Disposed

Anil Kunchchal and 5 Ors. v. State of U.P. and Anr.

Allahabad HC5 Oct 2018A482/35181/2018

Case brief

AI extract

What is this about?

On an application under Section 482 Cr.P.C., the High Court declined to quash criminal proceedings on merits due to extensive factual disputes. The dispute was remanded to the trial court for factual adjudication and mediation, while granting the applicants time to file a discharge application without coercive action. The judgment explicitly declined to decide the matter on substantive grounds.

What did the court decide?

Application under Section 482 Cr.P.C. disposed of without deciding on merits; applicants directed to file discharge application within one month; no coercive action to be taken for six weeks or till d

Anil Kunchchal and 5 Ors. Vs State of U.P. and Anr. — Cheating and Forgery | Allahabad HC (2018)

¶1

Court No. - 42

¶2

Case :- APPLICATION U/S 482 No. - 35181 of 2018

¶3

Applicant :- Anil Kunchchal And 5 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Ashwaini Mishra Counsel for Opposite Party :- G.A.

¶4

Hon'ble Arvind Kumar Mishra-I,J.

¶5

Heard learned counsel for the applicants, learned AGA for the State and perused the record.

¶6

By way of the instant application, the applicants have sought for quashment of the entire proceeding in Complaint Case No.527 of 2018, under Sections 420, 468, 471, 120B, 504, 506 I.P.C., pending before the Additional Chief Judicial Magistrate, Court No.1, Moradabad.

¶7

The present applicants numbering 6 in all are the Directors, Panchsheel Colonizers Pvt. Ltd. Upper to Red Well Tailor Shop U/5 M.I. Road, Jaipur. They are confronted with the summoning order dated 17.07.2018 passed by the Additional Chief Judicial Magistrate, Court No.1, Moradabad in Complaint Case No.527 of 2018 Smt. Alia Wasim Vs. Shivraj Singh Chauhan and others whereby the applicants have been summoned under Sections 420, 468, 471, 120B, 504, 506 I.P.C. The averments made in the complaint qua cheating committed by the aforesaid directors round up facts that the complainant paid/invested Rs.1,02,90,000/- with the company by account payee cheque of the bank concerned at Moradabad from 01.08.2009 to 03.04.2010.

¶8

The allegation is that the directors of the company in spite of receiving money carried out no construction work as was required of them in order to develop the land for colony. They are conspiring with each other. That way, the complainant claims that she has been duped of her money and nothing has been done by the directors of the company, therefore, they be prosecuted under the aforesaid sections of I.P.C.

¶9

While fact contention has been floated, it has been claimed that initially this is not the forum where the present controversy should be agitated, for the reason that though there is no arbitral clause specified in the agreement entered into between the complainant and the company, still each agreement entered into by the company and also with the complainant or others can be questioned by resorting to the provisions of Real Estate Settlement Procedure Act. The complainant instead resorting to the provisions of the aforesaid Act straightway moved a highly motivated complaint to the harassment of the applicants and the company.

¶10

Fact is that the daughter of the complainant filed a complaint before the Registrar (Companies) wherein notices were issued and the present directors / company replied to the notice whereupon proceeding initiated before the Registrar (Companies) was dropped. Once the complainant failed to obtain any relief and her endeavour failed to evoke any response in her favour, the complainant mischievously has lodged the present baseless complaint which has affected smooth functioning of the company itself and a number of investors who have also invested their money for work have suffered a lot.

¶11

Contention was stretched to the ambit that the entire installments as agreed upon to be paid by the complainant has not been paid. The complainant herself violated terms and conditions of the agreement when she did not pay 90% of the agreed amount of land - as the cost, therefore, she alone is to be blamed for her own inaction and not the company.

¶12

However, learned counsel for the applicants has submitted that the complainant along with others numbering 43 shall be given 43 plots and whatever difficulties are there, that will be sorted out and the company is willing to handover the plots to them. He also added that the plots could not be handed over in time because Writ Petition (PIL) No.1554 of 2004 Gulab Kothari Vs. State of Rajasthan was filed before the High Court of Rajasthan wherein directions were issued staying

¶13

the proceeding with regard to conversion of the land. Therefore, things were stopped for the time being. This being special circumstance, the company could not proceed with work unless and until worthy direction was received from the High Court of Rajasthan.

¶14

Learned AGA has opposed the prayer for quashment of the summoning order and submitted that the summoning order is just and legal which requires no interference by this Court.

¶15

Considered the rival submissions.

¶16

The contention raised by the learned counsel for the applicant is based on purely factual aspect of this case. It is admitted that both the parties have entered into agreement but something fishy surfaced which polluted the ongoing process of handing over and taking over of the plots in question thus giving rise to the instant trouble. The point is that can such enormous and gorgeous factual aspect be appreciated and adjudicated upon by this Court at this stage. The answer is certainly in the negative.

¶17

The contention raised by the applicants before this Court can be placed before the lower court concerned by the applicants and the court concerned will consider the same on its factual merit and will pass appropriate order. In case the applicants are willing to handover the plot in question, provided the complainant complies with the terms and conditions of payment as per the agreement then amicable settlement of the dispute can be well expected between the parties and the lower court concerned may pay a pivotal role as mediator.

¶18

Therefore, under the facts and circumstances of the case, it would not be appropriate to dispose of this application on merits. However, it would be on the safe side of both the parties, particularly the applicants that they may put their case by moving an application before the court concerned and they may also claim discharge before the court concerned, if they so wish.

¶19

It is provided that in case the applicants move discharge application either personally or through counsel within one month, the same shall be considered and disposed of by the court concerned by speaking and reasoned order after affording opportunity of hearing to the complainant within a period of six weeks from the date of production of the certified copy of this order.

¶20

Till disposal of the application or six weeks after the application is moved for discharge whichever is earlier, no coercive action shall be taken against them.

¶21

However, in case no such application is moved within the stipulated period the court concerned shall be free to proceed further with the case in accordance with law.

¶22

It is clarified that nothing has been observed on merits of the case and gateway is open for the court below to consider the factual merit of the case in case the applicants agitate their claim before it.

¶23

With the above direction, the instant application under Section 482 Cr.P.C. is finally disposed of.

¶24

Order Date :- 5.10.2018

¶25

rkg

Anil Kunchchal and 5 Ors. v. State of U.P. and Anr.

Case brief

What is this about?

What did the court decide?

Anil Kunchchal and 5 Ors. v. State of U.P. and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Virendra Yadav Vs State of U.P. and Another

Sita Ram Chauhan and 3 Others Vs State of U.P. and Another

Shiv Ji Prasad Gupta Vs State of U.P. and Another

Sonu @ Shailendra Vs State of U.P.

Hari Singh Vs State of U.P.

Harman Singh Vs State of U.P.