Priyank Varshney @ Kaku vs State Of Up And Another
2025 Latest Caselaw 1306 ALL

Allahabad High Court

Priyank Varshney @ Kaku vs State Of Up And Another on 5 June, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:95313
 
Reserved
 
Court No. - 48
 

 
Case :- APPLICATION U/S 482 No. - 20267 of 2024
 

 
Applicant :- Priyank Varshney @ Kaku
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Anil Kumar,Mohit Singh
 
Counsel for Opposite Party :- G.A.,Jitendra Singh
 

 
Hon'ble Raj Beer Singh,J.
 

1. Heard learned counsel for the applicant, learned counsel appearing for opposite party no.2, learned AGA for the State and perused the record.

2. This application under Section 482 CrPC has been preferred for quashing of entire proceedings, including summoning order dated 01.04.2024, of Complaint Case No.386/2024 (Lavish Gupta v. Priyank Varshney @ Kaku), under Sections 406, 504 IPC, Police Station- Hasanpur, District- Amroha, pending in the court of Civil Judge (Junior Division)/Judicial Magistrate, Hasanpur, Amroha.

3. It is submitted by learned counsel for the applicant that impugned complaint has been lodged making false allegations and that no prima facie case under Section 406 IPC is made out. It was stated that there were business transactions between the parties and in that relation the opposite party no.2 has issued a cheque of Rs.4,00,000/- and when it was presented in bank, it was dishonoured. In that regard, a case under Section 138 of Negotiable Instruments Act has been filed against the applicant. The impugned complaint has been lodged by the opposite party no.2 by concealing that fact and other material facts. It is further submitted that the main allegation of applicant is that complainant has given an amount of Rs.23,39,920/- to the applicant and only an amount of Rs.7,20,000/- was returned back by the applicant and as per complainant, an amount of Rs.15,49,000/- is due upon the applicant. Learned counsel has referred the case of Satishchandra Ratanlal Shah v. State of Gujarat and Another, 2019 (9) SCC 148 and submitted that the mere fact that applicant has failed to return the amount of complainant, would not constitute the offence under Section 406 IPC.

4. It is further submitted that in the impugned summoning order, learned Magistrate has referred contents of complaint and summoned the applicant. There is absolutely nothing to indicate that learned Magistrate has considered the statement of complainant recorded under Section 200 CrPC and of witnesses under Section 202 CrPC. No satisfaction has been recorded by the learned Magistrate regarding summoning of applicant. Learned counsel has referred facts of the matter and statement of complainant and of witnesses and submitted that no prima facie case is made out against the applicant and that impugned proceedings are malicious and thus, liable to be quashed. Learned counsel has placed reliance upon case of Rekha Sharad Ushir V Saptashrungi Mahila Nagari Sahkari Patsansta 2025 LiveLaw (SC) 355.

5. Learned counsel for opposite party no.2 has opposed the application and submitted that in view of allegations made in the impugned complaint and material on record, a prima facie case is made out against the applicant. Learned counsel submitted that complainant was having a two-wheeler agency at Kotdwar and the same was given to applicant for running business of the same but the applicant has committed breach of trust and misappropriated funds of the agency. Learned counsel has referred the statement of complainant and of witnesses and submitted that a prima facie case is made out against the applicant. The applicant has moved anticipatory bail application which has already been rejected by the session court. It was submitted that no case for quashing of proceedings is made out.

6. I have considered the rival submissions and perused the record.

7. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if 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, the complaint/ charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, the Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. The broad guidelines laid down by the Apex court for quashing a criminal complaint read as under:

"In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) 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.

(2) 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.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same 1 1992 Supp 1 SCC 335 6 do not disclose the commission of any offence and make out a case against the accused.

(4) 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.

(5) 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.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide 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."

8. Law on point of summoning is also well settled that summoning of an accused in a criminal case is a serious matter and the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate is required to examine the nature of allegations made in the complaint and the evidence, both oral and documentary in support thereof and as to whether that would be sufficient for proceeding against the accused. In this connection reference may be made to case of Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609, Mehmood Ul Rehman v. Khazir Mohammad Tunda and Others (2015) 12 6 SCC 420 and Krishna Lal Chawla and Others v. State of Uttar Pradesh and Another (2021) 5 SCC 435.

9. In the case of Lalankumar Singh and Others v. State of Maharashtra 2022 SCC OnLine SC 1383, the Court observed that the order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. No doubt, that the order need not contain detailed reasons. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. In case of Rekha Sharad (supra), Hon'able Apex Court observed that recording the complainant's statement on oath under section 200 CrPC is not an empty formality. The object of recording the complainant's statement and witnesses, if any, is to ascertain the truth. The Magistrate is duty-bound to put questions to the complainant to elicit the truth. The examination is necessary to enable the Court to satisfy itself whether there are sufficient grounds to proceed against the accused. After considering the complaint, the documents produced along with the complaint, and the statements of the complainant and witnesses, if any, the Magistrate has to apply his mind to ascertain whether there is sufficient ground for proceeding against the accused. If he is satisfied that there is sufficient ground to proceed against the accused, then the Magistrate has to issue a process in terms of sub-Section (1) of section 204 CrPC. Setting criminal law in motion is a serious matter. The accused faces serious consequences in the sense that he has to defend himself in the trial.

10. In the present case it appears from record that in his statement under section 200 CrPC, the complainant has alleged that applicant is his friend and that he (complainant) opened a two wheeler agency, which was handed over to the applicant for management of the same. The complainant has further stated that in the year 2019 - 2021 he has given an amount of Rs.16,50,000/- and an amount of Rs.4,50,000/- was given to the applicant by taking the same from cousin of complainant. Besides that amount of Rs.6,89,000/- is due upon him from accounts and that applicant has returned only an amount of Rs.7,90,000/- and thereby an amount of Rs.15,50,000/- is still due upon him. Thus, it appears that only grievance of complainant is that his whole amount has not returned back. In case of Satishchandra Shah (supra), it was observed by the Apex Court that the law clearly recognizes a difference between simple payment / investment of money and entrustment of money or property. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in section 405 IPC without there being a clear case of entrustment. In the instant matter it appears that the learned Magistrate has not considered the statement of complainant and merely a passing reference has been made that statement of complainant and of witnesses were perused. It appears that learned Magistrate has incorporated the contents of the complaint and observed that he has perused statement of complainant and of witnesses and summoned the applicant without recording any satisfaction that that there was sufficient ground for proceeding against accused accused or whether a prima-facie is made out. Learned Magistrate has not considered whether ingredients of offence under 406 IPC are made out or not. Though at the stage of summoning the Magistrate is not required to pass a detailed order but never the less it is incumbent upon the magistrate to consider whether a prima facie case is made out.

11. In view of aforesaid, it is clear that the impugned summoning order is not in accordance with law and thus, liable to be set aside. Accordingly the impugned summoning order is set aside and matter is remanded back to the Court concerned to consider the matter on point of summoning and pass an order afresh in accordance with law.

12. Application under section 482 CrPC is disposed of in above terms.

Order Date :- 05.06.2025

Rama Kant