Allahabad High Court
Arun Kumar Gupta vs State Of U.P. on 21 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:91345
Court No. - 91
Case :- APPLICATION U/S 482 No. - 23414 of 2023
Applicant :- Arun Kumar Gupta
Opposite Party :- State of U.P.
Counsel for Applicant :- Abhay Raj Yadav,Neeraj Pandey,Raj Kumar Sharma
Counsel for Opposite Party :- G.A.,Shailesh Pandey
Hon'ble Prashant Kumar,J.
1. Heard Sri Raj Kumar Sharma, learned counsel for the applicant, Sri Shashi Dhar Pandey, learned Additional Government Advocate for the State-O.P. no.1, Sri Shailesh Pandey, learned counsel for the opposite party no.2 and perused the record.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant praying for quashing charge sheet dated 16-11-2022, cognizance and summoning order dated 14-12-2022 as well as entire proceedings of Case No. 106 of 2023 (State Vs. Arun Kumar Gupta and others) arising out of case crime no. 161 of 2022, under Sections 406 and 420 IPC P.S. Kotwali Dehat, district Mirzapur.
3. Learned counsel for the applicant submits that in the instant case the opposite party no.2 lodged an F.I.R. on 06-08-2022 against the applicant with an allegation that the applicant is an Interior Designer, who had taken Rs.39 lacs for interior designing of the house and there was an agreement between them, as per which the entire amount taken in advance would be returned along with interest @ 2 per cent if work is not completed within time. Further allegation is, that in order to grab the money, the applicant did not complete the work. The police after investigation submitted charge-sheet on 16-11-2022 and summons were issued on 14-12-2022. The applicant has challenged the charge-sheet as well as summoning order by means of the instant application. It is submitted by the learned counsel for the applicant that as per the agreement work had been started and 50 per cent of the work had been completed, but due to COVID pandemic, the entire work could not be completed. Further submission is that no offfence under Section 406 IPC is made out as he had no intention to cheat the opposite party no.2. To buttress his argument, he has placed reliance upon a judgment of Hon'ble Supreme Court in the case of Vijay Kumar Ghai and Others Vs. State of West Bengal and Others, reported in 2022 (3) JT 411.
4. Per contra, learned A.G.A. and learned counsel for the opposite party no.2 have vehemently opposed the application and contended that from bare perusal of the F.I.R. it cannot be said that no prima facie offence is made out against the applicant. It is further submitted that the Court below has rightly summoned the applicant and no interference is required by this Court in the instant application as well as the on going proceedings.
5. From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court.
6. Hon'ble Supreme Court in the matter of State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335 has laid down the guidelines under which circumstances the Court should, in its inherent power, entertain an application under Section 482 Cr.P.C. The guidelines are as follows:-
"(i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(iv) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(vii) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7. Further, the Hon'ble Supreme Court in the cases of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, and lastly, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 has held that only those cases in which no prima facie case is made out can be considered in an application under Section 482 Cr.P.C.
8. The instant application does not fall under the guidelines laid down by the Hon'ble Supreme Court in the judgments mentioned above, and followed in a number of matters. Moreover, the facts as alleged cannot be said that, prima facie, no offence is made out against the applicant. It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not.
9. Hence, the instant application filed under Section 482 Cr.P.C. cannot be entertained and is, accordingly, dismissed.
Order Date :- 21.5.2024
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