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Allahabad High Court · body

2023 DIGILAW 1228 (ALL)

Devinderjeeet Singh Sethi v. State of U. P.

2023-05-03

JYOTSNA SHARMA

body2023
JUDGMENT : 1. Heard Sri V.P. Srivastava, learned Senior Advocate holding brief for Sri Vikas Chandra Srivastava, Sri Manish Tiwary, learned Senior Advocate assisted by Syed Imran Ibrahim, learned counsel for the opposite party no.2, Sri O.P. Mishra, learned A.G.A. for the State and perused the record. 2. This criminal revision has been filed by the revisionist-Devinderjeet Singh Sethi challenging the order dated 27.07.2022 passed in Complaint Case No.2322 of 2018 “Rishi Agarwal vs. Devinderjeet and Others”, whereby the court of Additional Chief Judicial Magistrate dismissed an application filed under section-245(2) Cr.P.C. and posted the case for framing of charge under sections-406, 420, 467, 468, 471 and 120B I.P.C. 3. Relevant facts as emerging from record are as below:- (I) The complainant-Rishi Agarwal lodged an F.I.R. against the revisionist-Devinderjeet Singh, four other named persons and certain unknown persons with the allegations in nutshell that the first informant’s company is in the business of sale and purchase of property in Delhi NCR; the accused-revisionist Devinderjeet Singh Sethi came in his contact in 2012 telling him that he is engaged in the business of giving money on credit; a meeting was fixed by one Piyush Tiwari and they entered into business relations; the complainant trusted the accused Devinderjeet; over a period of time certain disagreements arose with co-accused Piyush Tiwari; Devinderjeet Singh Sethi offered to settle the matter between him and the first informant; a meeting was arranged between all the shareholders and it was agreed that the shareholders shall purchase the first informant’s share holding of Rs.13,22,50,000/-; Devinderjeet Singh Sethi was successful in persuading him to handover original share certificates, blank share forms and certain signed blank papers saying that he will keep them in safe custody and will utilize only when the price thereof Rs.13,22,50,000/-is actually paid to the first informant. A few days thereafter he came to know that by misusing his signed paper, he has been removed from the directorship of the company, M/s. J.S.S. Build Con Pvt. Ltd.; therefore, he filed a separate F.I.R. (Case Crime No.728 of 2016) at Kalikaji, New Delhi in which the investigation is going on. A few days thereafter he came to know that by misusing his signed paper, he has been removed from the directorship of the company, M/s. J.S.S. Build Con Pvt. Ltd.; therefore, he filed a separate F.I.R. (Case Crime No.728 of 2016) at Kalikaji, New Delhi in which the investigation is going on. Further, the first informant asked the accused-revisionist to return all his papers but he kept on avoiding on different pretext; till then, he never doubted the intentions of the accused-revisionist and has always been discussing and getting advised from him about his matters and also about the case, which is going on in NCLT, New Delhi; he came to know on 01.07.2017 that the accused-revisionist has given an application for transfer of 2500 shares in his name by misusing his signed blank papers; it is alleged that he hatched a conspiracy with others; the first informant had never given any consent for transfer of his shares and he got the shares transferred in his own name in a fraudulent manner. Therefore, the case is registered under sections-406, 420, 467, 468, 471 and 120B I.P.C. against the accused-revisionist and others. (II) The investigation commenced and statements of witnesses were recorded. The Investigating Officer filed a final report purportedly for lack of evidence against the accused persons. (III) The protest application of first informant was treated as a complaint case and after examination of complainant, his witnesses and inquiry under section 202 Cr.P.C., accused-Devinderjeet Singh Sethi, Piyush Tiwari, Paritosh Kumar Sharma and Ankti Sharma were summoned for the offence under sections-406, 420, 467, 468, 471 and 120B I.P.C. by an order dated 31.07.2018. (IV) The accused person challenged the summoning order by filing a revision before the court concerned. The Criminal Revision No.187 of 2018 was dismissed and the summoning order was affirmed by an order dated 18.02.2019. It may be noted that the copy of order passed by the revisional court is not available on record. (V) The instant revisionist preferred an Application (u/s 482 Cr.P.C.) No.10622 of 2019, which was heard and decided refusing the relief of quashing the order of summoning. (VI) Thereafter, the accused persons filed a discharge application under section-245(2) of Cr.P.C. giving his side of the story. (V) The instant revisionist preferred an Application (u/s 482 Cr.P.C.) No.10622 of 2019, which was heard and decided refusing the relief of quashing the order of summoning. (VI) Thereafter, the accused persons filed a discharge application under section-245(2) of Cr.P.C. giving his side of the story. (VII) In nutshell, it is stated in application for discharge that infact the first informant duly sold the shares against full and final payment by the accused over a period from 31th March, 2013 to 2016; details whereof have been given in the application itself; before filing of this F.I.R., the first informant-Rishi Agarwal had filed another F.I.R. against Piyush Tiwari, Paritosh Sharma and Ankit Sharma on the basis of same set of documents/evidence which have been given with the instant F.I.R.; there has not been any conspiracy; no signed papers were misused by him; the sale transaction are duly reflected in balance-sheets of the company; the balance-sheets have been duly audited by the CA; the accused has cleared all the amount due to the first informant; no such meeting as alleged by the first informant was held on 11.03.2014; at the most the dispute can be termed one of civil nature only; there has not been any dishonest inducement or intention etc.; as no forged paper was prepared and no conspiracy was hatched, therefore no offence is made out against him. (VIII) The learned trial court heard both the sides on this application and the same was dismissed on 27.07.2022. Now accused is before this Court in this criminal revision. 4. The crux of the contentions placed before this Court relate to the plea taken by the revisionist that it is a matter of claim of money and no more, therefore dispute is merely of civil nature and the complainant cannot be allowed to convert the same into a criminal case. Secondly, the learned Magistrate did not even look into the documents like bank statements, the balance-sheets, the true copy of share certificates and other documents produced on his behalf in support of his discharge application. Thirdly, there is no material to show that the revisionist nurtured a dishonest intention since the very beginning or practised any deception to induce delivery of property or that any forged paper was prepared by him. Thirdly, there is no material to show that the revisionist nurtured a dishonest intention since the very beginning or practised any deception to induce delivery of property or that any forged paper was prepared by him. It is vehemently argued that the learned trial court should have considered the pleas and the contentions placed on his behalf instead of passing a cryptic order. 5. I went through the impugned order; the learned trial court has noted down the facts as alleged by the complainant; and thereafter has noted down the other side of the story as given in the application by the accused. In the last but one para of the order, the trial court has held as below:- ^^ÁLrqr ekeys esa oknh us vfHk;qDrx.k ds fo#) ÁksVsLV ÁkFkZuk i= U;k;ky; esa nkf[ky fd;kA ÁkFkZuki= dks Lohdkj djrs gq, fnukad 09-05-2018 dks vafre vk[;k 02@2018 fnukad 24-01-2018 dks fujLr djrs gq, mDr Ádj.k ifjokn ds #i esa ntZ fd;k x;kA ifjoknh }kjk /kkjk&200 n0Á0la0 202 n0Á0la0 esa is'k fd;s x;s lk{khx.k dh lk{; ds mijkUr ÁFke n`"V;k ekeyk ikrs gq, U;k;ky; }kjk ikfjr vkns'k fnukafdr 31-07-2018 ds rgr vfHk;qDrx.k fnohUnzthr flag lsBh] ih;q"k frokjh] ifjrks"k dqekj 'kekZ o vafdr 'kekZ dks /kkjk&420]406]467]468]471]120ch vkbZ0ih0lh0 esa ryc fd;k x;kA vfHk;qDrx.k dks ryc fd;s tkus ds rych vkns'k fnukafdr 31-07-2018 ds fo#) ifjoknh }kjk ekuuh; fuxjkuh U;k;ky; esa nkf.Md iqujh{k.k la[;k&187 lu~ 2018 nsosUnzthr flag lsBh cuke mRrj Áns'k ljdkj o _f"k vxzoky vkfn fuxjkuh ÁLrqr dhA ekuuh; iqujh{k.k U;k;ky; }kjk mijksDr iqujh{k.k esa ikfjr vkns'k fnukafdr 18-02-2019 esa ;g vkns'k ikfjr fd;k x;k fd& ^^fuxjkuh [kkfjt dh tkrh gSA nkf.Mdk ifjokn la[;k 2300@2018 _f"k vxzoky cuke nsosUnzthr flag lsBh vkfn va0 /kkjk ]406]420]467]468]471]120ch vkbZ0ih0lh0 Fkkuk lSDVj&49 uks,Mk ftyk xkSrecq)uxj esa f}rh; vij eq[; U;kf;d eftLVªsV] xkSrecq)uxj }kjk ikfjr vkns'k fnukafdr 31-07-2018 iq"V fd;k tkrk gSA** vfHk;qDr dks ryc fd;s tkus ds mijkUr vHkh rd ,slk dksbZ uohu lk{; vFkok uohu rF; vFkok dksbZ fLFkfr ifjorZu gksus dks lk{; ugha gSA vfHk;qDrx.k }kjk tks rF; ÁLrqr fd;s x;s og lk{; dks fo"k; gS] ftudks lk{; ds Lrj ij gh ns[kk tkuk gSA** 6. Before proceeding any further, provisions of Section-245(2) of Cr.P.C. must be noted, which is as below:- “(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.” 7. The law gives an opportunity to the accused person to place his contentions before the court concerned, even before the complainant has had an opportunity to produce his evidence under section-244 Cr.P.C. Undoubtedly, the provisions of Section-245(2) Cr.P.C. have certain purpose. The opportunity which has been provided by law cannot be dealt perfunctorily. It appears that the trial court just took shelter of the order passed by the revisional court by which the summoning order was challenged. A minute difference between the two stages may be noted. The summoning order is passed at a stage where the accused has no say in the matter and at that stage, the order is passed rather in an ex-parte manner, if I may be permitted to use this word. No doubt at that stage as well, the Court is obliged to consider the evidence before it and to arrive at a satisfaction that there are grounds for summoning the accused. However, the opportunity as provided to the accused person under section-245(2) Cr.P.C. is different inasmuch at that stage the accused has an opportunity to place his side of the story and therefore at that stage, the trial court is better equipped to weigh the evidence (which is already on record) in a more balanced manner. The opportunity which was not available to the accused is now available to him at that stage. The trial court is not expected to not consider the merits of the contentions of the accused side and merely pass an order saying nonchalantly that no new evidence has come in between. It is noteworthy at this juncture, that though the accused side cannot produce any evidence in defence, but he has every right to point out the defects, deficiencies or infirmities, which may already be there in the prosecution story or the evidence produced by the complainant. As is very clear from the order itself, the learned trial court refused to go into the merits of the objections raised by the accused person on the premise that no new evidence has come. As is very clear from the order itself, the learned trial court refused to go into the merits of the objections raised by the accused person on the premise that no new evidence has come. This is a flawed approach and against the provisions of law. The impugned order suffers from illegality, impropriety and is therefore liable to be set-aside. 8. The impugned order is set-aside. The learned trial court is directed to pass a fresh order after giving an appropriate opportunity of hearing. 9. Copy of this order be transmitted to the court concerned immediately.