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2019 DIGILAW 2147 (ALL)

Amar Cheema v. State of U. P.

2019-09-17

RAM KRISHNA GAUTAM

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JUDGMENT : Ram Krishna Gautam, J. Heard learned counsel for applicant, moved by the applicant, Amar Cheema, under Section 482 of Criminal Procedure Code, 1973 (in short 'Cr.P.C.') as well as learned AGA, appearing on behalf of State of U.P. and perused the record. 2. Learned counsel for the applicant argued that the applicant has been summoned because of being brother of Arjun Cheema. He is neither Director of Company, in question, nor was having any concern with the Company. A complaint was filed with incorrect facts that there were three Directors of the Company, whereas the documents, filed with this Application, are to the effect that there were four Directors of the Company and the complainant was neither Director nor is having any concern with above Company. It was said that Company was wound-up in the year 2011, whereas the Company was running till 2018. All taxes were being paid. If any embezzlement in the capital of the Company was there, the Directors will be responsible for the same, whereas present applicant, Amar Cheema, has no concern with the Company, but the Trial court of Additional Chief Judicial Magistrate, Gautam Buddh Nagar, vide summoning order, dated 22.10.2018, passed in Criminal Complaint No. 4645 of 2018 (Abhimanyu Ahlawat vs. Amar Cheema & others), has summoned the applicant, alongwith one other, for offence, punishable, under Sections 420 and 406 IPC, Police Station Sector 39, NOIDA, District Gautam Buddh Nagar. Hence, this Application, under Section 482 of Cr.P.C., with a prayer for quashing of the impugned summoning order and entire criminal proceeding of Complaint Case No. 4645 of 2018 (Abhimanyu Ahlawat vs. Amar Cheema & others), with a further prayer for staying further proceeding of above case till disposal of this Application. 3. Learned AGA, appearing for the State of U.P, has vehemently opposed this Application, under Section 482 of Cr.P.C. 4. 3. Learned AGA, appearing for the State of U.P, has vehemently opposed this Application, under Section 482 of Cr.P.C. 4. From very perusal of the of the complaint and the impugned summoning order, it is apparent that this was not a case regarding an embezzlement of capital of the Company, rather complainant, Abhimanyu Ahlawat, by his complaint as well as statement, recorded, under Section 200 of Cr.P.C., has said that the Company, in question, was constituted upon the instigation of Arjun Cheema, with three other Directors, in which complainant, was an authorised signatory, on behalf of other Directors of the Company and while the there occurred loss in the business of the Company, in the year 2011, the Company was wound-up, however, till then there was no loss, rather a capital was to be refunded back to the Uro Tiles Private Company Limited for having its payment back. There was no investment by other Directors, except investment of Rs. 27 Lakhs by the complainant and this payment, on being returned back by the Uro Tiles Private Company Limited, was to be refunded to the complainant. For completion of this winding up proceeding, Arjun Cheema and Amar Cheema were authorised and handed over documents, seal and password etc. They made promise of winding up of the Company, but it came to notice that the Company was not wound-up, rather it was kept on running till 2018, with fraudulent signature of the complainant. Then, effort was made for getting this fact known to those Companies, which were dealing with the Company, in question, under fraud. On demand of money being made, they threatened of sending the complainant to jail and demanded money for winding up of the Company. Meaning thereby, there was fraud and deception, thereby, delivery of property by fraudulent acts by those two persons, who have been summoned and this was on the basis of evidenced, recorded, under Sections 200 and 202 Cr.P.C. Magistrate, after appreciating facts and evidence, brought on record, has passed the impugned summoning order. 5. This Court, in exercise of inherent jurisdiction, under Section 482 of Cr.P.C., is not expected to appreciate factual aspect because the same is a question of trial before the Trial. 6. As per law propounded by the Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, (2010) 6 JT 588 SC : (2010) 6 SCALE 767 : 2010 Cr. This Court, in exercise of inherent jurisdiction, under Section 482 of Cr.P.C., is not expected to appreciate factual aspect because the same is a question of trial before the Trial. 6. As per law propounded by the Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, (2010) 6 JT 588 SC : (2010) 6 SCALE 767 : 2010 Cr. LJ 3844 "While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court". In another subsequent Hamida v. Rashid, (2008) 1 SCC 474 , Hon’ble Apex Court propounded that "Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice". In again another subsequent Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781 , the Apex Court has propounded "Inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself." While interpreting this jurisdiction of High Court Apex Court in Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296 has propounded "High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings". 7. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings". 7. Regarding prevention of abuse of process of Court, Apex Court in Dhanlakshmi v. R. Prasana Kumar, (1990) CriLJ 320 (DB) : AIR 1990 SC 494 has propounded "To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in State of Bihar v. Murad Ali Khan, (1989) CriLJ 1005 : AIR 1989 SC 1 , Apex Court propounded "In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not". 8. Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. 9. In view of what has been discussed above, there is no ground for interference in the proceeding, as prayed for by this Application, under Section 482 of Cr.P.C., thereby, this Application merits its dismissal and it stands dismissed, accordingly.