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2019 DIGILAW 2734 (ALL)

Amitabh Kumar Das v. State of U. P.

2019-12-09

RAM KRISHNA GAUTAM

body2019
JUDGMENT : 1. The applicant Amitabh Kumar Das, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of the Court with prayer to quash the entire proceeding of Case No. 4026 of 2017, based on cahrge-sheet dated 16.8.2016, arising out of case crime No. 551 of 2017, for an offence under Sections 420, 406 IPC, P.S. Nai Mandi, District Muzaffar Nagar, pending in the curt of Special Chief Judicial Magistrate, Muzaffar Nagar. 2. Heard learned counsel for the applicant and learned A.G.A. for the State. 3. Learned counsel for the applicant argued that no ingredients of offence required to constitute offence punishable under Section 420 and 406 of IPC, were made out. Even then, charge-sheet has been filed whereas it was a transaction based on the basis of mutual understanding, by way of memorandum of understanding, wherein terms and conditions were mentioned. Subsequently, informant-complainant withdrew from above business by way of mutual settlement and due amount of Rs 52 lacs were paid by applicant. But under coercion amount was raised 1.24 crores and cheques were taken in blank for rest of amount and for this a case for offence punishable under Section 138 of N.I. Act has been filed and is pending whereas much before this alleged report as well as filing of complaint, the applicant started making payment back for the amount and he paid back Rs. 52 lacs. Hence, there was no mensrea or aim of deceit since the beginning of business or criminal breach of trust. Moreso, Apex Court in G. Sagar Suri and another Vs. State of U.P. and others, (2000) 2 SCC 636 and Sunil Kumar Vs. Excorts Yamaha Motors Ltd. and others, (1999) 8 SCC 468 , has propounded that once a complaint case has been filed for offence punishable under Section 138 of N.I. Act, subsequently, for the same transaction, if case is being filed for offences punishable under Sections 420, 406 I.P.C., then certainly, this is a misuse of process of law because it is to coerce for ensuring payment in a case under N.I. Act. Hence, High Court is well within jurisdiction to quash this proceeding. 4. Learned counsel for the opposite party No. 2 argued that it was a case wherein deceit was since the beginning. Amitabh Kumar Das entered in friendship with son of complainant-informant i.e. Devendra Kumar. Hence, High Court is well within jurisdiction to quash this proceeding. 4. Learned counsel for the opposite party No. 2 argued that it was a case wherein deceit was since the beginning. Amitabh Kumar Das entered in friendship with son of complainant-informant i.e. Devendra Kumar. He came Muzaffar Nagar, he showed his business plan with deceitful assurance for return under his persuasion, complainant, who is retired Professor and Member of U.P. Higher Education Commission and his son Devendra Kumar invested huge amount under trust of return of same by accused but he proved to be non performer of his promise. Then informant's son withdrew himself with a request for making his settlement clear. Applicant entered in settlement whereupon 1.24 crores liability existed but he made payment of Rs. 52 lacs only, for rest amount he has deposited 15 cheques and he made conversation for making payment by way of depositing the same as per his request. Cheques were deposited but dishonoured. This too, was conspiracy and deceitful act, for which subsequent offence punishable under Section 138 of N.I. Act was made out and complaint for same was filed and is still pending but the offence which was committed since the beginning by inducing for payment of such a huge amount under deceitful assurance punishable under Section 420 of IPC, was since the beginning of transaction and as money paid under the trust of its return, was not paid back deliberately with malice. Hence, it was criminal breach of trust punishable under Section 406 of IPC, for which a police report under Section 173 of Cr.P.C. has been filed and cognizance for it taken. There is judgment of Apex Court in 2012 LawSuit (SC) 236 Sangeetaben Mahendrabhai Patel Vs. State of Gujrat and another as well as a judgment in Criminal Appeal No. 255 of 2019 (Arising out of SLP (Crl.) No. 7513 of 2014) Sau. Kamal Sivaji Pokarnekar Vs. The State of Maharashra and others, wherein Apex Court has propounded that civil liability and offence punishable regarding it under Section 420 and 406 of I.P.C. may run concurrently beside being a proceeding pending. Kamal Sivaji Pokarnekar Vs. The State of Maharashra and others, wherein Apex Court has propounded that civil liability and offence punishable regarding it under Section 420 and 406 of I.P.C. may run concurrently beside being a proceeding pending. Hence, dishonour of cheque and this under conspiracy was there, for which specific offence of Section 138 of N.I. Act made out, for which cognizance have been taken and case is pending but the offence of deceit and cheating since the beginning of this transaction under fraudulent assurance for investing money and getting return in a business plan, which was deceitful since the beginning and thereby invested such huge amount and then after breach of trust under Section 420 and 406 of IPC, was offence, which was other than offence punishable under Section 138 of N.I. Act. Hence, both proceeding were for those two offences. Moreso, this Court in exercise of inherent power power under Section 482 of Cr.P.C., is not expected to make analytical analysis of evidence and fact of the case because the same is within the domain of trial Court and is question of trial, to be seen during trial. Hence, this proceeding be dismissed. 5. Learned AGA has vehemently opposed the above prayer. Having heard learned counsel for both sides and gone through the material placed on record, it is apparent that First Information Report of Case Crime No. 551 of 2017, for offence punishable under Sections 406 and 420 of I.P.C. was filed by Dr. Dharampal Singh against Amitabh Kumar Das. Subsequently, it became a business with no assurance, when Devendra Kumar along with and demanded back his money, which was said to be of 1.24 crores, then a cash of Rs. 52 lacs were paid back to Devendra Kumar and it was said that for remaining amount 15 cheques were delivered but those cheques were dishonoured, for which criminal case for offence punishable under Section 138 of N.I. Act, is pending. But, for the offence of deceit and cheating punishable under Section 420 of I.P.C. and criminal breach of trust under section 406 of I.P.C. is there. This investigation resulted in submission of charge-sheet, over which cognizance was taken by Magistrate concerned. For this Criminal case the accusation is of deceit since the beginning of transaction i.e. under fraudulent plan, this was acted upon by Amitabh Kumar Das and investigation has resulted in submission of charge-sheet. This investigation resulted in submission of charge-sheet, over which cognizance was taken by Magistrate concerned. For this Criminal case the accusation is of deceit since the beginning of transaction i.e. under fraudulent plan, this was acted upon by Amitabh Kumar Das and investigation has resulted in submission of charge-sheet. Payment of Rs. 52 lacs has been accepted by learned counsel for the applicant. Rest of amount is disputed but dues of Rs. 52 lacs were said to be there and this amount was paid since 2015 to 2017, whereas communication in between both sides, has been appended as a part of affidavit, from which it is apparent that rest of amount were also assured to be paid on deposit of cheque. Though, it is a question of fact to be seen and analysed by trial Court and this Court in exercise of inherent power power under Section 482 of Cr.P.C., is not expected to analyse analytically the facts and factual matrix of case because the same is to be seen by trial Court. At the stage of summoning or taking cognizance over a police report, Magistrate has gone through evidence collected by I.O. and on the basis of it, cognizance has been taken. Accused has been summoned for offence punishable under Sections 406 and 420 I.P.C. Those facts is not to be interfered by this Court in exercise of above inherent jurisdiction rather it is Magistrate to see through the course of trial. 6. This Court in exercise of inherent , as the same is the question before trial court. has held as under:- 7. 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". 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". 8. 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". 8. 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". 9. Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. The impugned order was well based on evidence and facts collected by Magistrate in its enquiry. There seems to be no misuse of process of law. Hence, this proceeding merits its dismissal. accordingly.