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Allahabad High Court · body

2020 DIGILAW 572 (ALL)

Tarun Agarwal v. State of U. P.

2020-02-20

AJIT KUMAR

body2020
JUDGMENT : Ajit Kumar, J. 1. Heard learned counsels for the parties and perused the record. 2. The present Application under section 482 of Code of Criminal Procedure, 1973 is directed against the order dated 26.8.2017, whereby, the applicant has been summoned by the Additional Civil Judge (Sr. Div.)/Additional Chief Judicial Magistrate, Court No. 1, Moradabad, under sections 384, 420, 467, 468, 471 IPC, rejecting the closure report submitted by the police in connection with Case Crime No. 499 of 2014. 3. The facts of the present case are that the first informant and the applicant had business relation in trading of shares in connection with a Firm namely M/s. Gupta Commodity Pvt. Ltd. which is registered as per the Rules of Security and Exchange Board of India (hereinafter to be referred as 'SEBI') Act, 1992. 4. It is on account of certain business disputes occurring in the year 2006 that led to the filing of the first information report in 2014 as Case Crime No. 499 of 2014. On thorough investigation being conducted by the police, it did not find any evidence credible enough in respect of the allegations made in the first information report regarding forgery in preparation of receipt against payment of the amount in question given to the Firm of opposite party No. 2 while applicant closed business with the said Firm and hence a closure report was submitted by the police on 1.6.2015 as bearing No. 164 of 2015. The opposite party No. 2 filed protest petition questioning the closure report and the Court under the impugned order found substance and directed summoning of the accused treating it to be a State case. 5. Learned Counsel for the applicant has strenuously argued that the controversy as sought to be raised in the year 2014 with regard to alleged payment of money while closing the business in the year 2006 is almost 8 years old and sufficiently demonstrates that not only the opposite party No. 2 has awakened from long slumber but as a counter case to the criminal prosecution pursued by the applicant against the opposite party No. 2 in connection with a first information report earlier registered as Case Crime No. 634 of 2007, under sections 406, 420, 467, 468, 471, 452, 504, 506 IPC. 6. 6. It is contended that there was a dispute with regard to balance sheet of the profit & loss account maintained by the opposite party No. 2 and as a matter of fact he was mislead with regard to his registration with the firm of opposite party No. 2 namely M/s. Gupta Com-modify Pvt. Ltd. (hereinafter to be referred as 'complainant Company') prior to 23.8.2005 and the grievance of the applicant in the said case as a complainant was that though no trade was done by the Company of opposite party No. 2 and yet forged receipts were prepared and profit & loss account was maintained fraudulently to the prejudice of the present applicant. In the said case though the final report was submitted by the police on 8.10.2007 but on a protest petition filed by the applicant, the opposite party No. 2, as one of the accused persons, was summoned vide order dated 9.6.2008 passed by the Chief Judicial Magistrate. Against the said order of summoning, the opposite party No. 2 had approached this Court by filing application under section 482 No. 13742 of 2008 but the same was dismissed vide judgment and order dated 28.3.2014. The operative portion of the order dated 28.3.2014 is reproduced hereunder: "Considering the facts and circumstance of the case, submission made by the learned Counsel for the applicants, learned A.G.A. for the State of U.P. and the learned Counsel for O.P. No. 2 and perusing the record it reveals that there was a business transaction in between the applicants and OP. No. 2. With regard to business transaction, arbitration proceedings have already been commenced between the parties, FIR has been lodged by O.P. No. 2 in which after completing the investigation final report dated 8.10.2007 was submitted, the same was protested by O.P. No. 2 by way of filing the protest petition supported by his affidavit and two other documents. The learned Chief Judicial Magistrate, J.P. Nagar has rejected the final report by allowing the protest petition and summoned the applicants and others co-accused persons to face the trial for the offence punishable under sections 406, 420, 467, 468, 471, 452, 504 and 506 I.P.C. by passing the impugned order dated 8.5.2008. The learned Chief Judicial Magistrate, J.P. Nagar has rejected the final report by allowing the protest petition and summoned the applicants and others co-accused persons to face the trial for the offence punishable under sections 406, 420, 467, 468, 471, 452, 504 and 506 I.P.C. by passing the impugned order dated 8.5.2008. The impugned order dated 8.5.2008 is a well reasoned order in which all the facts and circumstance have been properly mentioned but the learned Chief Judicial Magistrate, J.P. Nagar has taken cognizance by rejecting the final report allowing the protest petition only on the basis of material collected by the I.O. during investigation which was made the part of the case diary. The learned Chief Judicial Magistrate, J.P. Nagar has not considered any extraneous, material for the purpose of taking cognizance though the cognizance has been taken on the basis of the case diary, the learned Chief Judicial Magistrate, has rightly observed that the proceedings of the case shall be commenced as of the State case. The learned Chief Judicial Magistrate, J.P. Nagar has not adopted a mixed procedure for taking cognizance. The allegation made in the FIR and the material collected by the I.O. is prima facie disclosing the commission of the offence. According to the allegation made part of the offence was committed in the territorial jurisdiction of the district J.P. Nagar for summoning the applicants and other accused persons. The impugned order dated 8.5.2008 is not suffering from any illegality or irregularity. In pursuance of the order dated 8.5.2008, criminal proceedings pending against the applicants in case crime No. 1240 of 2007 are also not suffering from any illegality, therefore, the prayer for quashing the order dated 8.5.2008 passed by the learned Chief Judicial Magistrate, J.P. Nagar summoning the applicants in criminal case No. 1240 of 2007 and the proceedings of case No. 1240 of 2007 under sections 406, 420, 467, 468, 471, 452, 504, 506, pending in the Court of Chief Judicial Magistrate, is refused. The interim order dated 29.5.2008 in criminal application No. 13742 of 2008 is hereby vacated. Accordingly both the applications are dismissed." 7. After the said order was passed, the opposite party No. 2 moved an application for discharge under section 239 Cr.P.C. but the discharge application came to be dismissed vide order dated 11.7.2014 by the Additional Chief Judicial Magistrate, Amroha. Accordingly both the applications are dismissed." 7. After the said order was passed, the opposite party No. 2 moved an application for discharge under section 239 Cr.P.C. but the discharge application came to be dismissed vide order dated 11.7.2014 by the Additional Chief Judicial Magistrate, Amroha. The said order was challenged in revision being Criminal Revision No. 221 of 2014 by the opposite party No. 2 and the revision petition came to be allowed on 27.5.2015 by the Sessions Judge, Jyotiba Phule Nagar and against which criminal revision is pending before this Court, numbered as Criminal Revision No. 2840 of 2015. It is argued that as a counter case, to the summoning order, the first information report was got lodged on 9.7.2014 in respect of the same incident of 31.5.2006 with an intention to turn the table to the other side and to pressurize the applicant not to pursue the matter in connection with the above criminal case against opposite party No. 2. 8. The argument, therefore, is that the entire allegations are not only the malicious but with an ulterior motive to pressurize the applicant to withdraw the criminal case and there is virtually not evidence to sustain the criminal prosecution. 9. Learned Counsel for opposite party No. 2 has strenuously argued that there is nothing to demonstrate that the prosecution is in any manner malicious one or with ulterior motive and that there are sufficient evidence available on record to prima facie establish the charge. 10. The learned Additional Government Advocate would argue that it is always open for the applicant to apply for discharge under section 239 Cr.P.C. and as he has been merely summoned, he would have no reason to apprehend that he cannot be discharged from the case. It is further argued by learned Additional Government Advocate that in exercise of power under section 482 Cr.P.C. this Court will be reluctant in interfering with the criminal law proceedings even before the stage of framing of charges. 11. Undisputed facts that emerge are that the present applicant had a business partnership with opposite party No. 2 in share trading. It is further argued by learned Additional Government Advocate that in exercise of power under section 482 Cr.P.C. this Court will be reluctant in interfering with the criminal law proceedings even before the stage of framing of charges. 11. Undisputed facts that emerge are that the present applicant had a business partnership with opposite party No. 2 in share trading. The firm of the applicant was M/s. R.K. Investments & Consultants, whereas, the opposite party No. 2 had the firm namely M/s. Gupta Commodity Pvt. Ltd. The business relations went strained on account of loss in share trading and ultimately led to dispute resulting in the demand of return of the money. The opposite party No. 2, according to the applicant defrauded him and so the FIR was lodged against the opposite party No. 2. In the said case, the defense taken by the opposite party No. 2 was that it was a simple dispute of transaction of money and so compromise reached between the parties on 31.3.2006 and full and final payment was made to the present applicant. However, according to opposite party No. 2 the present applicant made complaint with Security and Exchange Board of India (SEBI) but the same was dismissed on 4.1.2007. It was also the stand of the opposite party No. 2 that the present applicant applied for refund of Rs.69,50,000/- with National Commodity Derivatives Exchange Limited (NCDEX) on 31.5.2006 but the same was rejected on 29.5.2007. Thus there was hardly any stand taken by the opposite party No. 2 of the present applicant approaching him on 31.5.2006. In the allegations made in the FIR by the opposite party No. 2 has admitted earlier institution of the criminal case by the present applicant. Thus, while lodging the FIR, resulting in the present criminal prosecution, the applicant was conscious of his stand as defense in earlier case instituted against him there he never took any stand of demand and alleged incident of threatening at the end of present applicant, as alleged in the present case. 12. Thus, while lodging the FIR, resulting in the present criminal prosecution, the applicant was conscious of his stand as defense in earlier case instituted against him there he never took any stand of demand and alleged incident of threatening at the end of present applicant, as alleged in the present case. 12. The date and amount as mentioned in the protest petition and the summoning order in question before this Court is also mentioned in the summoning order, on a protest petition filed by the present applicant against the opposite party No. 2 dated 8.5.2008 and therefore, it is very much clear that the dispute is with regard to return of the money and entry shown in the Ledger in the profit & loss account by way of trading in shares. 13. From the perusal of the entire summoning order dated 8.5.2018 and the order of this Court dated 28.3.2014 it clearly transpires that the present criminal prosecution has been launched as a counter case to the ongoing case earlier instituted by the present applicant and therefore, I find substance in the argument of learned Counsel for the applicant that only motive behind the present criminal prosecution has been to turn the table to the other side as the amount in issue is of Rs.69 lacs and odd of which refund was sought and finally refused by opposite party No. 2 on 31.5.2006 and has been taken as loss in a plea of forgery by the present applicant in the criminal case instituted by him against the opposite party No. 2. In the said case, the discharge application of the opposite party No. 2 was rejected but in revision the opposite party No. 2 has been discharged on 27.5.2015 and that order is now sub-judice before this Court in a pending criminal revision bearing No. 2840 of 2015. 14. In the said case, the discharge application of the opposite party No. 2 was rejected but in revision the opposite party No. 2 has been discharged on 27.5.2015 and that order is now sub-judice before this Court in a pending criminal revision bearing No. 2840 of 2015. 14. The argument advanced by learned Counsel for the applicant therefore, carries substance that had it been a case of genuine grievance of opposite party No. 2, he would have taken a prompt action in lodging the first information report or would have instituted a complaint case but it was not so done and it is only when the protest petition was filed by the applicant in the case of the final report submitted by the police in connection with first information report in which the opposite party No. 2 got summoned and his application under section 482 Cr.P.C. came to be dismissed on 28.3.2014 and interim order dated 29.5.2008 got vacated that the first information report was lodged by the O.P. for the first time on 9.7.2014. 15. In the opinion of the Court, the entire allegations are only with an ulterior motive and there is no substance much less a substantial one to hold as a credible evidence to sustain the summoning order. Even otherwise, I find that in the summoning order, the learned Magistrate has simply referred to the allegations in the protest petition and has not discussed anything as to what were the evidence on record which escaped the eyes of the Investigating Officer while submitting the closure report. The summoning order is virtually without any application of judicial mind. Even otherwise, I find that the matter in issue is not supported by any evidence on record to initiate the criminal prosecution. Entire allegations are only as an afterthought to the dismissal of the application of the opposite party No. 2 under section 482 Cr.P.C. against the summoning order in the case initiated by the present applicant. Clause 7 of para 102 of the judgment of Apex Court in the case of State of Haryana v. Bhajan Lal, 1991 (28) ACC 111 (SC), is fully applicable to the facts relating to chain of events and circumstances of the present case. Para 102 of the judgment (supra) reads as under: "102. Clause 7 of para 102 of the judgment of Apex Court in the case of State of Haryana v. Bhajan Lal, 1991 (28) ACC 111 (SC), is fully applicable to the facts relating to chain of events and circumstances of the present case. Para 102 of the judgment (supra) reads as under: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 16. The Court is conscious of the caution sounded by the Apex Court in para 103 of the said judgment (supra) while exercising power under section 482 of Code of Criminal Procedure. Para 103 of the judgment (supra) reads as under: "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice." 17. I consider the case in hand to be most appropriate a case to interfere and quash the proceedings. There could be no better case than the one in hand where first information report is lodged in respect of same chain of events by a person facing criminal prosecution and that too more than eight years after the incident and the offence complained of was not even set up as defence to plead innocence in the said case. Thus, the statement of facts alleged in the present first information report undoubtedly turn out to be one as an afterthought. As a matter of fact, no deep scrutiny is required in the matter to conclude as above. Thus, the statement of facts alleged in the present first information report undoubtedly turn out to be one as an afterthought. As a matter of fact, no deep scrutiny is required in the matter to conclude as above. The documents namely memo of revision of the opposite party No. 2 in said earlier case in which he has been facing criminal prosecution (contents whereof have been referred to in the judgment of discharge in the said earlier case) do not corroborate the averments of the protest petition filed against final report and on which impugned summoning order has been passed. The natural corollary is that no such incident as alleged in the first information report of 2014 ever took place on the relevant date i.e. 31.5.2006 and therefore, such conduct amounts to wrecking vengeance on the accused. 18. In my above view, I have the support of other judgment of Apex Court in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 : 1998 (36) ACC 20 (SC), wherein the Court vide paragraph Nos. 28 and 30 held thus: "28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course, it is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 30. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. 30. It is no comfortable thought for the appellants to be told that they could appear before the Court which 'is at a far off place in the Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them it is certainly one of those cases where there is an abuse of the process of the law and the Courts and the High Court should not have shied away in exercising its jurisdiction. Provisions of Articles 226 and 227 of the Constitution and section 482 of the Code are devised to advance justice and not to frustrate it. In our view High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it. 19. In view of the above discussion and authorities referred to herein above, the summoning order dated 26.8.2017 passed by the Additional Civil Judge (Sr. Div.)/Additional Chief Judicial Magistrate, Court No. 1, Moradabad in Criminal Case No. 13 of 2017, arising out of Case Crime No. 499 of 2014, under sections 384, 420, 467, 468, 471 IPC, P.S. Civil Lines, District Moradabad and the entire consequential proceedings are hereby quashed. 20. Application is allowed.