Allahabad High Court
Sarvesh Kumar vs State Of U.P. And Another on 21 May, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:85352
Court No. - 87
Case :- APPLICATION U/S 482 No. - 34866 of 2024
Applicant :- Sarvesh Kumar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Vivek Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Prashant Kumar,J.
1. Heard Sri Vivek Kumar Singh, learned counsel for the applicant, Sri Durgesh Kumar Tripathi, learned A.G.A. for the State-O.P. no.1 and perused the record.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash summoning order dated 01.09.2023 and NBW dated 02.01.2024 passed by Judicial Magistrate (Sadar), Farrukhabad in Complaint Case No.2859 of 2020 (Khuman Singh vs. Sarvesh Kumar and others), under Section 417 IPC, Police Station-Kotwali Fatehgarh, District-Farrukhabad pending in the Court of Judicial Magistrate, Sadar, District-Farrukhabad.
3. In the instant matter, O.P. no.2 moved an application u/s 156 (3) Cr.P.C. 06.03.2020 against three accused including the present applicant. The same has been treated as a complaint case vide order dated 23.10.2020. As per complaint version, O.P. no.2 is an ex-serviceman who retired from service in the year 2012. Thereafter, he has invested all his earnings of his soldier's life for starting a business of brickkiln. He has started the said business on being deceived by the inducement of one Sarvesh (present applicant), who happens to be his distant relative. It is further alleged that apart from the complainant, Sarvesh involved two other partners in the said business, who also made investment in the business. It is also alleged that Sarvesh used to recover all the expenses of the brickkiln from the complainant and the other two partners, whereas he himself spent very meagre amount. Accused Sarvesh used to keep most of the income from profit in the business by using dishonest means, hence, the other partners left the business after settling their accounts. However, the cheque of ?2,54,000/- given to one of the partners namely, Yaduveer Singh by the applicant was dishonoured and a proceeding under Section 138 N.I. Act was initiated against the applicant. When the complaint asked Sarvesh to settle his account expressing his intention to not to do business with him, Sarversh got a civil suit filed against the complainant/O.P. no.2 wherein along with Sarvesh, the land owner, on whose land the brickkiln was being run, was made co-plaintiff. In the said suit, out of family pressure, Sarvesh agreed to pay ?3,00,000/- through cheque to O.P. no.2, however, all the claim of O.P. no.2 in the business of brickkiln were put to an end. Thereafter, despite several requests by O.P. no.2 when the amount of ?3,00,000/- was not paid, on 11.02.2020 when O.P. no.2 went to ask for his money, accused Sarvesh, his two relatives used filthy language against him and also assaulted him. The accused also intimidated to kill him. After adducing evidence and conducting preliminary enquiry, summoning order has been passed on 01.09.2023 and due to non-appearance of the applicant, NBW has also been issued against him vide order dated 02.01.2024. Both the aforesaid orders have been assailed by means of this application.
4. Learned counsel for the applicant submitted that even if the allegations made in the complaint are taken to be true on its face value, no case u/s 417 IPC is made out against the applicant. He next submitted that the summoning order is barred by limitation. He further contended that the summoning order is cryptic one and has been passed without application of judicial mind and contrary to law laid down by Hon'ble Supreme Court in the matter of Sunil Bharati Mittal vs. Central Bureau of Investigation, AIR 2015 Supreme Court 923. He next argued that for recovery of money, criminal prosecution should not be initiated and the appropriate remedy available to O.P. no.2. was to file money suit before the competent court. He further submitted that the applicant has never committed any offence as alleged against them. Further submission is that no offence against the applicants is disclosed and the court below has utterly failed to consider that no prima facie case is made out against the applicant. He also pointed out certain documents in support of his contention. In the alternative, he also argued that at least liberty may be given to the applicant to file a bail application before the court of competent jurisdiction, which may be decided in terms of decision of the Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and another (2021) 10 SCC 773.
5. Per contra, learned A.G.A. vehemently opposed the application and contended that the applicant has not returned back the amount to O.P. no.2 and has committed cheating. He further submitted that the version of the complaint has been fully corroborated by O.P. no.2 in his statement recorded u/s 200 Cr.P.C. 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. Learned A.G.A. further submitted that as far as giving liberty to the applicant to file bail application is concerned, he has no objection if the trial court is directed to decide the bail application of the applicant in terms of decision of the Hon'ble Supreme Court in Satender Kumar Antil(supra).
6. Heard the submissions advanced by learned counsel for the parties and perused the record.
7. No doubt it is true that one of factors of lodging the instant complaint case is regarding recovery of money. However, the second factor in the complaint is about scuffle and intimidating the complainant/O.P. no.2. As far as the arguments advanced on behalf of the applicant are concerned, the same may be raised before the trial court during trial of the case.
8. From bare perusal of the materials 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.
13. However, as prayed by learned counsel for the applicant, the applicant will be at liberty to appear before court below and file an appropriate application for bail, which shall be decided in the light of decision rendered in Satender Kumar Antil's case (supra).
Order Date :- 21.5.2025
Manish Himwan
