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2020 DIGILAW 1130 (ALL)

Rakesh Garg v. State of U. P.

2020-09-16

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. Heard learned counsel for the applicant and learned A.G.A. representing the State. Perused the records. 2. This application under Section 482 Cr.P.C. has been filed by applicant Rakesh Garg against State of U.P. and another, with prayer to quash order dated 28.2.2020 passed by Judicial Magistrate, Hawali, District Farrukhabad, in Complaint Case No. 132 of 2013 (old No. 390 of 2008), Mukhtyar Ahmad Taini Vs. Suresh Garg and others), u/s 323, 504, 506 I.P.C., P.S. Kotwali, District Farrukhabad. 3. Learned counsel for the applicant argued that the applicant is resident of Panipat, State of Haryana. He is under business transaction with complainant-O.P. No. 2, Mukhtar Ahmad Taini. A case u/s 406 I.P.C. was filed before a Court at Etawah. No such occurrence ever occurred nor it is probable that the applicant Rakesh Garg along with his son will come at Farrukhabad and will commit the offence punishable u/s 323, 504, 506 I.P.C. But under false implication this complaint was filed, wherein there is summoning, as above. The applicant came before this court in a proceeding u/s 482 No. 268 of 2009, Suresh Garg and another Vs. State of U.P. and another, and this court vide order dated 01.9.2017 gave an opportunity to the applicant to move discharge application before trial court. A discharge application u/s 245 Cr.P.C. was filed before the trial court with the contention made before this court in above proceeding u/s 482 Cr.P.C. as well as in the present proceeding, but the trial court without mentioning any reason and only writing contention of the applicant in its order, dismissed the above discharge application. It was an abuse of process of law. Not even the pin probability of plea of alibi of being in abroad in that period was taken into account by the trial court. Law laid down by Apex Court in Criminal Appeal No. 2114 of 2017, arising out of S.L.P. (Crl.) No. 8279 of 2016, Nitya Dharmananda @ K. Lenin & another Vs. Sri Gopal Sheelum Reddy also known as Nitya Bhaktananda and other, connected with Criminal Appeal No. 2115 of 2017, arising out of S.L.P. (Crl.) No. 1176 of 2017, State of Karnataka Vs. Sri Gopal Sheelum Reddy also known as Nitya Bhaktananda and other, connected with Criminal Appeal No. 2115 of 2017, arising out of S.L.P. (Crl.) No. 1176 of 2017, State of Karnataka Vs. Sri Gopal Sheelum Reddy also known as Nitya Bhaktananda, has been pressed by learned counsel for applicant with a contention that no doubt at the time of framing of charge evidence collected by prosecution be taken into consideration, but even if the fact, which is material enough to belie the case of prosecution, is being brought at the time of framing of charge, then that fact also be taken into consideration by the trial court. Hence this application with above prayer. 4. Learned A.G.A. has vehemently opposed the application. 5. From the very perusal of the impugned order, it is apparent that in a Complaint Case No. 390 of 2008 Magistrate examined complainant u/s 200 Cr.P.C. wherein it was specifically stated that Suresh Garg and Rakesh Garg were known to the complainant since 2006 and there had been business transaction in between. There was supply of goods with payment of same. Since 29.8.2006 to 21.5.2007 there was supply of goods worth Rs. 27-28 lacs and payment for the same were made then subsequently a supply for the value of Rs. 5,80,450/-was made, but it was not paid by them and when notice for demand was sent to the accused persons at their address of Haryana, it was not paid by them. This demand was persistently made through telephone and it was assured to be paid by them. Ultimately on 25.11.2007 the accused persons met with Mohd. Aslam Ansari and when money was demanded, they refused to make payment and ultimately Criminal Case was got lodged at Etawah. As a result of the same, when the complainant along with his brother Aslam was near N.A.K.P. College both of accused came there. They extended threat them with abuse. That is why a criminal case was lodged at Etawah. Subsequently both of the accused assaulted the complainant with threat of dire consequences. For this occurrence the complainant got himself medically examined at Dr. Lohiya Hospital and then reported to the police, but of no avail. Hence this complaint was filed. They extended threat them with abuse. That is why a criminal case was lodged at Etawah. Subsequently both of the accused assaulted the complainant with threat of dire consequences. For this occurrence the complainant got himself medically examined at Dr. Lohiya Hospital and then reported to the police, but of no avail. Hence this complaint was filed. This contention of complainant recorded u/s 200 Cr.P.C. was corroborated by statements of Babbu Hussain and Iliyas Ansari recorded u/s 202 Cr.P.C. On the basis of this evidence, accused persons were summoned for the offences punishable u/s 323, 504, 506 I.P.C. Against this order proceeding u/s 482 Cr.P.C. was filed by the applicants, wherein order, as above, was passed and in compliance of that order, discharge application u/s 245 Cr.P.C. was moved before trial court. In this application specific averment was there that the applicant was not aware of Mukhtar Ahmad Taini in para 2 of application u/s 245(2) Cr.P.C., whereas it has been argued that complainant and accused were on the business transaction and they were aware to each other. Meaning thereby the very acquaintance of the complainant has been denied in the discharge application. Till disposal of application u/s 245 Cr.P.C. no additional evidence was there on the basis of which charge is to be framed by the trial court. Merely on the basis of sufficiency of evidence of summoning, there is summoning. After appearance of accused evidence u/s 244 Cr.P.C. is to be recorded, which is to be given by complainant and there will be an opportunity of cross-examination of witnesses and after this exercise, stage of framing of charge or discharge comes in light. Hence the Magistrate was with no additional evidence till passing of impugned order. Hence this application was rejected and it was with reason and as per law laid down by Apex Court for framing of charge. In the case of Palwinder Singh Vs. Balwinder Singh and others; (2008) 14 Supreme Court Cases 504 Apex Court has specifically laid down that meticulous analysis of facts and evidence is not to be done at the time of framing of charges as it may lead prejudice against fair trial. Pre-trial acquittal is not expected. Rather the evidence is to be seen at the time of framing of charge. But in the instant case the stage of framing of charge is not there. Pre-trial acquittal is not expected. Rather the evidence is to be seen at the time of framing of charge. But in the instant case the stage of framing of charge is not there. Accordingly, there is no abuse of process of law. Hence this application merits dismissal. 6. Accordingly, application is dismissed. 7. However, in the interest of justice, it is provided that if the applicant appears and surrenders before the court below within thirty days from today and apply for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. 8. For a period of thirty days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant. 9. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.