Heard Mr. Amit Daga, learned counsel for applicants, learned A.G.A. for State and Mr. Hemendra Pratap Singh, learned counsel for opposite parties-2 and 3.

¶7

Perused the record.

¶8

At the very outset, learned counsel for applicants, contends that applicant-1 V.N. Karnani has died on 17.2.2015. A supplementary affidavit dated 6.3.2018 regarding above has also been filed along with which death certificate of applicant-1 has been appended. On the aforesaid premise, it is urged by learned counsel for applicants that he be permitted to delete the name of applicant-1 V.N. Karnani from the cause title of this application.

¶9

Prayer made by learned counsel for applicants is not opposed by learned A.G.A. representing opposite party-1-State as well as Mr. Hemendra Pratap Singh, learned counsel representing opposite parties-2 and 3.

¶10

Accordingly prayer made by learned counsel for applicants is allowed. Let necessary amendment in cause title of this application be carried out by learned counsel for applicants during course of the day.

¶11

This application under section 482 Cr.P.C. has been filed challenging entire proceedings of Criminal Case No. 4653 of 2014, (State of U.P. Vs. V.N. Karnani and another) initially registered as Criminal Case No. 775/12 of 2011, under sections 406 and 506 IPC, Police Station- Banna Devi, District- Aligarh, arising out of Case Crime No. 598 of 2011, under sections 420, 406, 506 IPC, P.S. Banna Devi, District Aligarh.

¶12

Record shows that applicant-1 V.N. Karnani and opposite party-2 Virendra Kumar Cial entered into an agreement dated 11.3.1992. The said agreement is an unregistered agreement. Photo copy of aforesaid agreement is on record at page68 of the paper book. Since controversy between parties emerges out of aforesaid agreement, therefore, same is reproduced herein under:

¶13

" This agreement entered into the 11th day of March, 1992, between Shri V.N. Karnani son of Later Shri D.R. Karnani, 19 Holdershill Road, London NW1 JP (England), hereinafter called the first party, who is running his company in U.K, M/s Marcus Ltd. Uni 7 Blackrook Industrial Estate Peartree Lane, Dudley

¶14

West Midlands DY 2 OXW United Kingdom as an importer. And Mr. Virendra Kumar Cial son of Shri Atma Ram Cial, Prop. of M/s Veekey Enterprises, Subhash Road, Aligarh-202001 (U.P) India, hereinafter called the second party and at present having supply of his firm M/S Marcus Ltd., U.K.

¶15

A verbal commitment has been made between both the parties on 19.3.1991 for the start of a new company in England as a style of Veekey Brass with this terms thawt the second party who is having his contact with the various suppliers of Aligarh and are capable to fulfilling the requirements of the goods from Aligarh with maintaining good quality at all times will charge 1% (one percent) in India from Mr. V.N. Karnani who will arrange to explored the business from England or some other countries also and both the parties ewill take share in "veekey Brass" which has to be form in England. For the satisfaction and remembrance and not to breach of commitment both the parties have agreed for made this agreeement and this will remain upto the supply of goods given to first party or his firm in England. Failing which the introduced supplier are liable to pay @ 1% to the second party at Aligarh.

¶16

In witness whereof this agreement made on the first written date and year."

¶17

According to first informant/opposite party-2, terms of aforesaid agreement were not honoured by applicant-1 who is a party to the agreement. Subsequently applicant-2 who is son of applicant-1, under the shadow of aforesaid agreement, has conducted business transactions which are detrimental to the interest of first informant/opposite party-2. In view of above, opposite party-2 filed an application dated 09.06.2011 under section 156(3) Cr.P.C before concerned Magistrate. Same came to be allowed vide order dated 7.7.2011, passed by concerned Magistrate. Resultantly, an F.I.R. dated 18.7.2011 which was registered as Case crime No. 598 of 2011, under sections 420, 406, 506 IPC, P.S. Banna Devi, District Aligarh came to be registered. In the aforesaid F.I.R., two persons namely, V.N. Karnani and Narendra Karnani, i.e. applicants herein, have been nominated as named accused.

¶18

After registration of above mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer examined first informant and other witness. On the basis of above and other material collected by Investigating Officer, during course of investigation, Investigating officer came to the conclusion that complicity of named accused is not established in the crime in question. Accordingly, Investigating Officer submitted police report dated 5.8.2011 in terms of section 173(2) Cr.P.C. (FR No. 152 of 2011).

¶19

Feeling aggrieved by aforesaid Police report, first informant/opposite party-2 filed protest petition. Concerned Magistrate, examined the matter. Upon evaluation of Police report and the papers accompanying the said police report, same was not accepted by concerned Magistrate and it was directed that matter be further investigated.

¶20

Pursuant to above, Investigating Officer again proceeded with further investigation of aforesaid case crime number, but again submitted a police report in terms of section 173 (2) Cr.P.C. (final report) dated 20.10.2011.

¶21

Feeling aggrieved by above noted police report, first informant/opposite party-2 again filed a protest petition. Concerned Magistrate, examined the matter and upon evaluation of police report and the material accompanying the police report, came to the conclusion that no offence as alleged in the F.I.R. is made out against applicants. Accordingly, concerned Magistrate, vide order dated 6.2.2013 accepted above mentioned police report dated 20.10.2019 (final report).

¶22

Feeling aggrieved by order dated 6.2.2013, passed by concerned Magistrate, first informant/opposite party-2 filed a criminal revision before District and Sessions Judge, Aligarh. Same was registered as Criminal Revision No. 134 of 2013, (Virendra Kumar Cial and Another Vs. State of U.P.), and came to be decided by Additional Sessions Judge, Aligarh vide order dated 31.7.2013, Revisional Court allowed the revision and remanded the matter before concerned Magistrate for decision afresh.

¶23

Pursuant to aforesaid order, concerned Magistrate, in exercise of its jurisdiction under section 190(1)(b) Cr.P.C. vide order dated 09.06.2014 took cognizance of the offence complained of upon police report and simultaneously, summoned the applicants.

¶24

Feeling aggrieved by aforesaid, applicants have now approached this court by means of present application under section 482 Cr.P.C.

¶25

Present application came up for admission on 11.8.2014 and this Court passed following order:

¶26

"Sri Akhilesh Srivastava, Advocate has filed parcha on behalf of opposite party no. 2, the same is taken on record.

¶27

Heard learned counsel for the applicants.

¶28

Learned A.G.A. has accepted notice on behalf of opposite party no. 1.

¶29

Issue notice to opposite party no. 3 returnable at an early date. Steps be taken within a week.

¶30

Counter affidavit to be filed within four weeks by the learned A.G.A. as well as opposite party nos. 2 and 3 and rejoinder affidavit to be filed within three weeks thereafter.

¶31

List thereafter.

¶32

In view of the specific averments made in paragraph nos. 5, 6, 13, 14, 15, 16, 17, 18, 19, 20, 29 of the affidavit accompanying the application under Section 482 Cr.P.C., prima facie, a case for grant of an interim relief is made out.

¶33

Until further orders of this Court, further proceedings of Case No. 4653 of 2014 (initially numbered as criminal case no. 775/12 of 2011), State Vs. V.N. Karnani and another, under Sections 406, 506 IPC, police station Banna Devi, District Aligarh pending before the court of Chief Judicial Magistrate, Aligarh shall remain stayed. "

¶34

17 Pursuant to order dated 11.8.2014, pleadings have been exchanged between parties.

¶35

Mr. Amit Daga, learned counsel for applicants invited attention of Court to the impugned order. With reference to the same, he contends that procedure to be adopted by concerned Magistrate upon submission of police report, now stands settled by Apex Court in Vishnu Kumar Tiwari Vs. State of U.P. and Another, 2019 (8) SCC 27. Placing reliance upon aforesaid judgement, learned counsel for applicants contends that Magistrate was required to look into the police report and entire material accompanying the police report to unearth as to whether offence complained of against accused is made out or not. However, while exercising jurisdiction under section 190(1)(b) Cr.P.C., concerned Magistrate has erroneously relied upon photocopies of document which admittedly do not fall within the term "evidence" as defined under Indian Evidence Act. He has then invited attention of Court to the recital contained in second paragraph at internal page-2 of the certified copy of impugned order which is at page-129 of the paper book. On basis thereof, he contends that concerned Magistrate instead of applying his own independent mind to the material on record, has simply taken cognizance on the basis of inadmissible evidence. It is thus sought to be urged that concerned Magistrate has been swayed by the observations made by revisional court. It is further contended that applicant-1 V.N. Karnani who is a signatory to the agreement dated 11.03.1992 has already died. Applicant-2 is not a signatory to the agreement which is the basis of prosecution case. Once pursuant to agreement dated 11.03.1992 which was a contingent contract, the resultant company, namely, M/s. Veekey Brass was not incorporated, no criminal proceedings could be initiated against applicants on account of breach of agreement dated 11.03.1992. Since applicant2 is not a signatory to the agreement dated 11.03.1992, no criminality can be said to have been committed by applicant-2 on account of alleged breach of conditions of agreement dated 11.03.1992. Consequently, Cognizance Taking Order/Summoning Order passed by concerned magistrate is manifestly illegal and arbitrary. It is further contended that applicant-1 has already died and therefore, no criminal proceedings can be initiated against applicant-1.

¶36

Concerned Magistrate, while exercising his jurisdiction under section 190(1) (b) Cr.P.C. has completely ignored aforesaid facts and has summoned applicants in view of order passed by revisional court. As such, impugned order cannot be sustained and therefore, liable to be quashed by this Court.

¶37

Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that order impugned in present application is perfectly just and legal. Concerned Magistrate has exercised its jurisdiction with due diligence. Applicants have been summoned after due examination of police report as well as entire papers accompanying the police report. As such, it cannot be said that court below has not exercised its jurisdiction diligently nor it can be said that Court below has summoned applicants in casual and cavalier manner. Submission urged by learned counsel for applicants relate to the disputed defence of applicant, which cannot be examined at this stage. At this stage, court is required to see that pima facie case is made out or not. As prima facie case is

¶38

made out, order impugned is not liable to be interefered with.

¶39

Mr. Hemendra Pratap Singh, learned counsel for opposite parties-2 and 3, has adopted the arguments raised by learned A.G.A.

¶40

Having heard Mr. Amit Daga, learned counsel for applicants, learned A.G.A. for State, Mr. Hemendra Pratap Singh, learned counsel representing opposite parties-2 and 3 and upon perusal of record, this Court finds that concerned Magistrate has proceeded to take cognizance and summon applicants by means of impugned order dated 9.6.2014. Perusal of order dated 9.6.2014 goes to show that concerned Magistrate has not considered the observations made by revisional Court vide order dated 31.7.2013. Concerned Magistrate has construed the order of the revisional court dated 31.07.2013 as a mandamus to summon the accused. Concerned Magistrate has not applied his own independent mind to the entire material accompanying the police report. There can be no quarrel with the proposition that concerned Magistrate upon examination of police report and papers accompanying the police report is not denuded of his jurisdiction to take cognizance under section 190(1)(b) Cr.P.C. However, same has to be exercised by concerned Magistrate only after recording his prima facie satisfaction that on the basis of material on record, offence complained of is made out against accused. However, in the present case, concerned Magistrate, instead of dwelling into the matter, that is the unregistered agreement and also the fact that pursuant to the agreement dated 11.03.1992, the consequential Company, namely, M/s. Veekar Brass was not incorporated, as such no resultant liability arose out of aforesaid agreement has proceeded to summon applicants. Admittedly, prosecution has been launched by first informant/opposite party-2 on the ground that opposite party-1 has infringed the terms of agreement dated 4.3.1992 and opposite party-2 in the shadow of aforesaid has undertaken business transactions detrimental to the interest of first informant. Order impugned in present application does not reflect that concerned Magistrate has dwelled into these questions which have a material bearing on the fate of prosecution. Moreover, as already noted above, concerned Magistrate has recorded his prima facie satisfaction on the basis of photocopies of documents which admittedly do not fall within the realm of evidence as defined in the Indian Evidence Act. Concerned Magistrate appears to have been swayed by the observations made by revisional court. Consequently, concerned Magistrate has failed to exercise his own independent discretion in the matter.

¶41

Apart from above, it is an undisputed position that applicant-2 is not a signatory to the agreement. Once applicant-2 is not a signatory to the agreement, then the basic prosecution story as unfolded in F.I.R. falls like a house of cards, inasmuch as, there was no entrustment or breach of contract on the part of applicant-2. Concerned Magistrate has not adhered to this aspect of the matter, while passing the impugned order dated 09.06.2014.

¶42

In view of above, this court is of the considered opinion that impugned Cognizance Taking Order/Summoning Order passed by Chief Judicial Magistrate in exercise of jurisdiction under Sections 190(1)(b) and 204 Cr.P.C.

¶43

cannot be sustained in law and fact. Accordingly, present application succeeds and is liable to be allowed. Impugned order dated 09.06.2014 passed by Chief Judicial Magistrate, Aligarh in Criminal Case No. 4653 of 2014, (State of U.P. Vs. V.N. Karnani and another) initially registered as Criminal Case No. 775/12 of 2011, under sections 406 and 506 IPC, Police Station Banna Devi, District Aligarh, arising out of Case Crime No. 598 of 2011, under sections 420, 406, 506 IPC, P.S. Banna Devi, District Aligarh is hereby quashed. Application is allowed. Chief Judicial Magistrate, Aligarh shall pass a fresh order in the light of observations made above.

¶44

Order Date :- 29.9.2021 Arshad

V.N. Karnani and Another v. State of U.P. and 2 Ors.

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V.N. Karnani and Another v. State of U.P. and 2 Ors.

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