Allahabad High Court
Ashish Vijay Srivastava vs State Of U.P. Thru. Its Addl. Chief Secy. ... on 30 May, 2024
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2024:AHC-LKO:42254
Court No. - 27
Case :- APPLICATION U/S 482 No. - 7155 of 2023
Applicant :- Ashish Vijay Srivastava
Opposite Party :- State Of U.P. Thru. Its Addl. Chief Secy. Deptt. Of Home, Lucknow And Others
Counsel for Applicant :- Amrita Singh,Bhupendra Prakash,Manvendra Singh
Counsel for Opposite Party :- G.A.,Anand Babu Dixit,Mukesh Kumar Mishra
Hon'ble Shamim Ahmed,J.
1. Heard Manverndra Singh, learned counsel for the applicant and Sri Avinash Dixit learned counsel for the opposite party No.2 and Sri Ashok Kumar Singh, learned A.G.A.-1 for the State and perused the record.
2. Sri Ratnesh Chandra and Mrs Ankita Tripathi, the Advocate Commissioner are also present.
3. The present application under Section 482 Cr.P.C. has been filed for quashing of the Charge sheet no. 01/2022, dated 22.08.2022 as submitted against the applicant in Case No. 93079 of 2022, Crime No. 0294/2021 "State of U.P. versus Ashish Vijay Srivastava", U/S 406, 504, of I.P.C., P.S. Mahanagar, Lucknow pending before the Learned Court of A.C.J.M. (Α.Ρ.) C.B.I., Lucknow and also to quash the summoning/cognizance order dated 18.10.2022 and the consequential processes issued by the learned Court of A.C.J.M. (A.P.) C.B.I., Lucknow, to ensure the appearance of the applicant in Case No. 93079 of 2022, Crime No. 0294/2021, State of U.P. versus Ashish Vijay Srivastava, P.S. Mahanagar, Lucknow pending before the Learned Court of A.C.J.M. (A.Ρ.) C.B.I., Lucknow.
4. Learned counsel for the appellant further submits that the applicant and opposite party no. 2 went through an agreement dated 13.04.2021 by which the applicant had given the contract for construction of the house having address C-185 Sector- C Near Channi Lal Chauraha, Mahanagar Lucknow. The terms and conditions had been gone thoroughly by both the parties and then entered into by signing the same.
5. Learned counsel for the appellant further submits that the applicant gave the map of the house to be constructed to the opposite party no.2 immediately and the same was to be constructed accordingly by the map according to the terms and conditions mentioned in the agreement, but due to certain dispute of an amount, the F.I.R. has been lodged by the opposite party no.2.
6. On 22.05.2024 this Court had passed the following order:
"Mrs. Ankita Tripathi, Sri Ratensh Chandra, the Advocate Commissioner have submitted the valuation report given by the Valuer of Lucknow Development Authority after serving the copy of the same to the applicant. The same is taken on record.
After some arguments, it appears that the matter may be settled amicably, as only some minor calculation is left.
Learned counsel for the applicant prays for some time to go through the Valuation Report and to submit reply.
Sri Anand Babu Dixit, learned counsel for the opposite party No.2 has no objection to the prayer made by learned counsel for the applicant.
Accordingly, list on 30.05.2024.
Interim order, granted earlier, is extended till the next date of listing. "
7. Today. learned counsel for the applicant has filed an objection to the Valuation Report and has disputed the valuation report and submits that his amount is due against the opposite party No.2 and the F.I.R.,which was lodged against the applicant is nothing but an abuse of process of law. The objection is taken on record.
8. Learned counsel for the applicant further submits that there was already an agreement entered between the parties, thus the matter is purely civil in nature and opposite party No.2 has tried to give colour to a civil dispute into criminal prosecution in spite of approaching the competent Civil Court, the F.I.R. has been lodged and the Investigating Officer was changed on his application moved before the Commissioner of Police and the matter was investigated by the Crime Branch, but the Crime Branch also in a mechanical manner submitted the charge-sheet against the applicant under Sections 406 and 504 I.P.C. without considering the evidence of record and the learned Magistrate also took cognizance in a routine manner without application of mind, thus the entire proceeding is liable to be quashed. In support of his argument learned counsel for the applicant has placed reliance on judgment of the Apex Court in the case of Binod Kumar and others Vs. State of Bihar and another (2014) 10 SCC 663.
9. Learned counsel for the opposite party No.2 Sri Avinash Dixit and Sri Ashok kumar Singh, learned A.G.A. for the State opposed the argument as advanced by learned counsel for the applicant and submits that the Investigation was conducted on the application moved by the applicant before the Commissioner of Police for change of the Investigating Officer and thereafter the Commissioner of Police transferred the Investigation to the Crime Branch, who by a detailed investigation after recording the statement submitted the charge-sheet against the applicant and the dropped the name of the other persons, who are named in the F.I.R., i.e. wife, mother and father of the applicant, thus the investigation was conducted on the application moved by the applicant, thus the investigation by the Investigating Agency was done in a fair manner after considering the entire evidence on record and the learned Magistrate also after due application of mind took cognizance in the matter and summoned the applicant, thus prima facie offence is made out against the applicant and the present application lacks merit and is liable to be rejected.
10. After considering the argument as advanced by learned counsel for the parties and after perusal of record, this court is of the view that the factual question cannot be seen before this Court by exercising power under Section 482 Cr.P.C., the trial court is the best court to adjudicate all the legal and factual question it is too early to quash the proceedings of the case.
11. At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:-(i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC (Crl.)426, (iii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192, (iv) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq & Anr.;, (Para-10) 2005 SCC (Cri.) 283 and (iv) M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918.
12. From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is whether uncontroverted allegation as made prima facie establishes the offence and whether chances of ultimate conviction are bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168, it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.
In the present case all the three counts are totally absent and the counsel also fail to demonstrate any of the three grounds by which the court can interfere for quashing of the criminal proceedings against the applicant, thus this court do not find any justification to interfere in the present application.
The charge-sheet and summoning order were rightly passed after due application of mind, thus in view of the above discussion and observation made by the Hon'ble Supreme Court, the application lacks merit and is accordingly dismissed.
The applicant has primarily raised issues regarding the correctness and thoroughness of the investigation conducted by the Investigating Officer, alleging a lack of proper evidence and a mechanical approach in filing the charge sheet. However, the allegations of fraud and irregularities in the construction work, discrepancies in the billing, and subsequent valuations by engineers and architects present complex factual disputes which cannot be adequately resolved in the exercise of jurisdiction under Section 482 Cr.P.C.
Furthermore, it is well-established that while taking cognizance of the charge sheet, the trial court exercises judicial discretion based on the materials placed before it. This Court does not find any procedural or substantive irregularity in the cognizance order dated 18.10.2022 that would warrant interference.
The judgment cited by learned counsel for the applicant is totally distinguishable from the fact of the present case.
13. The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in pursuance to the charge-sheet, cognizance and summoning order, the case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing of impugned cognizance order, summoning order, charge sheet and the entire proceedings of the aforesaid case is refused. There is no merit in this application filed by the applicants under Section 482 Cr.P.C.
14. Accordingly, this application filed under Section 482 Cr.P.C. by the applicants is dismissed.
Order Date :- 30.05.2024
Arvind
