Allahabad High Court
R.N.Kapoor @ Rajendra Nath Kapoor, vs State Of U.P., & Another on 2 February, 2010
Author: Raj Mani Chauhan
Bench: Raj Mani Chauhan
Reserved.
Criminal Misc. Case No.312 of 2010
R.N. Kapoor @ Rajendra Nath Kapoor ...................Applicant.
Versus
State of U.P. And another. ....Opposite Parties.
Hon'ble Raj Mani Chauhan, J.
This application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) has been moved by the accused R.N. Kapoor @ Rajendra Nath Kapoor son of Late Mahesh Nath Kapoor, resident of 91, Trans Gomti, in front of Railway Crossing Daliganj, Sitapur Road, P.S. Aliganj, District Lucknow for quashing the summoning order dated 01.02.2007 passed by Additional Chief Judicial Magistrate-I, Lucknow in complaint Case No.264 of 2002, State Versus R.N. Kapoor, whereby the learned Additional Chief Judicial Magistrate has summoned the accused for the offences under Sections 406, 418, 504, 506 I.P.C. on the complaint of opposite party no.2 Deva Nand Sharma.
The relevant facts giving rise to the present case in brief is that the opposite party no.2 Deva Nand Sharma son of Ram Awadh Sharma, resident of 473/14, Murai Tola Rooppur Khadra, Sitapur Road, P.S. Hasanganj, Lucknow filed a complaint in the court of Judicial Magistrate-I, Lucknow against Madhu Sahkari Grih Nirman Samiti Ltd. Lucknow registration No.3371 through its Secretary, Sri R.N. Kapoor, with the allegation that the accused as a Secretary of the Samiti had agreed to sell plot no.44, area 1147 squire feet to him for Rs.44,780/- He had executed an agreement too on 26.10.2008. He had paid him Rs.5,000/- in advance towards part payment of the sale consideration . He was an employee of National Insurance Company, Divisional Office, Lucknow and was posted at Gonda. He thereafter, applied to the company for sanctioning housing loan advance. The company after deducting Rs.5,000/- which he had paid to Shri Kapoor in advance, had sanctioned Rs.39,480/-. He received the sanctioned amount through cheque issued on behalf of the company. Sri Kapoor executed a sale-deed in his favour on 23.01.2009, wherein the sale amount was shown as Rs.27,800/- while he had paid him total amount of Rs.44,780/-. Sri Kapoor defrauding him had charged an excess amount of Rs.16,680/-. He thereafter wrote a letter to Sri Kapoor to return the excess amount, which he had taken for selling the plot but he did not return back the same. In this way he was defrauded by Sri Kapoor and felt humiliated.
The learned Magistrate recorded the statement of complainant Deva Nand Sharma under Section 200 of the Code and statement of his witness Surekha Yadav under Section 202 of the Code. The learned Magistrate on the basis of statement of complainant and witness found that prima-facie offences under Sections 406, 418, 504, 506 I.P.C. against the accused was being made out, therefore, the learned Magistrate vide impugned order has summoned the accused. The accused being aggrieved by the impugned order of summoning has filed the present application under Section 482 of the Code.
The submission of the learned counsel for the applicant is that as per allegations of the complaint, the dispute between the parties relate to the civil dispute. On account of clerical mistake excess amount of the sale consideration had been accepted by the accused-applicant. When the mistake was detected he offered to pay the excess amount to the complainant but the complainant just to harass the accused has filed the complaint. The learned counsel further submits that as many as seven other persons had also purchased the plot of the society, who too had paid excess amount but their amount was refunded by the society to them and they gladly accepted the same. The accused never intended to defraud or grab the amount of the complainant. In this way no offence under Sections 406, 418, 504, 506 I.P.C. is made out against the accused. The complainant has filed the present complaint against the accused-applicant just to harass him, which is nothing but abuse of legal process. The learned Magistrate has mechanically passed the impugned order without application of mind. The impugned order is, therefore, illegal and is liable to be quashed.
I, do not agree with the submissions of the learned counsel for the applicant. The law on the point to summon an accused under Section 204 of the Code is well settled. The settled principle of law for summoning an accused at the stage under Section 204 of the Code is that the Magistrate has to find out prima-facie case against the accused. The Magistrate is not required to make a meticulous comment on the statement of complainant and his witness. At this stage the nature of evidence which is required to be considered i.e. prima-facie evidence which disclosed commission of offence and not such type of evidence which may likely end in the conviction of the accused. The learned Magistrate on the basis of allegations made by the complainant in his complaint, his statement as well as statement of his witness Surekha Yadav, has found prima-facie evidence in support of offence under Sections 406, 418, 504, 506 I.P.C against the accused, therefore, he has summoned the accused by the impugned order. The impugned order, therefore, does not suffer from any illegality, which does not call for any interference by this Court.
The application under Section 482 of the Code has got no force and is liable to be rejected.
The application is, therefore, rejected.
02.02. 2010 Prajapati/-