Allahabad High Court
Mohd. Ayaz And 2 Others vs State Of U.P. And Another on 4 September, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:156377
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 28838 of 2025
Mohd. Ayaz And 2 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Abhishek Misra, Swatantra Pratap Singh, Sr. Advocate
Counsel for Opposite Party(s)
:
G.A.
Court No. - 71
HON'BLE RAJ BEER SINGH, J.
1. Heard Sri H.R. Mishra, learned Senior Advocate, assisted by Sri Swatantra Pratap Singh, learned counsel for the applicants, Sri K.K. Roy, learned counsel for the opposite party no.2 and learned A.G.A. for the State.
2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as 'BNSS') has been filed for quashing of entire proceedings, including charge-sheet dated 17/18.06.2025 as well as cognizance / summoning order dated 21.07.2025, of Case No. 957 of 2025 (State Vs. Mohd. Zafar and others), arising out of Case Crime No.112 of 2025, under Sections 386, 406, 419, 420, 467, 468, 471, 506 IPC, P.S.- Naini, District- Allahabad, pending in the court of A.C.J.M.-15, Allahabad.
3. Learned Senior Advocate appearing for applicants submitted that applicants are innocent and no prima-facie case is made out against them. Mainly, the allegations have been levelled against co-accused Mohd. Zafar and that earlier the informant and the co-accused Mohd. Zafar have entered into a compromise regarding payment of alleged dues of informant and the amount of informant was paid. As per prosecution version, co-accused Mohd. Zafar has issued cheques to the informant, which were dishonoured and regarding that matter, the informant has issued legal notice to co-accused Mohd. Zafar, making similar allegations but later on first information report of this case was lodged. The facts of the matter clearly show that dispute between the parties is civil in nature and no prima-facie case is made out. It was further submitted that the said dispute is between informant and co-accused Mohd. Zafar and applicants have no concern with the same. Applicant nos.1 & 2 are brother of co-accused Mohd. Zafar and applicant no.3 is father of Mohd. Zafar and they have been falsely implicated due to that reason. No specific allegations have been made against applicants.
4. It is further submitted that M/s New Kohinoor Industries is a registered firm in the name of applicant no.3 and the proprietorship of the same is absolutely vested in him. The said firm is doing business since the year 1992. Applicant no.3 is a reputed businessman and income tax payer. The said firm is duly registered for GST. It is further submitted that the persons other than informant, who have claimed to be cheated, have not made any complaint. Learned Senior Advocate has referred contents of first information report as well as material on record and submitted that no prima-facie case is made out against the applicants. Learned Senior Advocate has also referred case of Delhi Race Club (1940) Ltd. and Others Vs. State of Uttar Pradesh and Another 2024 SCC Online SC 2248 and submitted that both the offences under Sections 420, 406 IPC can not exist simultaneously and thus on this account also the impugned summoning order is liable to be quashed. The investigation has not been conducted properly and signatures on the alleged document were not verified by the Investigating Officer. Referring to facts of the matter, it was submitted that no prima facie case is made out against the applicants.
5. Learned AGA and learned counsel for the opposite party no.2 have opposed the application and submitted that in view of allegations made in the first information report and material on record, a prima-facie case is made out against the applicants. All the applicants were actively involved in the incident in question. It was submitted that it is a case of cheating and forgery and the impugned proceedings can not be quashed merely on the ground that informant has also remedy to invoke civil proceedings for recovery of amount.
6. I have considered the rival submissions and perused the record.
7. The legal position on the issue of quashing of criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if 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, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgement reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal, Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases. In this connection, a reference may also be made to the case of R. Kalyani vs. Janak C. Mehta and Others, 2009 (1) SCC 516, Rupan Deol Bajaj vs. K.P.S. Gill (1995) SCC (Cri) 1059, Rajesh Bajaj vs. State of NCT of Delhi, (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd vs. Biological E Ltd. & Ors, 2000 SCC (Cri) 615. It has been held that if a prima facie case is made out disclosing ingredients of the offence, court should not quash the charge sheet/complaint. It is equally well settled that at this stage questions of fact cannot be examined and a mini trial cannot be held.
8. Coming to the facts of the present case, it may be stated that the applicants are named in the first information report. The informant has alleged in the first information report that co-accused Mohd. Zafar and applicant no.3 Niyamat Ullah have told him that they are having companies by the name of "M/s New Kohinoor Industries" and "HR industries" and that they get orders from companies like N.T.P.C., B.H.E.L., B.P.C.L. etc. for supply of parts of machines and they are having turn over in crores. This company was being managed by Mohd. Zafar, Mohd. Ayaz, Mohd. Hashim and their father Mohammad Niyamat Ullah and they have lured informant to invest in the said company by promising profits and accordingly he has transferred an amount of Rs. 72,94,000/- through the bank account. On false promise of co-accused Mohd. Zafar, informant has further transferred an amount of Rs. 9,50,000/-. It was alleged that informant has transferred said amount by collecting from several persons, including that of Dharmistha Pandey, Ashraf Akhtar, Mohd. Aquib, Faraz Ahmad, Khurshid Ahmad, Sunny Triptahi, Shahid Hashmi, Mohd. Taha etc. and the amount was given to Mohd. Zafar and Niyamat Ullah between the year 2021-2023. It was alleged that besides the amount transferred into bank account, an amount of Rs.40 lakh was given in cash to applicant no.3 Niyamat Ullah and his sons on different occasions. The applicants and co-accused persons have given false and forged documents to the informant in order to win his confidence. It was further alleged that accused Niyamat Ullah and his sons also took an amount of Rs. 55,20,000/- from one Tanveer Khan and the same was also misappropriated. When the informant and other investors have demanded profit and principal amount, Niyamat Ullah and his sons namely Mohd. Zafar Mohd. Ayaz and Mohd. Hashim have told that company was in loss and they have to further invest Rs.50 lakhs in the company and if they did not pay the same, they would get the informant killed.
9. In view of allegations made in the first information report, it is apparent that there are allegations of cheating and forgery against applicants. It would be relevant to mention that in the charge-sheet besides informant Mohd. Yasir, other victim, namely, Mohd. Tanveer Khan, Mohd. Taha, Siddharth Jaiswal, Mohd. Aun, Dharmistha Pandey, Khurshid Ahmad, Kunwar Indrasen have also been cited as witness and as per informant, they have also invested amount in the firm / company of applicants but statements of those witnesses have not been brought on record. In view of allegations made above and material collected during investigation, it can not be said that no prima-facie case is made out against applicants. Hence, the prayer of quashing of proceedings is refused.
10. However, so far impugned summoning order is concerned, by that order applicants have been summoned for offence under Sections 420, 406 I.P.C. besides Sections 386, 419, 467, 468, 471, 506 I.P.C. and in view of law laid down in case of Delhi Race Club (1940) Ltd. and Others Vs. State of Uttar Pradesh and Another 2024 SCC Online SC 2248, offence of cheating viz-a-viz criminal breach of trust are independent and distinct and both cannot exist simultaneously in same set of facts and they are antithetical to each other. Thus, the impugned summoning order is not in accordance with law.
11. In view of the aforesaid, the impugned summoning order dated 21.07.2025, passed by the A.C.J.M.-15, Allahabad is hereby set aside and the matter is remitted back to the court concerned to pass the order on the point of summoning afresh, expeditiously in accordance with law.
12. The application u/s 528 BNSS is disposed of in above terms.
(Raj Beer Singh,J.) September 4, 2025 'SP'/-