Manoj Kumar Gupta And Another vs State Of U.P. And Another
2023 Latest Caselaw 14014 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 20.4.2023
 
Delivered on 3.5.2023 
 
Court No. - 93
 

 
Case :- CRIMINAL APPEAL No. - 7125 of 2022
 
Appellant :- Manoj Kumar Gupta And Another
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Pragya Pandey,Mehul Khare
 
Counsel for Respondent :- G.A.,Rakesh Dubey
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

1. Heard Ms. Pragya Pandey, learned counsel for the appellants, Sri Rakesh Dubey, learned counsel for the respondent no. 2 and Sri O.P. Mishra, learned AGA for the State.

2. By means of this criminal appeal, the judgment and order dated 23.05.2022 passed by Special Judge (SC/ST Act) Kanpur Nagar on Misc. Application No. 693/2021 (Nitesh Kannaujia vs. Manoj Gupta and Others) has been challenged whereby the final report was rejected and the accused persons Manoj Kumar Gupta and Utsav Gupta (the appellants herein) have been summoned for the offence under Sections 147, 323, 504, 506 IPC and Section 3(1)(dha) of the SC/ST Act.

3. Relevant facts as emerging from the record are as below:-

Nitesh Kannaujia (the first informant) lodged an FIR against accused persons Manoj Kumar Gupta, Utsav Gupta and one unknown with the allegations that a case under Section 138 of the Negotiable Instruments Act has been pending against him; the first informant came to the court to attend its hearing on 29.01.2022 at about 12.00 pm; Manoj Kumar Gupta and his son Utsav Gupta along with 4 unknown persons came inside the court room and started calling names by using casteist derogatory words; they physically assaulted him by fist and kicks; he sustained a number of injuries on his face, right eye and ear; the presiding officer was not present in the court as lawyers were abstaining from work; taking advantage of absence of presiding officer, all the persons not only caused him injuries but also insulted him; they dragged him from the court room to a chamber and forced him to put thumb impressions and signatures on blank papers; he apprehends that those papers may be misused against him; The matter was investigated upon; the statements of witnesses was recorded; after investigation, the investigating officer filed a final report; notices were issued to the complainant; the complainant filed a protest petition; the learned Special Judge (SC/ST Act) rejected the final report and summoned the accused persons; now they are before this court in this appeal.

4. It is contended on behalf of the appellants that they have been falsely implicated in this case; things were manipulated by the respondent no. 2 in different manners; the court concerned without considering the major contradictions found in the prosecution story during the investigation and the omissions in the statement of the first informant himself has summoned them; the first informant did not take the name of appellant no. 2; the learned court ignored the fact of absence of eye-witness account also a number of other facts demolishing the prosecution case which is part of case diary and the fact of filing a final report for lack of sufficient evidence against them; the trial court passed illegal, arbitrary and unjust order against them.

5. To prove their points, the appellants have brought the attention of this court to their side of the story as below:-

There have been enough evidence to show that there is a land dispute between the two sides; the appellant no. 1 purchased 1.54 hectares of land in the name of respondent no. 2 as the seller is of SC/ST category; it was mutually agreed between the two sides that the profits will be shared between them when land is sold; Nitesh Kannaujia (respondent no. 2) without taking him into confidence, sold the land in a surreptitious manner; the respondent no. 2 invested an amount of more than Rs. 81 lakhs for purchase of that land and when the above dispute erupted between the two, he agreed to repay the money given by him and issued two cheques of Rs. 50 lakhs and Rs. 9 lakhs each but they bounced of, therefore the appellant no. 1-Manoj Kumar Gupta filed a criminal case under Section 138 of the Negotiable Instruments Act in 2017, which is still pending; the respondent no. 2 to save himself from criminal prosecution and to exert reverse pressure concocted a story showing himself as present in the court room on the date of hearing; in fact no such incident ever took place; Had there been any such incident, a number of persons present in the court rooms would have witnessed the incident but the complainant has no witness except he himself and a few of his friends; there is no medical evidence to corroborate the allegations; there was no chance of alleged witness being present in the court room; this fact became quite clear by the CDR location that though location of complainant was found near the court room but the location of witness Ankit Kannaujia and Om Prakash were found quite a distance from the place of alleged occurrence; besides an injunction suit is also pending against the complainant since 2014; this false case has been filed just to exert undue pressure on them so that the respondent no. 2 may have his way and the appellants give in.

6. All the contentions from the side of the appellants have been opposed by the respondents and it is said in nutshell that there has been enough of material for summoning the accused persons and there is no good ground to interfere in the order of the Special Judge (SC/ST Act).

7. I went through the impugned order. The learned trial court has referred to the facts mentioned in parcha no. 4 of the case diary, in which it is mentioned that the statement of 5 eye-witnesses have been recorded; then to parcha no. 7, in which the location of the complainant was found inside the court rooms (but not of Manoj Kumar Gupta-the appellant no. 1); then parcha no. 8 again an eye-witness account; then parcha no. 10 which contains a medico legal examination of the complainant and thereafter the facts mentioned in parcha nos. 12 and 13 which contained the statements of Nitin Verma and Santosh Tiwari. My attention has specifically drawn by the revisionist to the facts that none of the witnesses namely, Om Prakash, Ankit, Rahul etc, who allegedly saw the occurrence with their own eyes and also saved the complainant from assault, have been named in the FIR. The CDR location, on which the trial court relied upon, though fixed location of the complainant in the court room and not of any other person. This is not denied by the complainant that he and the accused revisionist were partners in certain business and that there has been a dispute over a property between the two sides. Admittedly the instant complainant had come to attend the hearing of criminal case under Section 138 of the Negotiable Instruments Act, which was filed by Manoj Kumar Gupta (appellant no. 1) against him and as per prosecution story the incident took place inside court room; On top of it the medical evidence does not give any support to the prosecution case; the medical evidence says that there was just a complaint of pain.

8. It will not be out of context to mention that the superior courts have observed in a number of cases that the trial courts ought to be quite alert when they decide to take cognizance or summon the accused persons, may be at the stage of Section 204 Cr.P.C. or otherwise. The superior courts have consistently kept on cautioning the courts to be quite circumspect, careful, alert and wakeful while putting the legal machinery in motion.

9. On the basis of whatever material which has come before the trial court, the trial court shall arrive at a satisfaction whether there is sufficient ground to proceed or not; The Magistrate/court cannot draw a conclusion of prima facie case by depending upon literal meaning of statements. A dias has to be held by a Magistrate/Judge not a robot.

10. The fact of the matter is that the court shall not proceed in a mechanical or a routine manner. It shall apply its mind, which is called a judicial mind and discretion as well.

11. In my view, the judicial process should not became a tool for oppression or avoidable harassment. I am of the opinion that there was not sufficient material to proceed to take cognizance and summon the accused persons, hence the impugned order is hereby, set aside and the appeal is allowed.

Order Date :- 3.5.2023

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