Dismissed

Mohd. Akram and Another v. State of U.P. and Another

Allahabad HC7 Feb 2018A482/3171/2018

Case brief

AI extract

What is this about?

High Court rejected application under Section 482 Cr.P.C. to quash chesheet and proceedings in cheating case. Court held disputed facts cannot be adjudicated at this stage and alternative remedies exist. Applications were permitted to move for bail within 30 days; coercive measures stayed if they appear.

What did the court decide?

Prayer for quashing charge-sheet and proceedings refused. Directive to consider bail applications expeditiously if applicants appear within 30 days. Coercive action stayed during this period.

Mohd. Akram and Another Vs State of U.P. and Another — Cheque Dishonour | Allahabad HC (2018)

AFR

Court No. - 22

Case :- APPLICATION U/S 482 No. - 3171 of 2018

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Applicant :- Mohd. Akram And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ganesh Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Aniruddha Singh,J.

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Heard learned counsel for the applicants and learned A.G.A. for the State. Perused the records.

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The applicants, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to quash the Charge-Sheet No.01 of 2017 dated 19.4.2017, as well as the entire proceedings of Criminal Case No.3181 of 2017(State vs. Mohd. Akram & another) arising out of Case Crime No.174 of 2017 under Sections 406, 504, 506 IPC, Police Station Dhanghata, District Sant Kabir Nagar, pending in the Court of Judicial Magistrate, Sant Kabir Nagar.

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According to prosecution case, FIR was lodged against Mohd. Akram and Zubair Ahmad alleging that they have cheated by taking Rs.1,20,000/- for providing job to the brother of complainant in Saudi Arabia but they employed him for clearing utensils; They have also cheated by taking Rs.36,000/- in place of 20,000/- for ticket; on 2.2.2017 at 10 A.M. when complainant and his brother asked to return the money, Mohd. Akram said that he would not return the money and threatened to kill them.

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During investigation, statements of complainant and witnesses were recorded by the the Investigating Officer and he submitted charge sheet before the competent Court. Thereafter cognizance was taken on 20.7.2017.

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The contention of learned counsel for the applicants are that no offence against the applicants is disclosed and the present prosecution case has been instituted with malafide intention for the purposes of harassment.

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Learned A.G.A. has opposed by contending that all the submissions made by learned counsel for the applicants relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C.

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Considered the rival submissions made by the parties.

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The submissions made by learned counsel for the applicants calls for adjudication on pure questions of fact, which may be adequately adjudicated upon only by the trial court and while doing

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so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case.

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At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 and the recent being A.R.C.J. Vs. Nimra Cerglass Technics (P) Ltd. (2016) 1 SCC 348. Therefore, this Court does not deem it proper to have a pre-trial before the actual trial begins. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got a right of discharge by moving a proper application for the said purpose before the trial court and they are free to make all the submissions in the said discharge application before the Trial Court including those which have been canvassed by them before this Court in this application.

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In the case of L. Raja Krishna Reddy v. Satwik Drugs Ltd., Hyderabad, 1999 Cr.L.J. 4865(AP) it was held that the High Court in exercise of its inherent jurisdiction would not make any roving inquiry into the questions of fact and record any findings. Paragraph 5 and part of paragraph 6 are quoted below:-

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"5. This Court's inherent jurisdiction under Section 482 of the Code of Criminal Procedure (for short 'the Code') is well defined. The power of quashing a First Information Report or criminal proceeding has to be sparingly exercised by the Court with due regard to the guidelines laid down in this behalf. It is an extraordinary power that can be exercised by this Court only to prevent abuse of the process of any Court or otherwise to secure the ends of Justice. The Apex Court had laid down in State of Haryana v. Bhajan Lal, the categories of cases in which the First Information Report and the criminal proceedings may be quashed. They are:

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(i) Where the allegations made in the first information report or the complaint, even if they are 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;

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(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

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(iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and

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make out a case against the accused;

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(iv) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

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(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

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(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; and

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(vii) Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is mataciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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It is settled law that this Court in exercise of its inherent jurisdiction under Section 482 of the Code would not make any rovings inquiry into the questions of fact and record any findings. It is the duty of the of the trial Court...."

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Perusal of record shows that case of applicants does not fall in any of the conditions (i) to (vii) mentioned in case of Haryana v. Bhajan Lal (supra) so that it may be quashed.

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In the case of Maheswari Oil Mill v. State of Bihar, 1978 Cr.L.J. 659(Pat) it was held that the High Court will not enter into enquiry of disputed facts and thereafter hold in favour of the accused.

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Applicants have opportunity to challenge the order of cognizance taken by the Magistrate in revision before the competent Court. They have also right to make an application before the trial Court under Section 239 Cr.P.C. for discharge. Hence alternative remedy is also available in law for the applicants. Offence under Section 406 IPC is cognizable and non-bailable.

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In the case of Hamida vs. Rashid, (2008) 1 SCC 474 , it was held that ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after

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filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of justice.

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It is pertinent to mention here that till today applicants are neither on bail nor have moved application for bail before the competent Court which is mandate in law. Bail is being avoided by hook and crook by the applicants.

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Accordingly the prayer for quashing the charge-sheet as well as the proceedings of the aforementioned case is refused.

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At this juncture learned counsel for the applicants prayed that the applicants are ready to surrender before the court and to move bail applications and the court below be directed to consider their bail applications expeditiously in accordance with the law.

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Learned A.G.A. has no objection against the aforesaid prayer.

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However, it is directed that in case applicants appear/surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided expeditiously in accordance with law.

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In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measure shall be taken or given effect to.

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However, in case, applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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It is clarified that this order has been passed only with regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court.

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With the aforesaid observations this application is finally disposed off.

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Order Date :- 7.2.2018 P.P.

Mohd. Akram and Another v. State of U.P. and Another

Case brief

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Mohd. Akram and Another v. State of U.P. and Another

Case brief

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