for the petitioner that from the recitals made in the impugned F.I.R. it is not borne out that the petitioner was an agent of the Chairman-cum-Managing Director of the company concerned, namely, Rashid Nashim. In support of his submission, learned counsel for the petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of Satishchandra Ratanlal Shah vs. State of Gujarat and another, reported in [AIR 2019 SC 1538].
So far as the aforesaid submission of the learned counsel for the petitioner that the petitioner is not an agent of the Chairman-cum-Managing Director of the company is concerned, we may only notice that the impugned F.I.R. clearly recites that the petitioner has been working with the said Chairman-cum-Managing Director and accordingly, the possibility of the petitioner being acting as an agent of the Chairman-cum-Managing Director of the company cannot be denied, however, it is a matter of investigation which is the preserve of the investigating agency.
Even if, as per the submission of the learned counsel for the petitioner, an offence under section 406 of I.P.C. is made out, the same is cognizable and accordingly as per the settled law relating to quashing of F.I.R. if on a bare perusal of the recitals made in the F.I.R. it transpires on the face of it that some cognizable offence is made out unless there is an element of any mala fide, FIR cannot be quashed.
As far as the reliance placed by the learned counsel for the petitioner on the judgment of Hon'ble Supreme Court in the case of Satishchandra Ratanlal Shah (supra) is concerned, learned counsel for the petitioner has himself stated that the offence under section 409 is not made out from the perusal of the impugned F.I.R. however, at the most offence under section 406 of I.P.C. is made out.
All the aforesaid aspects are still to be investigated by the investigating officer and accordingly we are not inclined to interfere in this writ petition which is hereby dismissed.
However, notwithstanding dismissal of this writ petition, it will be open to the petitioner to take recourse to the remedy, which may be available to him under section 438 of Cr.P.C. or any other law.
Order Date :- 20.1.2023
Sanjay
