Allahabad High Court
Raju Saini vs State Of U.P.& Another. on 1 July, 2010
Author: S.N.H. Zaidi
Bench: S.N.H. Zaidi
Court No. - 18 Case :- U/S 482/378/407 No. - 319 of 2007 Petitioner :- Raju Saini Respondent :- State Of U.P.& Another. Petitioner Counsel :- R.S.Malik,Deepti Tripathi,Naveen Bhardwaj Respondent Counsel :- Govt.Advocate,A.K. Singh Hon'ble S.N.H. Zaidi,J.
By means of this application filed under section 482 of the Code of Criminal Procedure, 1973, for short, Cr.P.C., the applicant has invoked the inherent powers of this Court with a prayer to quash the proceedings of Case No. 1031 of 2006(State vs. P.K. Sharma and another) relating to Crime No. 104/2001 under section 406 IPC of P.S. Bazar Khala, Lucknow, pending in the Judicial Magistrate-I, Court Room No. 14, Lucknow.
I have heard Shri Abhishek Mishra holding brief of Shri Navin Bhradwaj, learned counsel for the applicant, opposite party no.2 in person and the learned A.G.A. for the State and perused the material placed on record.
As per prosecution case opposite party no.2, Kamal Kishore Gupta and his wife Smt. Tara Gupta had invested Rs. 2,25,000/- in different investment schemes of Kuber Group of Companies, of which P.K. Sharma was the Chairman-cum- Managing Director. The said Company has now been wound up. The applicant Raju Saini, representing himself as Chief Executive of the Managing Director of the said Company contacted opposite party no.2 and disclosed that the Company was not in a position to return the invested amount but since it had some land on Delhi-Jaipur Road, in village Binaula in Hariyana, near New Delhi, he could take the plot in it in lieu of his money, and if he accepts the offer, he would have to give an additional amount of Rs. 20,000/- to meet the expenses of registration etc. Opposite party no.2 accepted the offer and gave a crossed cheque of Rs. 20,000/- to the applicant in his name. The applicant despite assuring that the documents for the registration would be ready within a month did not get the deed executed even after expiry of about four months and had cheated the opposite party no.2 with an amount of Rs. 20,000/-. A case under section 406 IPC was registered against the applicant and the said P.K. Sharma at the concerned police station. The police, after investigation, submitted the charge sheet under sections 406 and 420 IPC against them.
The above facts have not been disputed by the applicant except hat the amount of Rs. 20,000/- was bonafidely taken from opposite party no.2 towards payment of stamp duty and registration fees and applicant was not the beneficiary of the said amount and he had received the cheque only as an employee of the Company and as such no offence is made out against the applicant.
Since the facts as mentioned in the F.I.R. are not disputed and it has also not been disputed that the crossed cheque of Rs. 20,000/-, which was in the name of applicant, was accepted by the applicant and was got encashed by him, hence at this stage it can not be said that no offence is primafacie disclosed against him as the applicant has not shown as to why the necessary deed of the plot could not be executed and registered in favour of opposite party no.2 as assured.
From the perusal of material on record and looking into the facts of the case, at this stage prima facie commission of offence is made out against the applicant. At this stage only a prima facie case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur versus State of Punjab, AIR 1960 SC 866, State of Haryana versus Bhajan Lal, 1992 SCC (Cr) 426, State of Bihar versus P.P. Sharma, 1992 SCC (Cr) 192, and lately Zandu Pharmaceutical Works Ltd. versus Mohd. Saraful Haque and another 2005 SCC (Cr.)283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under section 239 Cr.P.C. through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the trial court.
In the event such an application is filed, the trial court is directed to consider and dispose it off within a period of two months from the date of it's filing.
The prayer for quashing the proceedings of the concerned case is refused.
It is also directed that if the applicant surrenders before the trial court within fifteen days from today and moves for bail, the prayer of the applicant shall be considered and disposed of expeditiously.
With the aforesaid direction, the application is accordingly dismissed.
Order Date :- 1.7.2010 Muk