Allahabad High Court
Rishu Kumar vs State Of U.P. And Another on 2 April, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:45864
Court No. - 42
Case :- APPLICATION U/S 528 BNSS No. - 2918 of 2025
Applicant :- Rishu Kumar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Kanchan Sharma,Prashant Vyas,Sr. Advocate
Counsel for Opposite Party :- G.A.,Saumitra Dwivedi
Hon'ble Prashant Kumar,J.
1. Heard Sri Uday Karan Saxena, learned Senior Advocate assisted by Sri Prashant Vyas, learned counsel for the applicant, Sri S.D. Pandey, learned A.G.A. for the State-O.P. no.1 and Sri Saumitra Dwivedi, learned counsel for O.P. no.2 and perused the record.
2. Third Supplementary Affidavit, annexing confessional statement of the applicant before police on 09.02.2021, has been filed by the learned counsel for the applicant, which is taken on record.
3. The present application under Section 482 Cr.P.C. has been filed by the applicant praying for quashing summoning order dated 13.06.2023 including supplementary charge sheet dated 25.05.2023 in Criminal Case No.14733 of 2022 (State of U.P. vs. Mohit Goyal and others), arising out of Case Crime No.106 of 2021, under Sections 420, 467, 468, 471, 406, 120-B IPC, Police Station-Surajpur, District-Gautam Budh Nagar pending in the Court of Civil Judge (Junior Division)/F.T.C. Court no.1, Gautam Budh Nagar.
4. An FIR was lodged by O.P.no.2/informant on 09.02.2021 against six named and one unknown accused for the offences under Sections 420, 467, 468, 471, 406, 120-B IPC. The case of the prosecution as mentioned in the FIR is that one of the accused Mohit Kumar Goyal came to reside in the flat adjacent to that of the informant being Flat No.1001A, FW-10, M3M, Golf Estate Sector-65, Gurugram along with his wife Dharna Garg and became friend with him. It is further alleged in the FIR that with an intention to defraud the informant and his wife, Rimpi Bansal, Mohit Goyal and his wife told them that they are doing business of dry fruits and spices on a large scale resulting into huge turn over of crores of rupees per annum. Further allegation in the FIR is that in this way they enticed the informant and his wife to invest in their business. The accused also assured the informant side that they will get minimum profit of 5% per month on their invested amount. The accused further introduced the informant to Sandeep Singhal and Aman Singhal, mentioning them as their relatives, and these people also tried to entice the informant side to invest in the said business. Thereafter, the informant's wife invested in a newly formed company in the name and style of M/s R.D. Dry Fruits Pvt. Ltd. in which Rimpi Bansal had 75% share whereas Dharna Garg had 25% and the whole work of the company was to be looked after by Mohit Goyal and Dharna Garg and they were in possession of the signed cheques of the Company which was supposed to be used for buying dry fruits but major portion of the amount was transferred by Mohit Goyal to one M/s Shyam Trading Company for purchase of goods with a view to misappropriate the funds of M/s R.D. Dry Fruits and all the goods were then shown as sold to one M/s Aman Trading Company, which was owned by Aman Singhal and Sandeep Singhal. It is further alleged that Mohit Goyal has transferred certain amount to the company running in the name and style of M/s Family of Dry Fruits Pvt. Ltd. It is further alleged that the money of M/s R.D. Dry Fruits Pvt. Ltd. had been illegally transferred to other companies for the purpose of purchase and sale of dry fruits by the accused persons but the actual fact is that they had never carried on the business of dry fruits and no dry fruits were ever received or sold by the said company in which informant's wife had invested and the informant side have been cheated.
5. Learned Senior Counsel for the applicant submitted that the applicant is only an employee of accused Mohit Goyal and he has not been named in the FIR. He next contended that in the evidence there is no whisper against the present applicant. The only evidence against him is his confessional statement, which does not attract any penal provision. He next submitted that the applicant has not committed any offence as alleged against him. Further submission is that no offence against the applicant is disclosed and the court below has utterly failed to consider as no prima facie case is made out against the applicant. He also placed reliance on certain documents in support of his contention.
6. Per contra, learned A.G.A. as well as learned counsel for O.P. no.2 vehemently opposed the application and contended that the applicant has already been enlarged on bail on 25.07.2023 but he along with co-accused Mohit Goyal is not appearing in the trial. Learned counsel for O.P. no.2 next contended that summoning order was passed on 13.06.2023 and after lapse of 1 & 1/2 year, the instant application has been filed just to delay the trial of the case. He also submitted that the allegation against the present applicant is of criminal conspiracy, which is a serious offence and he deserves no leniency by this Court. He further submitted that the Court below has rightly summoned the applicant and no interference is required by this Court in the impugned order as well as the on going proceedings. At last, learned A.G.A. as well as learned counsel for O.P. no.2 submitted that the arguments raised on behalf of the applicant are plea of defence, which can only be gone through by the court below after adducing evidence during course of trial and not by this Court.
7. Having gone through the rival submissions and after carefully perusing the record, it is evident that the instant application has been filed eighteen months after passing of the summoning order. It is also glaring that the applicant, after being enlarged on bail, has not joined the trial till date, with the effect that the trial is not going on. Evidently, the instant application seems to have been preferred just to stall the trial and the instant case, in my view, does not seem to be a fit case for interference by this Court while exercising jurisdiction under Section 482 Cr.P.C.
8. From further perusal of material available 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.
9. 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."
10. 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.
11. 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(s). It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not.
12. Hence, the instant application filed under Section 482 Cr.P.C. cannot be entertained and is, accordingly, dismissed.
Order Date :- 2.4.2025
Manish Himwan
