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2019 DIGILAW 2592 (ALL)

Surjeet Singh v. State of U. P.

2019-11-19

RAM KRISHNA GAUTAM

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JUDGMENT : 1. This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicant, Surjeet Singh, against State of U.P. and Harjeet Singh ( Raja Sethi), with a prayer for setting aside entire proceeding, including summoning order, dated 6.5.2019, passed by the Court of Additional Civil Judge (Senior Division)/Additional Chief Judicial Magistrate, Bareily, in Complaint No. 499 of 2019 (Case No. 1259 of 2019), under Section 420 of Indian Penal Code (IPC), Harjeet Singh Sethi vs. Surjeet Singh, Police Station- Subhash Nagar, District Bareilly. 2. Learned counsel for applicants argued that accused-applicant is innocent. He has been summoned for offence, punishable, under Section 420 of IPC, whereas, no offence was made out against him. Complaint was filed with accusation that applicant showed himself as owner of a property for which an agreement to sale was entered into, for a consideration of Rs.85 lacs, and an advance money of Rs.2 lacs was paid on 20.1.2013, then after, process for sanction of loan from Bank was taken by the complainant and when documents of property was asked for Surjeet Singh Bagga has disclosed that the property in question is not in his name, rather, he is a commission agent. This was protested by the complainant, but Surjeet Singh Bagga assured about transaction and he supplied photostat copies of documents pertaining to the property in question by which processing for Bank loan was continued. Subsequently, it could not be completed because of some dispute, hence, advance of Rs.2 lacs were returned back to the complainant. Thus, there is no fraud or deceit with complainant, but summoning order is there, as such, this was misuse of process of law, hence, this application, with above prayer. 3. Learned AGA, representing State of U.P., has vehemently opposed this Application. 4. Heard learned counsel for both sides and gone through materials on record. 5. From very perusal of complaint, filed by Harjeet Singh (Raja Sethi), against Surjeet Singh Bagga, for offence, punishable, under Sections 419, 420, 406 of IPC, on 22.2.2018, with accusation that Surjeet Singh Bagga disclosed himself to be owner of a building 'Dashmesh Plaza' and showed his inclination to transfer this building, it is apparent that complainant, believing above statement of Surjeet Singh Bagga, did negotiations for purchase of above building for a value of Rs.85 lacs, where for, Rs.2 lacs, were paid on 201.2013, as advance. When during the course of process for sanction of loan, documents pertaining to building in question were required, then, Surjeet Singh Bagga disclosed that he was not owner of the above property, rather, he was a commission Agent. This was not disclosed to the complainant earlier. Upon this deceitful statement, with regard to ownership of the building, agreement to sale and payment of advance of Rs.2 lacs was made by the complainant. This fact was said by the complainant in his statement, recorded, under Section 200 of Cr.P.C. and his witnesses, under Section 202 of Cr.P.C. When protest was raised, then, this amount of advance was paid back to the complainant on 24.8.2017, i.e., after six years, which was received by Surjeet Singh Bagga, under deceit. Hence, on factual aspect present, ingredients for offence, punishable, under Section 420 of IPC, was apparently present on record, falling within the jurisdiction of Magistrate to pass summoning order, and as such, on the basis of it summoning order was passed by the Magistrate. Analysis of factual evidence is not to be made, by this Court, in exercise of inherent power, vested under Section 482 of Code of Criminal Procedure. 6. Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767 : 2010 Cr. LJ 3844 has propounded that "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. Regarding prevention of abuse of process of Court, Apex Court in Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 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) Cr LJ 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, this proceeding, under Section 482 of Cr.P.C., merits dismissal and stands dismissed accordingly.