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Allahabad High Court · body

2020 DIGILAW 729 (ALL)

Akhil Sharda v. State Of U. P.

2020-03-06

RAJEEV SINGH

body2020
JUDGMENT : 1. Heard Shri L.P. Mishra, learned counsel assisted by Shri Baljeet Singh appearing for the applicants, Shri V.K. Shahi, learned Additional Advocate General assisted by Shri Anurag Verma, learned A.G.A. for the State and Shri Prashant Chandra, learned Senior Counsel assisted by Ms. Mahima Pahwa appearing for the complainant-respondent no. 2. 2. This application under Section 482 Cr.P.C. has been filed seeking the following main relief’s: “I. set aside the impugned summoning order dated 13.02.2019 passed in Criminal Case No. 5694/2019, Case Crime No. 0260/2018, under Section 406, 420, 467, 468, 471, 120-B I.P.C., Police Station-Husainganj, district Lucknow. II. set aside the impugned charge sheet dated 10.02.2019, filed by the Investigating Officer in Case Crime No. 0260/2018, under Section 406, 420, 467, 468, 471, 120-B I.P.C., Police Station-Husainganj, District Lucknow. III. set aside the entire proceedings of the Case Crime No. 0260/2018, under Section 406, 420, 467, 468, 471, 120-B I.P.C., Police Station-Husainganj, District Lucknow.” 3. Shri L.P. Mishra, learned counsel appearing for the applicants submitted that applicant no. 4, i.e., M/s. United Breweries Ltd. (hereinafter referred to as the ‘Company’), which is a registered company engaged in manufacture and sale of Beer, received a demand order on 7th September, 2018 at 7.56 p.m. through e-mail by the Manager of the licensee-Ashok Jaiswal, on which, the Company directed its transporter, namely, M/s. Sical Logistics Ltd. to arrange vehicles to deliver the goods from its go-down located at Ghaziabad to the licensee at Lucknow. 4. M/s. Sical Logistics Ltd. has a contract for arrangement of trucks for transportation services with New Fatehpur Kolkata Transport Company, which, in turn, hires several trucks from open market. In the aforesaid transaction, New Fatehpur Kolkata Transport company had hired truck nos. UP32 HN 3209 and UP32 FN 8048 for delivery of consignment of respondent no. 2 to Lucknow. In the course of process, M/s. Sical Logistics Ltd. issued BT/consignment note dated 11 September, 2018 for delivering the Beer to the consignee, namely, Ashok Kumar Jaiswal, Station Road, Lucknow. After arrangement of the trucks by the transporter, transport permit-F.L. 36 was taken from Excise Department on 11.09.2018 for supply of the Beer by 13th September, 2018. Consignment of Beer was dispatched for delivery to the licensee at Lucknow on 11.09.2018 by truck nos. UP32 HN 3209 and UP32 FN 8048 after payment of excise duty, in advance. After arrangement of the trucks by the transporter, transport permit-F.L. 36 was taken from Excise Department on 11.09.2018 for supply of the Beer by 13th September, 2018. Consignment of Beer was dispatched for delivery to the licensee at Lucknow on 11.09.2018 by truck nos. UP32 HN 3209 and UP32 FN 8048 after payment of excise duty, in advance. It is, thus, submitted by learned counsel for the applicants that the Company consigned the entire goods/Beer in respect of the demand order dated 7th September, 2018 through Company’s registered transporter by the aforesaid trucks, which were having GPS systems as mandated by Excise department’s Track and Trace Policy. 5. He further submitted that one QTS Solutions Pvt. Ltd. was the contractor, authorised by the Excise department for tracking the location of the trucks and both the trucks were in contact of the said Agency through GPS upto the outer limit of city of Lucknow. The GPS device of both the trucks lost contact with GPS tracker Agency on 13th September, 2018 after 11.41 p.m., on which, QTS Solutions Pvt. Ltd. sent a message through e-mail on 14.09.2018 at 4.15 p.m. to Mr. Dharam Chand, who was working as Depot In-charge under the Company, who, in turn, informed to the two officials of Company as well as the transporters M/s. Sical Logistics Ltd. about the lost of the trucks. Learned counsel for the applicants submited that QTS Solutions Pvt. Ltd. and M/s. Sical Logistics Ltd. were instructed by the Company to make serious efforts for tracing the trucks. The officers of the Company also inquired about the location of the truck from respondent no. 2 through telephone forthwith, but respondent no. 2 informed that the trucks had not yet come at his place. Thereafter, the Company apprised the said fact to the Excise department, on which, Officer In-charge, District Excise Office vide letter dated 14th September, 2018 directed the Company to file F.I.R. 6. In pursuance to the aforesaid incident, Mukesh Kumar, Managar, M/s. Sical Logistics Ltd. lodged F.I.R. No. 0390 of 2018 on 16th September, 2018 under Sections 420, 406 I.P.C., P.S. Badalpur, District Gautam Budh Nagar with the allegation that on 11th September, 2018, two vehicles, one of which was bearing no. In pursuance to the aforesaid incident, Mukesh Kumar, Managar, M/s. Sical Logistics Ltd. lodged F.I.R. No. 0390 of 2018 on 16th September, 2018 under Sections 420, 406 I.P.C., P.S. Badalpur, District Gautam Budh Nagar with the allegation that on 11th September, 2018, two vehicles, one of which was bearing no. UP32 HN 3209 (driver-Mukesh Kumar s/o Moti Lal r/o Village and Post Khursaina, District Etawah and owner-Harjeet Kumar Rawat s/o Rampal Rawat r/o Sewai Baruna, U.P. Lucknow, mobile no. 7753995356) and second vehicle was bearing UP32 FN 8048 (driver-Shanu s/o Bhagwan Deen, r/o Mohalla Masjidganj, Shahjahanpur, mobile no. 8979887803 and owner-Subhash, mobile no. 7753995355 r/o Sewai Baruna Nagram road, Lucknow), were checked out from the factory premises carrying 1180 cases of Beer having LR No. 248000524, invoice value Rs.35,39,405/-and L.R. No. 248000523, invoice value Rs.39,23,630/-respectively. It is further alleged that on 13th September, 2018, at about 16.40 hrs., when the transporter, namely, Happy Singh Arora from his mobile no. 8750711313 talked to driver Mukesh on his mobile no. 6399156672, then he was informed that vehicles were standing near Junabganj, Lucknow at Chauhan Dhaba due to “no entry”. Thereafter, they could not contact with the drivers and the vehicles along with goods were vanished. 7. Shri Mishra submitted that the incident was also reported to respondent no. 2. Thereafter, Company through e-mail dated 21st September, 2018 requested the licensee for sending fresh demand to re-supply of the Beer against the order dated 07.09.2018, the consent of which was given by the licensee to the Company by e-mail on 22.09.2018. However, by the same letter, licensee also informed the Company that criminal proceedings have already been initiated in police Station Husainganj, Lucknow with regard to non-supply of Beer and civil proceedings are to be initiated for the loss suffered. However, by the same letter, licensee also informed the Company that criminal proceedings have already been initiated in police Station Husainganj, Lucknow with regard to non-supply of Beer and civil proceedings are to be initiated for the loss suffered. Learned counsel for the applicants has submitted that after inquiry, it came into the notice of the applicants that F.I.R. No. 260 of 2018 under Section 406 I.P.C., P.S. Husainganj, District Lucknow was lodged on 16.09.2018 against the Company and the applicants herein, namely, Akhil Sharda, Arvind Padhi and Himanshu Tiwari, in which after conducting due investigation, the Investigating Officer found no incriminating material against the applicants, as such, he prepared final report dated 13th October, 2018 with the finding that the goods were supplied by the Company, but the same were not reached to the destination, but Company resupplied the goods, thus, no offence is made out. 8. 8. Relevant part of the findings made by the Investigating Officer is being reproduced as under: ^^Jheku th fuosnu gS fd oknh lathr tk;loky mijksDr dh rgjhjh lwpuk ij fnukad 16-09-2018 dks Fkkuk&gktk ij eq0v0la0&260@18 /kkjk&406 Hkk0na0fo0 cuke vf[ky 'kkjnk vkfn rhu uQj mijksDr ds iathd`r gqvk ftldh foospuk eq> m0fu0 }kjk lEikfnr dh x;h nkSjku foospuk c;ku oknh eqdnek] fujh{k.k ?kVukLFky] c;kuukr xokgku] ls vfHk;ksx ds tqeZ /kkjk 420 Hkk0na0fo0 dh c<+ksRrjh dh x;h rekeh foospuk ls ik;k x;k fd oknh eqdnek }kjk rhu Vªd ch;j dk vkMZj fn;k x;k dEiuh }kjk vkMZj fd;s x;s eky dks le; ls Hkstk x;k ijUrq okgu pkydksa }kjk chp es gh eky dks /kks[kk/kM+h djds gM+i fy;k x;k ftlds lEcU/k esa Fkkuk cknyiqj ftyk xkSrecq) uxj es eq0v0la0&390@18 /kkjk&420] 406 Hkk0na0fo0 vfHk;ksx iathd`r djk;k x;k oknh eqdnek }kjk fn;s x;s vkMZj dh iwfrZ oknh eqdnek dks dj nh x;h gSA ftldh iqf"V ftyk vkcdkjh vf/kdkjh y[kuÅ }kjk fnukad 27- 09-18 dks dh x;h gSA foospuk es ik;k x;k oknh eqdnek }kjk fd;s x;s eky vkMZj le; ls dEiuh }kjk Hkstk x;k ijUrq chp es gh Vªd pkydks }kjk gsjkQsjh djds eky gM+i dj fy;k x;k ftlds lEcU/k es Fkkuk cknyiqj xkSrecq) uxj es vfHk;ksx iathd`r gksus ds dkj.k oknh eqdnek }kjk fn;s x;s vkMZj dh iwfrZ ugh gks ldh FkhA tks iwfrZ dj nh x;hA QyLo:i vfHk;ksx es izfri{khx.kks }kjk /kkjk&420] 406 Hkk0na0fo0 dk xBu gksuk u ik;s tkus ds dkj.k tfj;s vafre fjiksVZ foospuk lekIr dh tkrh gS fuosnu gS fd rF;ksa ,oa ifjfLFkfr;ksa dks n`f"Vxr vafre fjiksVZ dks Lohd`r djus dh d`ik djsaA** 9. Learned counsel for the applicants further submitted that as per the provisions of the Excise Laws, the supplier/Company, is required to maintain lease of orders received in seriatim and the concerned Excise Officer verifies the lease of orders and credit of amount in the bank account of supplier/Company. Thereafter, the Company is required to arrange the trucks within 48 hours through its transporters for transportation of the Beer. Details of the trucks and drivers are also required to be provided to the concerned Excise Officers at the time of taking of F.L. 36 for transporting the Beer. The details of the trucks, drivers and the route for transportation of Beer are to be mentioned in F.L. 36. Details of the trucks and drivers are also required to be provided to the concerned Excise Officers at the time of taking of F.L. 36 for transporting the Beer. The details of the trucks, drivers and the route for transportation of Beer are to be mentioned in F.L. 36. Learned counsel for the applicants also submitted that after consent of the licensee on 22nd September, 2018, fresh F.L. 36 was taken from the official website of the Excise Department on 22.09.2018 itself and the Beer was also sent on the same day against the order dated 07.09.2018 through the transporter of the Company without taking any extra cost from respondent no. 2. Thereafter, goods were delivered at the location of the licensee at Lucknow on 24.09.2018, which was accepted by the licensee. He also submitted that since the Company supplied the goods to the informant, therefore, no offence under Sections 420, 406 I.P.C. can be said to be made out. He also submitted that, however, even after receipt of the goods, since the acknowledgement was not given by the licensee, the Company contacted Excise department, on account of which, an Excise Inspector was deputed to verify the delivery of the Beer. The concerned Excise Officer inspected the location of licensee and submitted his report dated 27.09.2018 that Beer was duly received by the licensee at his premises against the order dated 07.09.2018. 10. Learned counsel for the applicants also submitted that in pursuance of the first demand order dated 7th September, 2018, entire goods were resupplied to respondent no. 2 at his location on 24.09.2018 and the delay, which caused in delivery, was not in the hands of the applicants. 11. He further submitted that the licensee had also placed another order through e-mail on 11.09.2018 at 8.30 p.m. for delivery of 1880 cases of Beer at Varansi. Since the vehicles for transportation of Beer could not be arranged, in the meantime, the licensee on 15th September, 2018 modified its original order dated 11September, 2018 through e-mail instructing that the ordered Beer be delivered at Lucknow instead of Varansi. After receipt of the revised order dated 15.09.2018 with the changed location, F.L. 36 was taken on 17.09.2018 and on the same day, consignment of Beer was dispatched after payment of excise duty through transporter of the Company, namely, M/s. Sical Logistics Ltd. by truck no. After receipt of the revised order dated 15.09.2018 with the changed location, F.L. 36 was taken on 17.09.2018 and on the same day, consignment of Beer was dispatched after payment of excise duty through transporter of the Company, namely, M/s. Sical Logistics Ltd. by truck no. UP 81 BT 5285 from Aligarh to Lucknow and the consignment of Beer was received by the licensee on 19.09.2018. 12. Submission of Shri L.P. Mishra is that similarly in pursuance of the indent/order dated 7th September, 2018, after taking the transport permit F.L. 36 on 11th September, 2018, the consignment was dispatched on the same day for delivery to the licensee through truck nos. UP32 HN 3209 and UP32 FN 8048, but both the trucks lost communication with the GPS Tracker agency on 13th September, 2018, just 1 and 1/2 km. away from the Kanpur Road, Junabganj, Lucknow, U.P., 226401. However, the entire goods were supplied to respondent no. 2 at his location on 24.09.2018, without any extra cost. Even then, respondent no. 2 pressed F.I.R. bearing Case Crime No. 260 of 2018 (supra) under Section 406 I.P.C., P.S. Husainganj, District Lucknow., in which, Investigating Officer, after recording the statement of the informant and inspecting the site, prepared final report dated 13th October, 2018 (Annexure 12) with the observation that the goods were supplied by the Company, but the same were not reached to the destination, as a result, re-supply of the goods was made. 13. After filing of the said final report, Ashok Kumar Jaiswal, licensee of F.L. 2B moved an application (undated) before the Inspector General of Police, Lucknow and requested that the final report dated 13.10.2018 may be rejected as the officers of the Company are habitual in committing such types of crime. In pursuance to the said application, final report dated 13.10.2018 was rejected by Additional Superintendent of Police (Crime), Lucknow and the matter was transferred for reinvestigation to the Crime Branch. The second Investigating Officer prepared the impugned charge sheet dated 10th February, 2019, however, there is no incriminating evidence for making out the alleged offence. 14. In pursuance to the said application, final report dated 13.10.2018 was rejected by Additional Superintendent of Police (Crime), Lucknow and the matter was transferred for reinvestigation to the Crime Branch. The second Investigating Officer prepared the impugned charge sheet dated 10th February, 2019, however, there is no incriminating evidence for making out the alleged offence. 14. Shri Mishra submitted that, as a matter of fact, the licensee was forcing for rebate and the second Investigating Officer was used as a tool for the same, as vide letter dated 26th December, 2018, Investigating Officer asked to the Company that why the rebate amounting to Rs.2,26,73,750/-was not paid for the period 01.04.2018 to 30.09.2018 to the firm of licensee-Ashok Jaiswal, M/s. Beehive Alcoveb Ltd. In reply to the same, the Company vide letter dated 15th January, 2019 categorically stated that the Company had not offered any rebate to the complainant during the period 01.04.2018 to 30.09.2018, therefore, the claim of rebate for the said period aggregating to Rs.2,26,73,750/-made by the complainant, is unfounded. Learned counsel for the applicants also submitted that the Company also clarified in the said letter that during the inspection of depot of the Company at NOIDA made by the Investigating Officer on 26th December, 2018 and Sales Office at Delhi, all the statement of account of the complainant maintained by the Company was also shown. In the said letter, it was further stated that all the transactions are managed and recorded in accordance with the Excise Laws under the supervision of Excise officials. He further submitted that on 25.01.2019, the Investigating Officer wrote another letter to the Company stating that Beehive Alcoveb Ltd., i.e., licensee of F.L. 2B, namely, Ashok Kumar Jaiswal lodged F.I.R. No. 0260 of 2018 against the applicants alleging that the rebate is not being given to the complainant, which was being provided prior to 1st April, 2018, therefore, asked the Company to give details of all the licensees for the period of 2015-16, 2016-17 and 2017-18 with the explanation that as to how much rebate has been given to other licensees. Learned counsel for the applicants submitted that the Investigating Officer Mr. Learned counsel for the applicants submitted that the Investigating Officer Mr. Jai Prakash Yadav was continuously making pressure for giving the aforesaid rebate to the complainant, as he again wrote a letter dated 31st January, 2019 and asked that why the rebate in the account of complainant is not being credited for the period 1st April, 2018 to 30th September, 2018. Reply dated 03.02.2019 to the said letter was given by the officers of the Company stating that there is no agreement between the Company and complainant for sharing the profit of trade and no any rebate amount is payable to the complainant during the aforesaid period. 15. He further submitted that merely on the basis of presumption, impugned charge sheet has been prepared on 10th February, 2019 with the finding that huge loss of excise duty was found, as also forged documents were prepared by the applicants and the goods were deliberately shown missing, and as per the trade practice, rebate amount was to be credited in the account of complainant and by not doing so, the licensee was also cheated by the applicants. Learned counsel for the applicants submitted that the Company suffered a lot as its goods were found missing, but re-supply was made without any cost. He vehemently submitted that there is no evidence of criminal breach of trust, cheating or forgery on the part of the applicants. He also submitted that the dispute between the Company and complainant in relation to the rebate, is of civil nature, therefore, criminal prosecution is not permissible. 16. In support of his argument, Shri Mishra relied on the decision of the Hon'ble Apex Court in the cases of Vinod Natesan Vs. State of Kerala & Ors., (2019) 2 SCC 401 , Anand Kumar Mohatta & Anr. Vs. State (Govt. of NCT of Delhi) Department of Home & Anr., 2019 (1) JIC 1 (SC), Prof. R K Vijayasarathy & Anr. Vs. Sudha Seetharam & Anr. (Criminal Appeal No. 238 of 2019), Pooja Ravinder Devidasani Vs. State of Maharashtra & Ors., 2015 (1) JIC 398 (SC), Lalit Kargeti Vs. State of U.P. & Ors., 2018 (2) JIC 427 (All), Surya Pratap Singh Vs. State of U.P. & Anr., 2016 (1) JIC 659 (All) and Nitin Jain & Ors. Vs. State of U.P. & Anr., 2015 (1) JIC 424 (All). 17. State of Maharashtra & Ors., 2015 (1) JIC 398 (SC), Lalit Kargeti Vs. State of U.P. & Ors., 2018 (2) JIC 427 (All), Surya Pratap Singh Vs. State of U.P. & Anr., 2016 (1) JIC 659 (All) and Nitin Jain & Ors. Vs. State of U.P. & Anr., 2015 (1) JIC 424 (All). 17. He further submitted that the ingredients of alleged offences do not stand satisfied. He relied on the decision of this Court passed in the cases of Lourenco D’ Souza Vs. State of U.P. & Anr., 2017 (1) JIC 592 (All), Pawan Kumar Jain Vs. State of U.P. & Anr., 2018 (2) JIC 369 (All). 18. In support of his submission that criminal prosecution cannot be used as a weapon of harassment nor can it be used for malicious intention, learned counsel for the applicants placed reliance on the decision in the cases of State of Haryana Vs. Bhajan Lal, 1992 Supp. (1) SCC 335, International Advanced Research Center for Powder Metallurgy and New Materials (ARCI) & Ors. Vs. Nirma Cerglass Technics Pvt. Ltd. & Anr., (2016) 1 SCC (Cri) 269 and Smt. Padma Jain & Ors. Vs. State of U.P. & Anr. reported in 2016 (1) JIC 787 (All). 19. Further submitting that cognizance cannot legally be taken in a mechanical manner without any application of mind, Shri Mishra placed reliance on the decision in the cases of Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors., (1998) 5 SCC 343 , Sukhbir Singh Vs. State of U.P. & Ors., 2017 (1) JIC 451 (All) and Sunil Bharti Mittal Vs. Central Bureau of Investigation, (2015) 4 SCC 609 . 20. He also submitted that High Court can analyse the material to secure the ends of justice and to prevent the use of process of any Court. He relied on the decision of the Hon'ble Apex Court in the case of Indian Oil Corporation Vs. N.E.P.C. India Ltd., (2006) 6 SCC 736 and Anand Kumar Mohatta & Anr. Vs. State (Govt. of NCT of Delhi) Department of Home & Anr., 2019 (1) JIC 1 (SC). 21. On the other hand, Shri V.K. Shahi, learned Additional Advocate General submitted that the instant application is not maintainable. Placing reliance on the judgment and order of the Hon'ble Apex Court in the case of State of Gujarat Vs. Vs. State (Govt. of NCT of Delhi) Department of Home & Anr., 2019 (1) JIC 1 (SC). 21. On the other hand, Shri V.K. Shahi, learned Additional Advocate General submitted that the instant application is not maintainable. Placing reliance on the judgment and order of the Hon'ble Apex Court in the case of State of Gujarat Vs. Afroz Mohammed Hasanfatta, 2019 OnLine SC 132, he submitted that at the stage of issuing process on the police report, the court is not required to weigh the evidentiary value of the materials on record. Learned A.A.G. further submitted that on 16th September, 2018, F.I.R. No. 0260 of 2018 under Section 406 I.P.C. was lodged by Sanjeet Jaiswal, respondent no. 2 against the applicants. He submitted that as per the Excise Policy, it was obligatory on the part of the accused persons to supply the product within 72 hours and admittedly, the goods were supplied belatedly. He further submitted that it is the admitted case of the applicants that two trucks UP32 HN 3209 and UP32 FN 8048 were checked out on 11th September, 2018 for supply of the goods from the go-down of the applicants, but in the statement of Harjeet Kumar, owner of truck no. UP32 HN 3209 recorded by the Investigating Officer under Section 161 Cr.P.C., he stated that he looks after the work of his truck as well as truck no. UP32 FN 8048 owned by his brother and their trucks were being used for transporting the sand and since last several months, the trucks were standing in the yard. Further in the statement of the informant under Section 161 Cr.P.C., he stated that the goods in lieu of Rs.92,98,902/-were not supplied within 72 hours, therefore, he suffered a lot. Shri V.K. Shahi also relied on the letter of District Excise Officer, Gautam Budh Nagar dated 18th September, 2018, written to the Excise Commissioner, Allahabad that the transporter lost the goods, therefore, the probability of affecting of excise revenue cannot be ruled out. Learned A.A.G. lastly submitted that the applicants have alternative remedy of moving discharge application before the trial court at the appropriate stage. 22. Learned A.A.G. lastly submitted that the applicants have alternative remedy of moving discharge application before the trial court at the appropriate stage. 22. Shri Prashant Chandra, learned Senior Counsel appearing on behalf of the informant submitted that the charge sheet dated 10.02.2019 was filed after collecting the incriminating evidence against the applicants, on which the court below rightly taken cognizance under Section 190(1)(b) Cr.P.C. In support of his submission, Shri Chandra also relied on the decision of the Hon'ble Apex Court in the case of State of Gujarat Vs. Afroz Mohammed Hasanfatta (supra). He further submitted that since the entire charge sheet has not been filed and only some extract thereof has been annexed with the application, therefore, the validity of entire charge sheet can neither be assailed nor questioned, as something, which is not before the Court, cannot be examined. Shri Chandra also submitted that the applicants have not come with the clean hands and have consciously indulged in material suppression and have twisted facts with the object to mislead this Court and, thus, the application is liable to dismissed as it is not for the applicants to choose as to what facts are to be stated. In support of his argument, he relied on the decision of the Hon'ble Apex Court in the case of Bhaskar Laxman Jadhav & Ors. Vs. Karamveer Kakasaheb Wagh Education Society & Ors., (2013) 11 SCC 531 . Further relying on the decision of the Sau. Kamal Shivaji Pokarnekar Vs. State of Maharashtra & Ors. (Criminal Appeal No. 255 of 2019), he submitted that at the initial stage of issuance of process, it is not open to the court to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. He also relied on the decision of the Hon'ble Apex Court in the cases of Devendra Pratap Singh Vs. State of Bihar & Anr., (2019) 4 SCC 351 , S. Krishnamoorthy Vs. Chellammal, (2015) 14 SCC 559 , Chilakamarthi Venkateshwarlu & Anr. Vs. State of Andhra Pradesh & Ors. (Criminal Appeal No. 1082 of 2019), Mohd. Allaudin Khan Vs. State of Bihar & Ors., (2019) 6 SCC 107 . State of Bihar & Anr., (2019) 4 SCC 351 , S. Krishnamoorthy Vs. Chellammal, (2015) 14 SCC 559 , Chilakamarthi Venkateshwarlu & Anr. Vs. State of Andhra Pradesh & Ors. (Criminal Appeal No. 1082 of 2019), Mohd. Allaudin Khan Vs. State of Bihar & Ors., (2019) 6 SCC 107 . He concluded his argument with the emphasis that the High Court may have an obligation to intervene under Section 482 Cr.P.C., in cases where manifest error has been committed by the Magistrate in issuing the process despite the fact that the alleged acts did not at all constitute offences. 23. I have considered the arguments advanced by the learned counsel for the parties and gone through the record. 24. Before dealing with the facts of the case, it is necessary to consider the argument of learned counsel for the complainant as well as learned Additional Advocate General regarding maintainability of the present application. 25. After going through the decisions of the Hon'ble Apex Court in the cases of State of Gujarat Vs. Afroz Mohammed Hasanfatta (supra), Bhaskar Laxman Jadhav (supra) and Mohd. Allaudin Khan (supra) relied by Shri Prashant Chandra, it is evident that the Hon'ble Apex Court categorically held that under Section 482 Cr.P.C., High Court may intervene in cases where manifest error has been committed by the Magistrate in issuing process despite the fact that the alleged facts did not at all constitute offences. In such circumstances, it is obligatory to go through the facts of the case and the material collected by the Investigating Officer. In such circumstances, the argument advanced by the learned counsel for the respondents has no legs to stand. 26. Insofar as the submission advanced by Shri V.K. Shahi, learned A.A.G. that the applicants have alternative remedy of discharge at the appropriate stage, therefore, the application is not maintainable, is also baseless. It is well settled by the Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal (supra) that the inherent power under Section 482 Cr.P.C. can be exercised. Hon'ble Apex Court has laid down seven guidelines explaining as to under what circumstances, the power can be exercised. Para 102 of the report is reproduced as under: “102. It is well settled by the Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal (supra) that the inherent power under Section 482 Cr.P.C. can be exercised. Hon'ble Apex Court has laid down seven guidelines explaining as to under what circumstances, the power can be exercised. Para 102 of the report is reproduced 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 extraordinary 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 FIR 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 FIR 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. (4) Where, the allegations in the FIR 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) 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.” 27. Reiterating the parameters laid down in the case of Bhajan Lal (supra), Hon'ble Apex Court in the case of Rajiv Thapar & Ors. Vs. Mohan Lal Kapoor, (2013) 3 SCC 330 laid down that the discretion vested in the High Court under Section 482 of the Code can be exercised suo motu to prevent the abuse of the process of the Court and/or to secure the ends of justice. Relevant part of the judgment is as under: “25. Section 482 CrPC is being extracted hereunder: “482.Saving of inherent powers of High Court.— Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.” The discretion vested in a High Court under Section 482 CrPC can be exercised suo motu to prevent the abuse of process of a court, and/or to secure the ends of justice. 26. 26. This Court had an occasion to examine the matter in State of Orissa v. Debendra Nath Padhi [ (2005) 1 SCC 568 ] (incidentally the said judgment was heavily relied upon by the learned counsel for the respondent complainant), wherein it was held thus: (SCC p. 581, para 29) “29. Regarding the argument of the accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of thepowersoftheHighCourtunderSection482oftheCode and Article 226 of the Constitution of India is unlimited where under in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any court or other wise to secure the ends of justice within the parameters laid down in Bhajan Lal case [State of Haryanav. Bhajan Lal, 1992 Supp (1) SCC 335].” (emphasis supplied) 27. Recently, this Court again had an occasion to examine the ambit and scope of Section 482 CrPC in Rukmini Narvekar v. Vijaya Satardekar [ (2008) 14 SCC 1 :] wherein in the main order it was observed that the width of the powers of the High Court under Section 482 CrPC and under Article 226 of the Constitution of India, was unlimited. In the said judgment, this Court held that the High Court could make such orders as may be necessary to prevent abuse of the process of any court, or otherwise to secure the ends of justice. In a concurring separate order passed in the same case, it was additionally observed that under Section 482 CrPC, the High Court was free to consider even material that may be produced on behalf of the accused, to arrive at a decision whether the charge as framed could be maintained. The aforesaid parameters shall be kept in mind while we examine whether the High Court ought to have exercised its inherent jurisdiction under Section 482 CrPC in the facts and circumstances of this case. 28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. 28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charges levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held. 29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC” 28. The facts, as emerged out from the record, are that the Company is engaged in manufacture and sale of Beer, which is regulated and governed by the Excise Act and other relevant laws of the State. Respondent no. 2, who is the Manager of Licensee firm having F.L. 2B, is engaged in business of sale of Beer etc. by purchasing the same from the Company. On 7th September, 2018, respondent no. Respondent no. 2, who is the Manager of Licensee firm having F.L. 2B, is engaged in business of sale of Beer etc. by purchasing the same from the Company. On 7th September, 2018, respondent no. 2 sent a demand order at 7.56 p.m. to the Company through e-mail for truck load Beer, containing 2360 case. The said mail was also sent to the Assistant Excise Commissioner, Web Distillery Liquor. In pursuance of the indent/demand order dated 07.09.2018, the Company directed its transporter-M/s. Sical Logistics Ltd. to arrange vehicles to deliver the goods from its go-down located at 55, Loha Mandi near Shardha Dharamkanta, Ghaziabad, U.P. to the licensee at Lucknow. However, as the process for supply of goods to respondent no. 2 was initiated on 10.09.2018. After arrangement of the trucks by the transporter, transport permit F.L. 36 was taken on 11.09.2018 for supply of the Beer by 13.09.2018. Thereafter, the consignment of Beer was dispatched on 11.09.2018 for delivery to the licensee at Lucknow, after payment of excise duty, by the said transporter of the Company through truck nos. UP32 HN 3209 and UP32 FN 8048, which have the GPS systems. Location of both the trucks was being tracked by QTS Solutions Pvt. Ltd., which was authorised by the Excise department, through GPS upto the outer limit of city of Lucknow. On 13th September, 2018, the GPS device of both the trucks lost contact with GPS tracker Agency after 11.41 p.m. Ultimately, on 21.09.2018, the Company requested the licensee through e-mail for resupply of Beer against order dated 07.09.2018. The consent for resupply of the Beer against the order dated 07.09.2018 was given by the licensee through e-mail on 22.09.2018. The licensee also informed the Company that criminal proceedings have already been initiated in Police Station Husainganj, District Lucknow with regard to non-supply of Beer, as also of the civil proceedings to be initiated for the loss suffered. 29. On the written complaint of respondent no. 2, F.I.R. bearing Case Crime No. 260 of 2018, under Section 406 I.P.C., P.S. Husainganj, District Lucknow was lodged on 16.09.2018 against the employees of the Company, Akhil Sharda, Himanshu Tiwari and Arvind Padhis with the allegation that on 07.09.2018 and 11.09.2018, two orders were placed for supply of the Beer and Rs.92,98,902/-were paid as per the provisions of Excise Laws. The said Beer was to be supplied within 72 hrs., but the same had not been supplied and, thus, money paid by the informant was apprehended to be cheated. Investigating Officer after recording the statement of the informant and preparing the site plan, submitted final report dated 13th October, 2018 with the observation that the goods were supplied by the Company, but the same did not reach to the destination. Thereafter, Company again supplied the goods to the informant and, therefore, no offence under Sections 420, 406 I.P.C. is made out. Thereafter, Ashok Kumar Jaiswal licensee of FL 2B moved an application before the Inspector General of Police, Lucknow and requested that the officers of the Company are habitual in committing such types of crime and the trucks loaded with the liquor worth of crores of rupees are being missed, on account of which, State suffered revenue loss. Thereafter, the final report dated 13.10.2018 was rejected by the Additional Superintendent of Police (Crime), Lucknow and the matter was transferred for reinvestigation to the Crime Branch. In pursuance of the same, Mr. Jai Prakash Yadav, Investigating Officer, after recording the statement of witness-Abdul Haq, Harjeet Kumar and Subhash (owner of the trucks in question) under Section 161 Cr.P.C., prepared charge sheet dated 10.02.2019 and observed that on the basis of evidence collected during the course of investigation, inspection of site plan, it is found that M/s. United Breweries Ltd., Akhil Sharda s/o Ashwani Kumar Sharda, Arvind Padhi s/o P.K. Padhi, Himanshu Tiwari s/o Ram Nandan Tiwari, all r/o 626, DLF Tower & DDA, Police Station Jasola, New Delhi prepared forged documents and did forgery with the common intention, as a result of which, State suffered huge loss of excise revenue. Investigating Officer further noticed that they committed cheating with the informant also, therefore, offence under Sections 406, 420, 467, 468, 471 and 120B I.P.C. is made out, on which, court below passed summoning order dated 13.02.2019. 30. As on 05.04.2019, interim order was passed by this Court, relevant part of which, is reproduced as under: "Till that time, no coercive action will be taken against the applicants, subject to condition for deposit of adequate security regarding allegations of tax evasion, if any, fixed by the Court below within a week from today. It is also provided that applicants will not leave the country without permission of the Court below." 31. It is also provided that applicants will not leave the country without permission of the Court below." 31. It is evident from the Annexure RA-7 to the rejoinder affidavit dated 17.07.2019 that the aforesaid order dated 05.04.2019 of this Court was placed before A.C.J.M., Court No. 25, Lucknow. He directed the Investigating Officer to submit a report that how much excise duty is evaded by the accused. The Investigating Officer submitted a report dated 17.04.2019 (Annexure-RA-8) and stated that the accused person evaded excise duty amounting to Rs.43,23,164/-in the present case, but this fact does not find place in the case diary. The relevant part of the report dated 17.04.2019 given by Investigating Officer to A.C.J.M., Court No. 25, Lucknow is as under: ^^lsok esa] Jheku ,0lh0ts0,e0 d{k la0 25 y[kuÅ fo"k;& Fkkuk gqlSuxat ij iathd`r eq0v0la0 260@18 /kkjk 420@406@467@468@471 vkbZ0ih0lh0 ls lEcfU/kr vkcdkjh dj ds ckjs esa vk[;kA egksn;] fuosnu gS fd eqdnek mijksDr ls lEcfU/kr 2 Vªd fc;j dks vfHk;qDrx.k }kjk xk;c dj vkcdkjh jktLo dh pksjh dh gS oks izfr Vªd 21]62]582@&:0 ;kuh nksuksa Vªd ls feykdj 43]23]164@&:0 dh vkcdkjh dj dh pksjh vfHk;qDrx.k }kjk dh x;h gSA blds vfrfjDr bu mDr yksxksa }kjk yxHkx 15 ¼ianzg½ Vªd vkSj xk;c fd;k x;k gS ftlds lEcU/k esa foospuk izpfyr gS bl rjg vfHk;qDrx.kksa }kjk vkcdkjh jktLo dk uqdlku fd;k x;k gSA bl rjg lEcfU/kr eqdnesa esa vfHk;qDrx.kksa }kjk dqy 43 yk[k 23 gtkj 164 :i;s dh vkcdkjh dj dh pksjh dh gS rFkk vU; pksjh iwjh tkap ds ckn gh izdk'k esa vk;sxhA fjiksVZ lknj lsok esa izsf"kr A gLrk{kj viBuh; 17-04-2019 ¼t; izdk'k ;kno½ SIS dzkbe czkUp y[kuÅ** 32. After going through the aforesaid report of the second Investigating Officer, A.C.J.M., Court No. 25, Lucknow directed the Excise Officer and also called a report from from the Excise Commissioner, U.P. in relation to the tax evasion in the present case the order dated 18.04.2019 passed by A.C.J.M., Court No. 25, Lucknow is as under: ^^fnukad % 18&04&2019 vkns'k i=koyh izLrqr gqbZA iqdkj ij mHk; i{k ds fo}ku vf/koDrk mifLFkrA t?kU; vijk/k bdkbZ] y[kuÅ ds foospd }kjk fjiksVZ fnukad 17&04&19 dks izLrqr dh x;h ,oa vkcdkjh dj cpkus ds lgh vkdyu gsrq vkcdkjh foHkkx ds l{ke vf/kdkjh dks ryc djus gsrq fo}ku vfHk;kstu vf/kdkjh us izkFkZuk i= fn;kA lquk rFkk i=koyh dk voyksdu fd;kA ekuuh; mPp U;k;ky; dk vkns'k fnukad 05&04&19 ,oa 16&04&19 ds v/khu jgrs gq;s mijksDr vkns'kksa ds vuqikyu gsrq bl U;k;ky; ds vkns'k fnukad 11&04&19 ds dze esa ekuuh; mPp U;k;ky; ds vkns'k dk vuqikyu fd;s tkus gsrq izdj.k ds foospd rFkk vkcdkjh vk;qDr viuh foLr`r vk[;k lfgr fnukad 22&04&19 dks vfHk;kstu ds ek/;e ls mifLFkr gksa rkfd ekuuh; mPp U;k;ky; ds vkns'k dk vuqikyu fd;k tk ldsA i=koyh fnukad 22&04&19 dks is'k gksA g0 viBuh; ¿vt; dqekj flag ¿f}rh;À ,lhts,e d-la-&25 y[kuÅ** 33. In compliance of aforesaid order 18.04.2019 of A.C.J.M., report dated 21.04.2019 of Joint Excise Commissioner, U.P. along with the letter of Excise Commissioner, U.P. dated 21.04.2019 was placed before the court below and Deputy Excise Commissioner (Law), Headquarter, Prayagraj filed affidavit dated 22.04.2019 and deposed that no any excise tax is evaded by the applicants in the alleged transaction. 34. In compliance of aforesaid order 18.04.2019 of A.C.J.M., report dated 21.04.2019 of Joint Excise Commissioner, U.P. along with the letter of Excise Commissioner, U.P. dated 21.04.2019 was placed before the court below and Deputy Excise Commissioner (Law), Headquarter, Prayagraj filed affidavit dated 22.04.2019 and deposed that no any excise tax is evaded by the applicants in the alleged transaction. 34. Relevant part of the aforesaid affidavit is being reproduced as under: ^^'kiFk i= eSa 'kiFkh fot; dqekj flag vk;q yxHkx 55 o"kZ iq= Lo0 Hkxoku c['k flag mi vkcdkjh vk;qDr ¼fof/k½ eq[;ky; iz;kxjkt dk gw¡ tks fd l'kiFk fuEufyf[kr rF; ?kksf"kr djrk gw¡%& 1& ;g fd U;k;ky; Jheku th }kjk ikfjr vkns'k fnukad 18-04-2019 ds vuqikyu esa eq0v0la0 260@18 /kkjk 406] 420] 468] 467] 471] 120ch0 vkbZ0ih0lh0 Fkkuk gqlSuxat y[kuÅ ljdkj&cuke&esllZ ;wukbVsM czsojht fy0 vkfn esa vkcdkjh fM;wVh ds laca/k esa vk[;k ekaxh x;h FkhA vkns'k fnukad 18-04- 2019 ds vuqikyu esa foLr`r vk[;k e; layXud dqy 12 odZ U;k;ky; Jheku th ds le{k bl 'kiFk i= ds lkFk izLrqr dh tk jgh gSA 2& ;g fd vk[;k vuqlkj eq0v0la0 260@2018 Fkkuk gqlSuxat y[kuÅ ds eqdnesa easa xk;c nks Vªd ds laca/k esa dksbZ vkcdkjh dj dh pksjh ugha dh xbZ gSA ftldk okgu la[;k ;q0ih032,Q0,u08048 rFkk ;q0ih032,p0,u03209 gSA 3& ;g fd ch0MCyw0 ,Q0,y0&2ch0 }kjk vfxze vkcdkjh dj tfj;s Vªstjh pkyku tek fd;k tkrk gS mDr fM;wVh tek gksus ds mijkar gh fudklh dh tkrh gSA 4& ;g fd eq0v0la0 260@2018 Fkkuk gqlSuxat y[kuÅ esa xk;c gq, nks Vªd dh iwfrZ ch0MCyw0 ,Q0,y0&2ch0 }kjk 10 fnu foyEc ls eky dh vkiwfrZ vuqKkih v'kksd tk;loky dks dj nh x;h gSa ftldh iqf"V {ks=h; vkcdkjh fujh{kd y[kuÅ }kjk dh tk pqdh gSA iwfrZ okgu la[;k ;q0ih032 lh0tsM09273 rFkk ;q0ih081ch0Vh06658ls dh xbZ gSA 5& ;g fd mDr xk;c Vªd ds laca/k esa VkaliksVZj esllZ fldy dh iwfrZ ugha gks ldrh ??A tks iwfrZ dj nh x;hA QyLo:i fHk;ksx es yksftfLVdl fy0 dEiuh ds eSustj Jh eqds'k dqekj }kjk fnukad 16-09-2018 dks Fkkuk cknyiqj tuin xkSrecq) uxj esa eq0v0la0 390@2018 /kkjk 420] 406 vkbZ0ih0lh0 ------- Vªd Mªkboj lkuw o eqds'k dqekj ds fo:) iathd`r djk;h x;h gSA mDr eqdnesa dh fpd izkFkfedh vk[;k ds lkFk layXu gSA y[kuÅ fnukad&22-04-2019 g0 viBuh; 'kiFkh** 35. It is undisputed that for re-supply of the Beer, excise duty was duly paid to the Excise department, after which F.L. 36 was issued and the goods were supplied by the Company, which was duly received by the informant’s side. It is also undisputed that initially, in Case Crime No. 260 of 2018 (supra), final report was prepared by the Investigating Officer on 13.10.2018. However, on the request of the Ashok Kumar Jaiswal, investigation was transferred to the Crime branch and charge sheet was prepared by the 2nd Investigating Officer on 10.02.2019 with the observation that there is a loss of U.P. Excise revenue. The charge sheet was prepared against the Company, Akhil Sharda, Arvind Padhi and Himanshu Tiwari with the allegation that by preparing a forged documents, the Company cheated the informant and also cause U.P. excise revenue loss. 36. In the present case, admittedly, on the order having been placed by the complainant’s side for supply of the liquor, it was dispatched by the applicants, strictly in accordance with the provisions of U.P. Excise Laws and when it was found missing near the border of District Lucknow, information of the same was duly reported to the Excise officials. Thereafter, on the direction of the Excise officials, F.I.R. No. 0390 of 2018, under Sections 420, 406 I.P.C., P.S. Badalpur, District Gautam Budh Nagar was lodged on 16th September, 2018 by Mukesh Kumar-Manager of M/s. Sical Logistics Ltd., provider of the vehicles. Thereafter, fresh request was asked by the applicants from the complainant on 21st September, 2018 as per the requirement of excise law to pay the excise duty against the order, in response to which, he gave consent on 22.09.2018 against the order dated 7th August, 2018 to resupply the goods. However, vide letter dated 21.09.2018, it was also informed by the complainant that F.I.R. No. 0260 of 2018 (supra) was lodged against the applicants due to non-supply of the goods. Indisputably, applicants resupplied the goods against the order dated 07.09.2018 in lieu of the missing goods without taking any extra cost. Thereafter, final report dated 13th October, 2018 was prepared by the 1st Investigating Officer. However, on the application (undated) of Shri Ashok Kumar Jaiswal-licensee, investigation was transferred to the Crime branch. Indisputably, applicants resupplied the goods against the order dated 07.09.2018 in lieu of the missing goods without taking any extra cost. Thereafter, final report dated 13th October, 2018 was prepared by the 1st Investigating Officer. However, on the application (undated) of Shri Ashok Kumar Jaiswal-licensee, investigation was transferred to the Crime branch. Thereafter, the subsequent Investigating Officer distorted the investigation and started making queries from the applicants that as to why the rebate amounting to Rs.2,26,73,750/-was not paid to the complainant for the period of 1st April, 2018 to 30th September, 2018. 37. On 26th December, 2018, 2nd Investigating Officer-Jay Prakash Yadav wrote a letter to the Company and asked that why the rebate amounting to Rs.2,26,73,750/-has not been paid to the complainant, reply of which, was given by the Company on 15th January, 2019. This fact is recorded in the case diary of Parcha No. SCD 13. Letter dated 26.12.2018 written by the 2nd Investigating Officer is as under: ^^;wukbZVsM czsojht fyfe0 tlksyk fnYyh d`i;k voxr djkuk gS fd Fkkuk gqlSuxat y[kuÅ ij iathd`r eq0v0la0 260@18 /kkjk 406 IPC ls lEcfU/kr vuqKkih v'kksd dqekj t;loky ¼fogkbo ,YQksoso½ 18 LVs'ku jksM y[kuÅ tks mijksDr dEiuh ds ek/;e ls O;kikj djrs gS rFkk mijksDr vuqKkih dks vkidh dEiuh ds }kjk foRrh; o"kksZ es iwoZ es o"kZ 2015] 2016 o 2016&2017 es dEiuh }kjk fjcsV iznku fd;k x;k gS tcfd vuqKkih dks 01 vizSy 2018 ls 30 flrEcj 2018 rd dk fjcsV dqy jkf'k 2]26]73]750@00 ugh fn;k x;k gS d`i;k bl lEcU/k es viuk fyf[kr Li"Vhdj.k iznku djs fdu ifjfLFkfr;ksa es vuqKkih dks fjcsV ugh iznku fd;k x;k gSA izdj.k vfr egRoiw.kZ gS vr% lwpuk 15 tuojh 2019 rd miyC/k djkus dk d"V djsaA ¼ts0ih0 ;kno½ fujh{kd vijk/k 'kk[kk y[kuÅ** 38. Reply of the Company dated 15.01.2019 is also reproduced as under: "15.01.2019 The Inspector, Crime Branch, Lucknow. Kind Attention: Mr. J.P Yadav Dear Sir, Ref: Your letter dated 26.12.2018 We refer to your letter dated 26.12.2018 in relation to a complaint by Mr. Ashok Kumar Jaiswal, Licencee FL-2B, Beehive Alcoveb, Lucknow (hereinafter " the Complainant ") regarding non-payment of rebate for the period 01.04.2018 -30.09.2018 aggregating to Rs. 2,26,73,750/-by United Breweries Limited (hereinafter "the Company").The Complainant also alleged that the Company has not provided the statement of account to them. Ashok Kumar Jaiswal, Licencee FL-2B, Beehive Alcoveb, Lucknow (hereinafter " the Complainant ") regarding non-payment of rebate for the period 01.04.2018 -30.09.2018 aggregating to Rs. 2,26,73,750/-by United Breweries Limited (hereinafter "the Company").The Complainant also alleged that the Company has not provided the statement of account to them. We would like to inform you that the Company has not offered any rebate to the Complainant during the period 01.04.2018 to 30.09.2018 and therefore the claim of rebate for the said period aggregating to Rs 2,26,73,750/-made by the Complainant is unfound. The Complainant is put to strict proof of the same. During your inspection of our Depot at Noida on 26.12.2018 and our Sales Office at Delhi on 26.12.2018, we have shown you the statement of account of the Complainant maintained by the Company. We have also shared the statement of account of the Complainant maintained by the Company. WE have also shared the statement of account with the Complainant and therefore the allegation made by the Complainant that they have not received the statement of account is not true. It may be noted that the Company is engaged in manufacture and sale of beer and the business transactions between the Company and the Complainant are governed by State Excise Laws. All Laws of the Sate under supervision of the Excise officials. Notwithstanding what is stated above, it is humbly submitted that the dispute in question is civil/ commercial in nature and may fall under differently jurisdiction. Thanking you." 39. All Laws of the Sate under supervision of the Excise officials. Notwithstanding what is stated above, it is humbly submitted that the dispute in question is civil/ commercial in nature and may fall under differently jurisdiction. Thanking you." 39. Thereafter, Investigating Officer again wrote a letter dated 25.01.2019, which reads as under: ^^fjiksVZ t?kU; vijk/k bdkbZ y[kuÅ lsok esa] ;wukbZVsM czsojht fyfeVsM 626] 6 th Floor DFL Vkoj BDDA fMfLVªd lsUVj tlkSyk ubZ fnYyh Fkkuk gqlsu xat y[kuÅ ij iathd`r eq0v0la0 260@18 /kkjk 406@420 IPC ls lEcfU/kr dkxtkr miyC/k djkus ds lEcU/k es %& vkidks voxr djkuk gS fd vki ds dEiuh ds ykblsUl/kkjh fogkbZo ,Ydksgy ykblsUl FL-2B ykblsUl /kkjd v'kksd dqekj tk;loky }kjk vius izcU/kd ds ek/;e ls vfHk;ksx vki dh dEiuh ds vf/kdkfj;ksa o dEiuh ds fo:) mijksDr eqdnek iathd`r djk;k gS ftles ;g vkjksi yxk;k x;k gS fd dEiuh tks ykHk@fjcsV gedks iwoZ es nsrh Fkh og gedks 1-4-18 ls 30-9-18 rd dk D;ksa ugh nhA vr% vkidks voxr djkuk gS fd vki ds dEiuh ds m0iz0 ds ;k vU; LVsV ds ftrus Hkh ykblsUl /kkjh gS mudk ysu nsu dk iwjk fooj.k ;kfu lu~ 2015&2016] 2016&2017] 2017&2018 rd dk fooj.k miyC/k djkus dh d`ik djsaA ftlls ;g feyku djk;k tk lds fd vU; ykblsUl/kkfj;ksa dks vki }kjk bu l=ks es fjcsV@ykHk fn;k x;k gS fd ughA ekeyk vR;Ur egRoiw.kZ gS vr% tYn ls tYn lwpuk miyC/k djkuk lqfuf'pr djsa vU;Fkk lwpuk u miyC/k djkus ds lEcU/k es lkjh ftEesnkjh vki dh gksxhA ¼t; izdk'k ;kno½ 25-1-19 dzkbe czkUp SSP vkfQl y[kuÅ** 40. Again a letter dated 31st January, 2019 was written by Jay Pakash Yadav, 2nd Investigating Officer to the Company and asked that under what circumstances, the rebate for the period 01.04.2018 to 30.09.2018 has not been paid. It is evident from the Parcha No. SCD 15 dated 30th January, 2019, in which majeed statement of licensee-Ashok Kumar Jaiswal was recorded by the Investigating Officer under Section 161 Cr.P.C., in which he stated that he is doing business with the Company since long and from time to time, viz., for the period of 31.03.2017 to 16.06.2017, the Company gave rebate and credited the amount of Rs.2 crore in his account. Again on 27.09.2017, Rs.30,00,000/-was credited in his account by the Company. Again on 27.09.2017, Rs.30,00,000/-was credited in his account by the Company. He, thus, stated that for the period of 01.04.2018 to 30.09.2018, about Rs.2 crore 43 lacs were to be credited in his account as rebate, but the same has not been credited. He also stated that the facility of rebate was being given to other groups. 41. The relevant part of the statement of Ashok Kumar Jaiswal is as under: ^^Jheku th] eqdnek mijksDr es ipkZ ua0 SCD (14) iwoZ es fdrk gS nhxj dk;Z ljdkj ls Qqjlr ikdj eS fujh{kd el:Q foospuk gqvk rFkk ykblsUl/kkjh v'kksd tk;loky dks ryc dj dEiuh rFkk muds chp ds O;kikj ds lEcU/k es tkudkjh gsrq ethn c;ku fd;k tk jgk gSA c;ku ykblsUl/kkjh v'kksd tk;loky iq= Lo0 jkepUnz tk;loky fuoklh ,Q-,y- 2 ch fcgkbo ,Ydksgy 18 LVs'ku jksM y[kuÅ us cknj;kQ~r iwNus ij crk;k fd esjk ;wukbZVsM czsojh ls cgqr iqjkuk O;kikj py jgk gSA rFkk dEiuh rFkk esjs chp O;kikj ds nkSjku VsªM izSfDVl dk tks Hkh :i;k esjs [kkrs es le; le; ij dzsfMV fd;k tkrk jgk gS mnkgj.k ds rkSj ij crk;k fd fnukad 31-3-17 dks 16-6- 17 rd esjs [kkrs es dEiuh }kjk 20000000 ¼nks djksM+½ :i;k 1-5 djksM+ :i;k O;kikj dk dzsfMV fd;k x;k rFkk fQj 27-09-2017 dks 3000000 ¼rhl yk[k½ 205 625-00 :i;k dszfMV fd;k x;k gSA 20-3- 18 dks 65000 yk[k 118000 :i;k dszfMV fd;k x;k bls rjg fnukad 1-4-18 ls 30-9-18 rd djhc 2-43 djksM :i;k tks esjs [kkrs es dszfMV gksuk pkfg, Fkk og dszfMV ugh fd;k x;kA dEiuh ds vf/kdkjh nqHkkZouko'k esjh jde [kkuk pkgrs gSA rFkk esjs O;kikj dk uqdlku dj foi{kh dks Qk;nk igWqpkuk pkgrs gS blh rjg csojht ;wukbZV dk esjs cjkcj dk dke pM~ 42. Thereafter, Investigating Officer again wrote a letter on 31.01.2019 to the Company, which is being reproduced as under: ^^lsok esa] ;wukbZVsM cszojht fyfe0 626] 6 th Floor DFL Vkoj B DDA fMfLVªd lsUVj tlkSyk ubZ fnYyh d`i;k voxr djkuk gS fd Fkkuk gqlSuxat tuin y[kuÅ ij iathd`r eq0v0la0 260@18 /kkjk 406] 420 IPC ls lEcfU/kr fuEu fcUnqvksa ij lwpuk o vko';d izi= iznku djus dk d"V djsaA 1& pM~ 2- fogkbo ,Ydksgy ykbZlsUl FL-2B ykblsUl /kkjd v'kksd dqekj tk;loky dk vkidh dEiuh ls fiNys dbZ o"kksZ ls O;kikj gks jgk gS rFkk VsªM izSfDVl ds fglkc ls O;kikj es vkids dEiuh vkSj ykblsUl/kkjh mijksDr ds chp O;kikj ds ykHk dk nksuks i{kks iwoZ es fgLlk nsrs jgs gS tSlk fd vkids }kjk iwoZ fn;k x;k gS fdUrq ,slk D;k dkj.k gS fd vkids }kjk fnukad 1-4-2018 ls 30-9-18 rd dk tks ykblsUl/kkjh Fkk ykHk dk fgLlk curk Fkk mlds [kkrs es D;ks ugh dzsfMV fd;k x;k] vkids }kjk iwoZ voxr djk;h x;h lwpuk viw.kZ gS rFkk vkidk ;g dguk gS fd ;g izdj.k flfoy uspj ;k ,Dlkbt yk ds vUrxZr gS vkSfpR; iw.kZ ugh gS] d`i;k Li"V djsaA 3& D;k vki nksuks i{kks ds chp O;kikj ds nkSjku fn0 1-4-2018 ls 30-9-18 rd ds nkSjku ykblsUl/kkjh ds O;kikj ds ykHk dks ugh fn;k x;k gS bl lEcU/k es D;k vkids }kjk dksbZ fyf[kr lwpuk ykblsUl/kkjh dks nh x;h gS vFkok ughA layXud & ;Fkksifj & 02 o"kZ ¼t; izdk'k ;kno½ izHkkjh fujh{kd t?kU; vijk/k bdkbZ y[kuÅ** 43. Reply dated 03.02.2019 given by the Company is also reproduced as under: "03.02.2019 The inspector In-Charge, Heinous Crime Branch, Lucknow. Kind Attention : Mr. JP Yadav Dear Sir, Ref: Your letter dated 31.01.2019 We refer to you letter dated 31.01.201 in connection with FIR No. 260/18 (pertaining to non-supply of goods) seeking details on the points raised in your letter. We submit our response as under: 1. Statement of business transactions with Licensees of Chadha Group (Wave Group) in the year 2016-17,2017-18 and 01.04.2018 to 30.09.2018. You have sought information in respect of several licensees for past three years ans you will appreciate that the information cannot be compiled in short notice as the information pertains to 3rd party. Further, the information is privileged and confidential and we will have to inform the concerned parties to provided this information. 2. You have sought information in respect of several licensees for past three years ans you will appreciate that the information cannot be compiled in short notice as the information pertains to 3rd party. Further, the information is privileged and confidential and we will have to inform the concerned parties to provided this information. 2. It would be incorrect to say that as per the trade practice we have been sharing profit in trade with the complainant in the past. The Company offers some trade benefits to Licensees which based on various factors including brands, market, volume, etc. and there is no profit sharing understanding/agreement with the complainant. It is entirely at the discretion of the Company to offer such benefits. You are already informed that the Company has not offered any scheme/rebate during the period 01.04.2018 to 30.09.2018 and therefore no amount is payable to the Complainant on this account. We reiterated that these are purely commercial aspects of the trade and may fall under different jurisdiction. 3. As explained above, there is no agreement between the Company and the Complainant for sharing of profit in trade. 4. Notwithstanding the above, it is humbly submitted that the case in subject FIR No. 260/2018 was for non-supply of beer against the consideration paid by the complainant and for which amounts the goods have already been supplied and the grievance stands resolved." 44. It is worthy to be noticed here that during the course of investigation, statement of the owner of the alleged two trucks bearing no. It is worthy to be noticed here that during the course of investigation, statement of the owner of the alleged two trucks bearing no. UP32 HN 3209 and UP32 FN 8048 was also recorded under Section 161 Cr.P.C., in which he stated that his trucks were not used for the purpose as his trucks were being used for transporting sand and since last three months, trucks were standing in the yard, meaning thereby, the vehicle provider provides some other vehicles plying with the numbers UP32 HN 3209 and UP32 FN 8048 and this was the subject matter of investigation of F.I.R. No. 0390 of 018 under Section 420, 406 I.P.C. lodged by Mukesh Kumar-Manager of M/s. Sical Logistics Ltd. But, it reveals from the record of the case diary provided by Shri V.K. Shahi, learned A.A.G. of the aforesaid case that the investigation of the aforesaid case was transferred from Police Station Badalpur, Gautam Budh Nagar to Police Station Banthara, Ditrict Lucknow and was re-numbered as F.I.R. No. 227 of 2019, under Sections 406, 420 I.P.C., P.S. Banthara, District Lucknow. However, investigation of the aforesaid case was dropped by the Investigating Officer on 28th June, 2019 with the finding that for the same offence, F.I.R. No. 260 of 2018 (supra) was lodged in P.S. Husainganj, District Lucknow, investigation of which was being conducted by the same Investigating Officer. Thereafter, impugned charge sheet dated 10.02.2019 was filed in F.I.R. No. 260 of 2018 (supra) with the finding that the alleged goods were vanished with the conspiracy of the Company and its officials and only in the peshbandi, F.I.R. No. 227 of 209 (old no. 390 of 2018) was lodged at P.S. Badalpur. 45. It is evident from the case diary of Case Crime No. 260 of 2018 (supra) that initially 1st Investigating Officer submitted final report with the finding that the goods were re-supplied to the licensee/buyer, but the 2nd Investigating Officer twisted the investigation with the correspondence to the applicants that as to why the rebate was not being paid to the complainant. 46. It is apparent from the record and the pleadings that there is no evasion of tax and it seems that there is a dispute of rebate between the parties and, therefore, the impugned criminal prosecution is a sheer abuse of the legal process. 46. It is apparent from the record and the pleadings that there is no evasion of tax and it seems that there is a dispute of rebate between the parties and, therefore, the impugned criminal prosecution is a sheer abuse of the legal process. It is in view of the reasons, as observed above that no ingredients of deception, fraudulent or dishonest act by inducing the person or criminal breach of trust or forgery are found. 47. Considering the aforesaid facts and parameters laid down by the Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal (supra) and Rajiv Thapar (supra), the application is allowed and the impugned charge sheet dated 10.02.2019 in F.I.R. No. 260 of 2018 and its consequential summoning order dated 13.02.2019 passed by ACJM-I, Court No. 25, Lucknow are set aside. 48. However, before parting with the judgment, it is hereby observed that since it is evident from the record that the owner of the vehicle nos. UP32 HN 3209 and UP32 FN 8048 stated that the vehicles were standing in his yard, meaning thereby, either the owner is a falsehood or the service provider of the vehicles to the Company is plying illegal vehicles on the aforesaid numbers, which is a matter of investigation. 49. In such circumstances, it is directed that the investigation of Case Crime No. 227 of 2019 under Sections 406, 420 I.P.C., P.S. Banthara, District Lucknow (old no. 390 of 2018, under Sections 406, 420 I.P.C., P.S. Badalpur, District Gautam Budh Nagar) be transferred to C.B.C.I.D. forthwith. Commissioner of Police, Lucknow is directed to pass necessary orders for handing over all the necessary documents to the office of Director General of C.B.C.I.D., who, in turn, is directed to depute some competent officer not below the rank of Deputy Inspector General of Police to monitor the further investigation of the aforesaid case on weekly basis and conclude the same as early as possible, strictly in accordance with law. 50. Photocopy of both the case diaries are returned back to the learned A.A.G. 51. Office is directed to communicate this order to the Chief Judicial Magistrate, Lucknow as well as Additional Chief Secretary (Home), Director General (Police), U.P., Director General, C.B.C.I.D. and Police Commissioner, Lucknow for necessary compliance.