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2018 DIGILAW 425 (ALL)

Ashish Kumar Singh @ Sonu v. State of U. P.

2018-02-16

KARUNA NAND BAJPAYEE

body2018
JUDGMENT & ORDER : Karuna Nand Bajpayee, J. This application u/s 482 Cr.P.C. has been moved on behalf of applicants seeking the quashing of order of taking cognizance and issuance of summons against the applicants dated 08.09.2017 passed by A.C.J.M., Court No.-VII, Varanasi as well as entire proceedings in complaint Case No.1073 of 2017 (Amit Kumar Singh vs. Raghvendra Pratap Singh and others), u/s 406, 504, 506 I.P.C., Police Station-Sarnath, District-Varanasi. 2. Shri Rajendra Singh, Advocate filed his power today on behalf of opposite party no.2, which is taken on record. 3. Heard learned counsel for the applicants, learned counsel for opposite party no.2 and learned A.G.A. Perused the entire record. 4. Submission of counsel for the applicants is that there was no agreement arrived at in between the parties and therefore there is no question of any criminal breach of trust that might have been committed by the applicants. Further submission is that the criminal intention is not deducible from the contents of the complaint and therefore any criminal offence shall not be made out and at the most the dispute in question would be of a civil nature and therefore filing of the complaint is a bad use of the process of law. Counsel has also tried to submit before the Court that the allegation of hurling abuses will also not constitute the offence u/s 504 I.P.C. and similarly the threat that is said to have been given to cause death will not come under the definition of Section-506 I.P.C. Contention is that the intention to insult should be there in the allegations but the criminal intention in all the alleged offences is entirely lacking and as such none of the offences shall be made out and therefore the complaint in question ought to be quashed. 5. All other contentions raised by the applicants' counsel relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. 6. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. 6. So far as the law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is concerned, the same is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required. 7. Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The cases of (1) Chandra Deo Singh Vs. Prokash Chandra Bose, (1963) AIR SC 1430, (2) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker, (1960) AIR SC 1113 and (3) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 may be usefully referred to in this regard. 8. The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab, (1960) AIR SC 866 and in the case of State of Haryana Vs. Bhajan Lal, (1992) SCC(Cri) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 . The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case has recognized certain categories in which Section-482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked. 9. Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case. 10. Perusal of the complaint indicates that there are clear allegations that negotiations about the sale of property in question were arrived at in between the parties and the same related to Arazi No.399 having Area 2040 Sq. Feet in Mauja Gaurakala Pargana Jalhupur, Tehsil-Sadar, District-Varanasi. The amount fixed for the transaction was Rs.12,50,000/-. With this settlement that was arrived at in between the parties it cannot be said that the applicants had not agreed to sell the property in question in lieu of aforesaid money. The allegation in this regard is clear and categorical and the arguments raised on behalf of counsel for the applicants that there is no agreement arrived at in between the parties with regard to sell or the price of the property, lacks factual basis. The details have been further given in the complaint about the different cheques that were issued to make the payment. The cheque numbers and amounts have also been given in detail. Paragraph nos.4 and 5 of the complaint contained those elaborate details. There is no ambiguity in the allegations that by different cheques that were issued, Rs.10 lacs were given by way of cheques while Rs.2.5 lacs were given in the form of cash and thus in total Rs.12,50,000/- was handed over. So far the allegation of criminal intention made in the complaint is concerned, what is of value and significance whether the intention is deducible from the contents of the allegation or not. That somebody was having a certain criminal intention is not solely dependent upon the assertion of this fact in words. One may state and assert that the accused was having a criminal intention and yet the circumstances and the facts of the case may be such which may demonstrate that the accused could never had any such criminal intention in that given case as has been claimed by prosecution. One may state and assert that the accused was having a criminal intention and yet the circumstances and the facts of the case may be such which may demonstrate that the accused could never had any such criminal intention in that given case as has been claimed by prosecution. Similarly one may never say it in so many words that the accused was having a criminal intention but the act alleged to have been committed by him may be of such nature that it may not be at all difficult to infer that his conduct was inspired with a particular criminal intention. For illustration, if one accused comes and shoots someone in his chest, the intention is deducible from the conduct itself. It is wholly immaterial whether it is said or not that the shooting was done with intention to kill. Similarly, if somebody comes and gives a slap to some victim then the mere fact that somebody says that the slap was given with intention to kill, will be wholly of no significance. The intention is to be deduced from the facts and circumstances of the case and is not solely dependent whether the factum of having such intention has been alleged in so many words or not. So far as the facts of the present case is concerned, it is so apparent from the allegation that a settlement was arrived at in between the parties regarding to sale of property and the very fact that the amount settled for the sale was given and accepted by the accused by way of receiving cheques and cash is also a proof about the factum of agreement that was arrived at in between the parties. If there was no agreement then there was no question for the accused to have received the money in question. The factum of the money having been given to the accused does not appear to be at all having any serious dispute. Another fact which is apparent from the allegations is that despite repeated requests that were made the accused after having gobbled up the money wriggled out and then refused to sell the property in question. It is not difficult to infer that such an act and conduct is wholly incompatible with any honest or bonafide intention. Another fact which is apparent from the allegations is that despite repeated requests that were made the accused after having gobbled up the money wriggled out and then refused to sell the property in question. It is not difficult to infer that such an act and conduct is wholly incompatible with any honest or bonafide intention. In fact the counsel for the applicants has not been able to show any such facts which may indicate a contrary intention or a bonafide intention on the part of accused for having refused to sell the property. There is nothing to indicate that the money that has been accepted by the accused has been returned back or that there are any steps taken on behalf of accused which may indicate that they were having any bonafide intention or that the refusal to comply with the agreement or settlement was inspired by any other intention than a dishonest intention to misappropriate and gobble up the money, which too was not a small or paltry amount and therefore the contention raised in this regard does not hold much water. The other contention with regard to the absence of intention to intimidate or insult also does not commend itself to the court. The allegation is that when the accused refused to sell the property in question they were approached by the complainant side. Then at that stage filthy abuses and specific foul invectives were hurled by the accused and in fact it has also been alleged that the accused are a kind of land mafia people of criminal nature and when the complainant insisted to comply with the settlement and give back the money, the threat to kill him was given and it was said that the complainant and his family would be eliminated, if at all this matter would be pressed further on behalf of complainant. The facts as have been alleged in the complaint, in the opinion of this Court do not leave any doubt that the intention to kill and intention to insult were apparent on the face of record. There is no good reason to draw any contrary inference. 11. The facts as have been alleged in the complaint, in the opinion of this Court do not leave any doubt that the intention to kill and intention to insult were apparent on the face of record. There is no good reason to draw any contrary inference. 11. All submissions made by the applicants' counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, and also the material available on record make out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the complaint or the summoning order or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing. 12. The prayer for quashing the same is refused as I do not see any abuse of the Court's process either. 13. The application lacks merit and stands dismissed therefore.