Research › Search › Judgment

Allahabad High Court · body

2022 DIGILAW 1188 (ALL)

Kamlesh Kumar Gupta v. State of U. P.

2022-07-29

GAUTAM CHOWDHARY

body2022
JUDGMENT : 1. The instant petition under Article 227 of the Constitution of India has been filed for setting aside the order dated 16.11.2019 passed by learned Chief Metropolitan Magistrate, Kanpur Nagar in Complaint Case No. 6077 of 2018 (Dinesh Kumar Gupta Vs. Kamlesh Kumar Gupta and another) under Sections 420, 467, 468, 471, 504, 506, 120-B I.P.C. Police Station Kakadeo, District Kanpur Nagar, whereby the learned Magistrate after exercise its powers under Sections 311 and 202 Cr.P.C. to arrive at just decision of the case has summoned the N.O.C. along with relevant documents from the concerned department as well as to set aside the Judgement and order dated 29.09.2021 passed by learned Sessions Judge, Kanpur Nagar (Kamlesh Kumar Gupta Vs. State of U.P. and another), whereby criminal revision filed by the petitioner against the order dated 16.11.2019 has been rejected. 2. Brief facts of the case are that the respondent no.2 lodged a first information report against the petitioner and his son namely, Aseem Gupta with the averments that the petitioner and the respondent no.2 are real brother. Sri Chunni Lal, the father of the petitioner as well as of the respondent no.2 had established a company in the year 1983 in the name and style of M/s Hazari Lal Laxmi Narayan Private Limited, of which company, the father was the Managing Director, on the other hand, the petitioner and the respondent no.2 were Directors. In the meantime, the company purchased another company running in the name and style of Kannico Cleaners from its erstwhile owners and since then the company was running in the name and style of Kannico. On 30.03.2007, Sri Chunni Lal died. After his death, the petitioner was looking after the finance and account of the company and the petitioner in order to grab the company without any resolution of Board of Directors as well as without any permission of Registrar of Companies submitted a renewal form before the Assistant Director Factory (Karkhana), Uttar Pradesh, Kanpur Division, Kanpur alleging himself to be a proprietor and when the authority asked for the resolution passed by Board of Directors, the petitioner submitted a forged and fabricated document along with N.O.C. alleged to have been issued by the respondent no.2/complainant and Sri Aseem Gupta, the son of the petitioner also conspired in the act of the petitioner. Upon aforesaid averments, a first information report was lodged in Case Crime No. 0213 of 2018 under Sections 420, 467, 468, 471, 504, 506, 120-B I.P.C. at Police Station Kakadeo, District Kanpur Nagar. Thereafter, the matter was entrusted for investigation and on 31.07.2018, the Investigating Officer submitted charge sheet on the ground that another Complaint Case No. 4961 of 2016 was filed by the respondent no.2 against the accused person, wherein the accused persons are facing trial and thus it is not legally tenable to initiate another criminal proceedings but on the protest petition, the learned Magistrate directed for further investigation pursuant to which, again final report dated 16.02.2019 was submitted, again another protest petition was filed upon which, the learned Magistrate, vide order dated 22.05.2019 treated the case as a complaint case. The case was registered as Complaint Case No. 6077 of 2018 (Dinesh Kumat Gupta Vs. Kamlesh Kumar Gupta) under Sections 420, 467, 468, 471, 504, 506, 120-B I.P.C., in which statement of the respondent no.2 was recorded under Section 200 Cr.P.C. During the pendency of the proceedings, the respondent no.2 moved an application under 91 Cr.P.C. for summoning the N.O.C. as well as other documents from the concerned department as a documentary evidence but the same was rejected vide order dated 19.08.2019, which order was never challenged before any Court as such the order dated 19.08.2018 became final. Thereafter, the statement of son of Shubam Gupta was recorded under Sections 200 Cr.P.C. and during the course of trial, the learned Chief Metropolitan Magistrate suo-motu recalled the order dated 19.08.2019 passed by Chief Metropolitan Magistrate Court No. IX, District Kanpur by which summoned the N.O.C. as well as other documents from the concerned department further directed for obtaining the handwriting expert against which order, the petitioner preferred a criminal revision no. 580 of 2021 CNR No. UPKN01-006606 of 2021 (Kamlesh Kumar Gupta Vs. State of U.P. and another) which was also rejected. It is these two orders which are under challenge before this Court. 3. 580 of 2021 CNR No. UPKN01-006606 of 2021 (Kamlesh Kumar Gupta Vs. State of U.P. and another) which was also rejected. It is these two orders which are under challenge before this Court. 3. Sri Manish Tiwary, learned Senior Counsel submits that prior to initiation of the instant proceedings civil suit was filed by the respondent no.2 as well as his wife being its Original Suit No. 984 of 2017 for permanent injunction whereby restraining the petitioner to run the dry cleaning business in the name of Kannico Dry Cleaners as the trade mark was allocated to them since 2002 and another Original Suit No. 148 of 2017 was filed by the petitioner against the respondent no.2 being its Original Suit No. 148 of 2017 which suits are pending consideration. He further submits that apart from the aforesaid civil suits, the respondent no.2 in order to cause harm and harassment had also filed a complaint before the Senior Superintendent of Police, Kanpur Nagar for lodging of the F.I.R. against the petitioner upon which an enquiry was conducted by the Circle Officer, Swaroop Nagar, District Kanpur Nagar, stating therein that on the same set of allegations another Complaint Case No. 4961 of 2016 was filed by the respondent no.2 as well as Civil Suit No. 148 of 2018 are also pending consideration. Again another complaint was filed for registration of the F.I.R. against the petitioner upon which a report was submitted stating therein that on the same set of facts a complaint case no. 4961 of 2016 is pending consideration thus no further police proceedings is required. The sole malafide intention of the respondent no.2 to exert pressure and influence upon the pending suits and lastly the respondent no.2 succeded in getting the F.I.R. lodged against the petitioner upon which twice final report was submitted inpsite of the same, the learned Magistrate has treated the case as a complaint case. The sole malafide intention of the respondent no.2 to exert pressure and influence upon the pending suits and lastly the respondent no.2 succeded in getting the F.I.R. lodged against the petitioner upon which twice final report was submitted inpsite of the same, the learned Magistrate has treated the case as a complaint case. He further submits that once the application under Section 91 Cr.P.C. filed by the respondent no.2 itself, for summoning the N.O.C. as well as other documents from the Assistant Registrar Director Factory (Karkhana) has been rejected vide order dated 19.08.2018, which order was never challenged before any Court by the respondent no.2, and recording of the statement of son of the respondent no.2 under Section 202 Cr.P.C. the respondent himself has made an endorsement on the order sheet that he does not want to file any evidence which was also observed in the order dated 02.11.2019 then there was no occasion for the learned Magistrate to suo-motu recalled its order dated 19.08.2018 vide order dated 16.11.2019 and the same is also barred by Section 362 Cr.P.C. He next submits that even the handwriting expert came to the conclusion that disputed signature respondent no.2 was not executed by petitioner on the N.O.C. and therefore, the impugned order is not tenable in the eyes of law. 4. The petitioner being aggrieved by the order dated 19.08.2018 had preferred a criminal revisional before the learned Sessions Court but the learned Sessions Court instead of setting aside the order dated 19.08.2018 has rejected the revision in the illegal and arbitrary manner. Learned counsel has lastly argued that the learned Magistrate while exercise its powers under Sections 311 and 202 Cr.P.C. had passed the impugned order dated 16.11.2019 suo-motu whereas Section 311 Cr.P.C. specifically provides powers that at any stager of any inquiry or trial or other proceedings under the Code, the Court may summon any person as a whiteness or examine any person in atteance, though not summoned as a witness or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case, while in the instant case, the learned has not summoned or recall any witness. 5. 5. Advocate Gaurav Kakkar, appeared before this Court and expressed his desire to assist the Court upon which there is no objection. Sri Kakkar has provided some material to the court to decide this issue. He placed the reliance of Hanuman Ram Vs. The State of Rajasthan and Ors., 2009 (1) ACR 789 (SC). Paragraph Nos.. 5, 6 and 9 are mentioned below: "5. Reference may be made to Section 311 of the Code which reads as follows: 311. Power to summon martial witness, or examine person present,- Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re-examine any person if his evidence appears to it to be essential to the just decision of the case. 6. The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court by duty of examining a material witness who would not be brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. 9. The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant. These aspects were highlighted in Jagat Ravi v. State of Maharashtra ( AIR 1968 SC 178 ), Rama Paswan and Ors. v. State of Jharkhand ( 2007 (11) SCC 191 ) and Iddar and Ors. v. Aabida and Anr. ( 2007 (11) SCC 211 )." 6. On the other hand, learned counsel for the respondent no.2 as well as learned A.G.A. for the State has vehemently opposed the contentions as advanced by learned counsel for the petitioner. Learned counsel for the respondent no.2 has submitted that the learned Magistrate has committed no illegality in recalling the order dated 19.08.2018 vide order dated 16.11.2019 to arrive at a just decision of the case. Learned counsel for the respondent no.2 has submitted that the learned Magistrate has committed no illegality in recalling the order dated 19.08.2018 vide order dated 16.11.2019 to arrive at a just decision of the case. He next submits that Sri Arun Kumar Assistant Director (Factories) submitted all the original documents, which were five in numbers) including the forged NOC filed by the accused person and on 07.12.2019, the respondent no.2 filed an application requesting the Court to keep all the original documents produced by the Factory Director under the sealed cover and the learned trial Court after considering the evidence under Section 200 and 202 Cr.P.c. came to the conclusion that the accused persons has to be summoned and thus has rightly summoned the petitioner as well as his son Aseem Gupta under Sections 420, 467, 468, 471, 504, 506, 120-B I.P.C. vide order dated 13.12.2019 against the said summoning order, the petitioner filed a Criminal Revision No.81 of 2020 before the learned Sessions Court, which too has been dismissed. He next submits that the petitioner also preferred a Criminal Misc. (482) Application No. 9738 of 2021 against the summoning order as well as order passed by the revisional Court, before this Court which was dismissed as withdrawn vide order dated 22.07.2021. In the meantime, the petitioner also filed a Anticipatory Bail Application before the learned Sessions Judge which was rejected and the same is under challenge before this Court and is now pending consideration. He also submits that the order dated 16.11.2019 by which the learned Magistrate has summoned the relevant documents in exercise of powers under Section 200 Cr.P.C. is a fresh order and independent order, which cannot be said to recalling the earlier order dated 19.08.2018. Learned counsel for the respondent no.2 has placed reliance upon the Judgement of Hon'ble Apex Court reported in AIR 2019 SC 2390 in the matter of Birla Corporation Limited Vs. Adventz Investments and Holdings Limited and Ors., reported in AIR 2019 SC 2390 wherein it has been held that 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. The application of mind has to be indicated by disclosure of mind on the satisfaction. The application of mind has to be indicated by disclosure of mind on the satisfaction. Considering the duties on the part of the Magistrate for issuance of summons to accused in a complaint case and that there must be sufficient indication as to the application of mind and observing that the Magistrate is not to act as a post office in taking cognizance of the complaint, At the stage of issuance of process to the accused, the Magistrate is not required to record detailed orders. But based on the allegations made in the complaint or the evidence led in support of the same, the Magistrate is to be prima facie satisfied that there are sufficient grounds for proceeding against the accused. Extensive reference to the case law would clearly show that the allegations in the complaint and complainant's statement and other materials must show that there are sufficient grounds for proceeding against the accused. While ordering issuance of process against the accused, the Magistrate must take into consideration the averments in the complaint, statement of the complainant examined on oath and the statement of witnesses examined. since it is a process of taking a judicial notice of certain facts which constitute an offence, there has to be application of mind whether the materials brought before the court would constitute the offence and whether there are sufficient grounds for proceeding against the accused. It is not a mechanical process. the object of an enquiry under Section 202 Cr.P.C. is for the Magistrate to scrutinize the material produced by the complainant to satisfy himself that the complaint is not frivolous and that there is evidence/material which forms sufficient ground for the Magistrate to proceed to issue process under Section 204 Cr.P.C. It is the duty of the Magistrate to elicit every fact that would establish the bona fides of the complaint and the complainant. Since number of accused are residents beyond the local limits of the trial court, as per amended provision of Section 202 Cr.P.C., it is obligatory upon the Magistrate that before summoning the accused, he shall enquire into the case or direct the investigation to be made by a police officer or by such other person as he thinks fit for finding out whether or not there are sufficient grounds for proceeding against the accused. In the present case, the learned Magistrate has opted to hold such enquiry himself. In the present case, the learned Magistrate has opted to hold such enquiry himself. 7. Heard Sri Manish Tiwari, learned senior counsel assisted by Sunil Kumar, learned counsel for the applicant, learned A.G.A. for the State, Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Padmakar Pandey, learned counsel for respondent no.2 and Sri Gaurav Kakkar, Advocate and perused the record. 8. After hearing the learned counsel for the parties and after perusing the material on record, it is evident that the question before this Court as to whether the order dated 16.11.2019 has been passed in correct perspective or not? This Court is of the opinion that the learned Magistrate in exercise powers conferred under Section 202 Cr.P.C. the Magistrate may inquire into the case himself or direct an investigation to be made by the police officer or by such person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. In the instant case, specific allegation against the petitioner is that he in order to grab the company without any resolution of Board of Directors as well as without any permission of Registrar of Companies submitted a renewal form before the Assistant Director Factory (Karkhana), Uttar Pradesh, Kanpur Division, Kanpur alleging himself to be a proprietor and when the authority asked for the resolution passed by Board of Directors, the petitioner submitted a forged and fabricated document along with N.O.C. alleged to have been issued by the respondent no.2/complainant, thus to arrive at a just decision of the case it was incumbent upon the learned Magistrate to summon those documents from the concerned authority and therefore, there is no illegality in the impugned order dated 16.11.2019, which has been rightly upheld by the learned Sessions Court vide its Judgement and order dated 29.09,2021. 9. In view of above, the instant petition lacks merit and is accordingly, dismissed 10. This Court appreciate the assistance rendered by Sri Gaurav Kakkar, Advocate in the instant case.