Amit Kumar Sharma @ Amit Sharma vs State Of U.P. And Another
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Allahabad High Court

Amit Kumar Sharma @ Amit Sharma vs State Of U.P. And Another on 13 May, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:78257
 
Court No. - 87
 

 
Case :- APPLICATION U/S 482 No. - 17671 of 2024
 

 
Applicant :- Amit Kumar Sharma @ Amit Sharma
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Amit Shukla,Nilesh Kesharwani
 
Counsel for Opposite Party :- G.A.,Neetu Singh
 

 
Hon'ble Prashant Kumar,J.
 

1. Heard Sri Amit Shukla, learned counsel for the applicant, Sri S.D. Pandey, learned A.G.A. for the State-O.P. no.1 and Ms. Neetu Singh, learned counsel for O.P. no.2 and perused the record. Counter affidavit filed on behalf of O.P. no.2 is taken on record.

2. The present application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the entire proceedings of Complaint Case No.12546 of 2022 (Pradeep Kumar vs. Amit Sharma and others), under Section 406 IPC, Police Station-Kamla Nagar, District-Agra pending in the Court of A.C.J.M.(Room No.4), Agra.

3. Learned counsel for the applicant submitted that O.P. no.2 had taken gold loan of ?57,000/- for which he has deposited a golden chain weighing 21.15 g of 18 carat, which was repayable in 24 EMI of ?2,846/- per month. Thereafter, he defaulted in payment of EMI and notices were sent to him to deposit the defaulted amount. He further submitted that even publication was made in daily newspaper and when the complainant did not appear, auction of the mortgaged ornament was carried out in which ?70,838/- was recovered. After auction and adjustment of entire loan amount of ?8387/- was in excess, which was returned to O.P. no.2 on 04.10.2021. He further submitted that the applicant had followed all the terms of loan agreement and after giving notice to O.P. no.2, the said auction was held. He submitted that O.P. no.2 has filed the complaint case just to put undue pressure on the applicant has filed the complaint case, which is pure abuse of process of law.

4. Per contra, learned counsel for O.P. no.2 submitted that O.P. no.2 has not defaulted in payment of EMI and the applicant, who is Branch Manager of the Company and has illegally sold the ornaments of O.P. no.2, has committed the offence as alleged in the complaint. She further submitted that no notice was ever served upon O.P. no.2 and there is nothing on record to prove the same. She also stated that the publication regarding auction of mortgaged ornament was not made in a local newspaper, which has circulation in that area, and hence no credence can be given to said publication. She has also disputed the submission of learned counsel of the applicant wherein he has stated that after auction and adjustment of entire loan amount of ?8387/- was in excess, which was returned to O.P. no.2 on 04.10.2021. She next submitted that after adducing evidence and perusing the statements u/s 200 and 202 Cr.P.C. the court below has passed summoning order on 13.02.2023, which suffers from no illegality or infirmity.

5. Sri S.D. Pandey, learned A.G.A. has vehemently opposed the application and submitted that there is nothing on record to show that notice was ever served on O.P. no.2. He further added that the publication of these matters needs to be made in at least one national newspaper, which has wide circulation in that area. It is 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.

6. Having heard learned counsel for the parties and after perusing the record, I am of the view that the publication of notice was not done properly by the applicant and the terms and conditions of the loan agreement was not followed. There is no illegality in the entire complaint proceedings.

7. Apart from aforesaid, 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.

8. 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."

9. 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.

10. 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.

11. Hence, the instant application filed under Section 482 Cr.P.C. cannot be entertained and is, accordingly, dismissed.

Order Date :- 13.5.2025

Manish Himwan