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Allahabad High Court · body

2009 DIGILAW 1516 (ALL)

TAPAS ADHIKARI v. STATE OF U P

2009-04-17

RAVINDRA SINGH

body2009
RAVINDRA SINGH, J. This appli cation has been filed by the applicants Ta-pas Adhikari and Dr. Rajendra Singh with a prayer to quash the proceedings of crimi nal case No. 2149 of 2008 pending in the Court of learned Special Chief Judicial Magistrate, Meerut including the order dated 9. 7. 2008 by which the learned Magis trate concerned has rejected the final re port, taken the cognizance and summoned the applicants to face the trial for the cjf-fence punishable under sections 406, 420, 504 I. P. C. 2. The facts, in brief, of this case are that the FIR of this case has been lodged by O. P. No. 2 in case crime No. 286 of 2007 under sections 406, 420, 504 I. P. C. at police station Lal kurti. District Meerut on 19. 9. 2007 alleging therein that M/s. Sanjivini Multispeciality Hospital, a partner ship firm, comprising five partners, namely, Sri Chitranjajan Mohan Verma, Shri Sachin Arora, Smt. Nirmal Arora, Shri Bakhtwar Singh and Smt. Rajbala re quested the applicants and the Allahabad Bank to grant a term loan of Rs. 70 lacs (seventy lacs) which was accordingly granted by the applicants on 17th April, 2004 to run the hospital, the Firm. The Firm and the partners executed necessary secu rity documents including a loan agreement on 17. 4. 2004. In the month of December 2006, O. P. No. 2 had met the applicants for payment of rest of the loan amount, but after consultation the applicants asked to become the partners of the Firm and to provide full co-operation, thereafter on 19. 2. 2007 the new partnership deed dated 5. 2. 2007 was prepared and a cheque of Rs. 50, 000, - was given to the applicant No. 1, thereafter, the inauguration of the hospital was done on 23. 2. 2007 in which the appli cants have also attended the function but they demanded Rs. Five lacs for providing required co-operation, in respect of that demand, Rs. One lac was paid to applicant No. 2 and Rs. 50, 000/- to applicant No. 1 and rest of the amount of Rs. 3, 50, 000/-was to be paid. 2. 2007 in which the appli cants have also attended the function but they demanded Rs. Five lacs for providing required co-operation, in respect of that demand, Rs. One lac was paid to applicant No. 2 and Rs. 50, 000/- to applicant No. 1 and rest of the amount of Rs. 3, 50, 000/-was to be paid. Thereafter, O. P. No. 2 started to run the hospital thereafter dis honesty came in the mind of the applicants, they called O. P. 2 and stated that the Chairman was not agreed with his pro posal, he wants to dispose of the property and for not doing so, provide Rs. 4 lacs to the Chairman, the O. P. No. 2 expressed his inability as he was misbehaved by appli cant No. 2 and he was pushed out from the office, thereafter, the applicants extended threats, it is alleged that the applicants misappropriated the amount of Rs. 1, 50, 000/- and they have cheated him. 3. After investigation, the final re port has been submitted the same has been rejected by learned Special CJM, Meerut and has taken the cognizance and summoned the applicants to face the trial for the offences punishable under sections 406, 420, 504 I. P. C. vide order dated 9. 7. 2008. 4. Being aggrieved from the order dated 9. 7. 2008, the present application has been filed with a prayer to quash the sum moning order along with criminal proceed ings of criminal case No. 2149 of 2008. 5. Heard Sri Sanjiv Singh, learned Counsel for the applicants and A. G. A. for the State of U. P. 6. It is contended by the learned Counsel for the applicants that there is a dispute between the officers of the Bank and customer O. P. No. 2, the allegation are purely of civil in nature for which the rem edy in Civil Court is available. The O. P. No. 2 has filed a civil suit which is still pending in the Civil Court. The civil suit is not maintainable whereas Civil Court has not yet decided the maintainability of the civil suit. The allegations are not disclosing any offence under sections 406, 420 & 504 I. P. C. Considering the same, without doing proper investigation, the final report has been submitted but the learned Magistrate concerned has rejected the final report without any reason. The allegations are not disclosing any offence under sections 406, 420 & 504 I. P. C. Considering the same, without doing proper investigation, the final report has been submitted but the learned Magistrate concerned has rejected the final report without any reason. The learned Magistrate concerned has committed manifest error in taking the cognizance and summoning the accused applicants to face the trial. The impugned order dated 9. 7. 2008 is illegal and is liable to be set aside. On the basis of the impugned order dated 9. 7. 2008, the prosecution of the applicants is illegal, therefore, the proceedings of criminal case No. 2149 of 2008 pending in the Court of learned Special Chief Judicial Magistrate, Meerut may be quashed. 7. In reply of the above contention, it is submitted by learned A. G. A. that in the present case, final report has been rejected by the learned Magistrate concerned after considering the police report and state ments recorded under section 161 Cr. P. C, which disclose the commission of offence. The learned Magistrate concerned has not committed any error in rejecting the final report and taking cognizance for the of fences punishable under sections 406, 420, 504 I. P. C. because the material collected by the I. O. during investigation is clearly dis closing the aforesaid offence. The learned Magistrate concerned has not considered any extraneous material for the purpose of taking the cognizance. There is no illegality in the prosecution of the appli cants and the allegations are disclosing the commission of the criminal offence. It is well settled law that the criminal and civil proceedings may proceed parallel. The pre sent application is devoid of merit and it may be dismissed. 8. Considering the submissions made by learned Counsel for the appli cants, learned A. G. A. for the State of U. P. and from the perusal of the record it ap pears that in the present case, the final re port has been submitted in case crime No. 286 of 2007 P. S. Lalkurti, District Meerut, the same has been rejected by learned Spe cial Chief Judicial Magistrate, Meerut, taken the cognizance of the offence under section 406, 420 and 504 I. P. C. vide order dated 9. 7. 2008, the learned Magistrate con cerned has passed the order dated 9. 7. 7. 2008, the learned Magistrate con cerned has passed the order dated 9. 7. 2008 after considering the police report, which discloses the commission of offence, the learned Magistrate concerned has not con sidered any extraneous material, learned Magistrate concerned has not committed any procedural mistake so far as the consti tution of the above mentioned offence is concerned, the statements recorded under section 161 Cr. P. C. are disclosing the commission of the offence, there is no ille gality in the order dated 9. 7. 2008. So far as the pendency of civil suit is concerned, the proceedings in civil or revenue Courts are filed for the purpose of obtaining different reliefs. The criminal proceedings may not be quashed in case such proceedings are barred by law or the fabrics of the proceed ing is parallel of the civil in nature for constituting any offence. Its remedy is available in civil or revenue Courts but on the basis of allegation, prima facie, any criminal offence is made out, the same may not be quashed only on the ground that civil proceedings are pending. It is well settled proposition of law that civil and criminal proceedings may run parallel, therefore, on account of pendency of the civil suit, the proceedings of the present case cannot be quashed, therefore, the prayer for quashing the impugned order dated 9. 7. 2008 and the proceedings of criminal case No. 2149 of 2008 under sec tions 406, 420 and 504 I. P. C. pending in the Court of learned Special Chief Judicial Magistrate, Meerut is refused. 9. However, considering the sub missions made by learned Counsel for the applicant that during pendency of the in vestigation, the arrest of the applicants was stayed, it is directed that the applicants shall appear before the Court concerned within 30 days from today, till then, bail able warrant/nbw if any, issued against the applicants shall be kept in abeyance. In case they apply for bail, the same shall be heard and disposed of on the same day. With the above direction, this applica tion is disposed of finally. Application Disposed Of. .