Ajay Kumar vs State Of U.P. And Another
2023 Latest Caselaw 9382 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 68
 

 
Case :- APPLICATION U/S 482 No. - 4742 of 2023
 

 
Applicant :- Ajay Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Vijay Shanker Chaurasia,Guru Prasad
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mr. Vijay Shanker Chaurasia,, learned counsel for the applicant, Mr. K.P. Pathak, learned A.G.A. for the State as well as perused the entire material available on record.

The present 482 Cr.P.C. application has been filed to quash the charge-sheet dated 26.03.2022 and cognizance/summoning order dated 30.09.2022 as well as the entire proceedings of Criminal Case No.16955 of 2022 (State Vs. Ajay Kumar and Others), arising out of Case Crime No.614 of 2021, under Sections 419, 420, 406, 504, 506 I.P.C., Police Station-Mohammadabad, District-Mau, pending in the Court of Judicial Magistrate, Mau.

Brief facts of the case are that an FIR has been lodged on 11.11.2021 at about 14:43 hrs by Mohd. Jabbar against two named accused persons including the applicant through an application U/s 156(3) Cr.P.C., which was registered as Case Crime No.614 of 2021, under Sections 419, 420, 406, 504, 506 IPC. As per the allegations in the FIR, co-accused Jamalluddin promised to send the informant abroad and demanded Rs.1,00,000/- for issuing Visa and other formalities. It is further alleged that the co-accused Jamaluddin stated that his friend Ajay Kumar (applicant herein), who is running a professional tour and travel company for sending persons abroad and arranging jobs for them, would be helpful in the purpose of sending the informant abroad. It is further alleged that the informant is taken by co-accused Jamaluddin to Ajay Kumar (applicant) where after arranging the money, i.e. 90,000/- by taking loan from his relatives, the money was handed over to Ajay Kumar by Jamaluddin to whom the informant had given the said money. An amount of Rs.5,000/- was also taken for medical by Ajay Kumar. Thereafter, the informant went abroad on 28.10.2019 and did job for three months getting Rs.80,200/- (total 1000 Riyals) though he was promised 1500 Riyals. After three months, his job did not continue, so, being at the verge of starvation, he tried to approach the applicant as well as other co-accused Jamaluddin, stating that they had promised him for about two or two and a half years of job, however, he is at the verge of starvation, therefore, needful may be done by them. When the applicant as well as the co-accused did nothing, the informant managed to come back to India on 05.09.2020 by arranging Rs.18,000/- with the help of his family members. The informant went to the applicant as well as co-accused asking them to return his money, however, the aforesaid persons were making some or other excuse. On 06.10.2020, when the informant again went to the place of applicant requesting to return back his money as he had been cheated by them, they after using abusive language threatened to kill him and asked him to go back and warned the informant not to come in future. Therefore, the present FIR has been lodged. Subsequently, after investigation, the charge sheet has been submitted on 26.03.2022 against the applicant under Section 419, 420, 406, 504, 506 IPC. Pursuant to which, the applicant has been summoned by the court concerned vide order dated 30.09.2022. Thus, the present application has been filed before this Court.

Learned counsel for the applicants submits that the applicant is innocent and has been falsely implicated in the present case. He further submits that since the informant was sent abroad as promised by the applicant and he has returned from there, therefore, no offence under the relevant section is made out against the applicant. He further submits that the offence is civil in nature and for recovery of money, proper remedy is to file suit. In support of his contention, he has relied upon the judgment of Apex Court in the case of International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and Ors. vs. Nimra Cerglass Technics (P) Ltd. and Another reported in (2016) 1 SCC 348. He further submits that no offence against the applicants is disclosed and the present prosecution has been instituted with a mala fide intention for the purpose of causing harassment. He pointed out certain documents and statements in support of his contention. He, therefore, submits that the charge-sheet, summoning order as well as entire proceedings be quashed by this Court as the same is an abuse process of Court.

Per Contra, learned A.G.A. for the State as well as learned counsel for the opposite party no.2 has opposed the submissions made by the learned counsel for the applicants by submitting that perusal of the FIR as well as statements of the witnesses goes to show that prima facie, offences are made out against the applicant. The case law relied upon by the learned counsel for the applicant is not applicable in the facts of the present case. He further submits that all the contentions raised by the applicants' counsel relate to disputed questions of fact. On the basis of material on record after conducting of statutory investigation under Chapter XII Cr.P.C. by the investigating officer, a strong prima facie case is made out against the applicant for the commission of the alleged incident. In support of his case, learned AGA has placed reliance upon the judgments of the Apex Court in the case of Dilbag Rai Vs. State of Haryana & Others reported in AIR 2019 (SC) 693 and Central Bureau of Investigation Vs. Arvind Khanna reported in MANU/SC/1432/2019.

I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application.

This Court finds that the submissions made by the applicant's learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. The issue whether it is appropriate for this Court being the Highest Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the charge-sheet and the proceedings at the stage when the Magistrate has merely issued process against the applicants and trial is to yet to come only on the submission made by the learned counsel for the applicants that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law has elaborately been discussed by the Apex Court in the following judgments:-

(i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866,

(ii) State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.;1992 Supp.(1) SCC 335,

(iii) State of Bihar & Anr. Versus P.P. Sharma & Anr.; 1992 Supp (1) SCC 222,

(iv) Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005 (1) SCC 122,

(v) M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682,

(vi) Mohd. Allauddin Khan Vs. The State of Bihar & Others; 2019 0 Supreme (SC) 454,

(vii) Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors.; 2020 0 Supreme (SC) 45,

(viii) Rajeev Kaurav Vs. Balasahab & Others; 2020 0 Supreme (SC) 143 and lastly

(ix) M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra; 2021 SCC Online SC 315.

In view of the aforesaid, this Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.

The prayer for quashing the impugned charge-sheet dated 26.03.2022 and cognizance/summoning order dated 30.09.2022 as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage.

The present application has no merit and is, accordingly, rejected.

Order Date :- 31.3.2023

Jitendra/-