Dismissed

Rajesh Kumar Mishra v. State of Up and Another

Allahabad HC9 Sept 2024A482/16498/2024

Case brief

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What is this about?

Applicant sought quashing of cognizance and summoning orders in a cheating and criminal breach of trust case concerning a sale deed allegedly executed by exploiting a mentally weak person. The High Court found prima facie allegations supported by FIR and investigation material and dismissed the application.

What the court decided

AI extract

Rajesh Kumar Mishra Vs State of Up and Another — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:147259

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Court No. - 76

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Case :- APPLICATION U/S 482 No. - 16498 of 2024

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Applicant :- Rajesh Kumar Mishra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Prashant Kumar Tripathi Counsel for Opposite Party :- G.A.,Manoj Yadav

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Hon'ble Raj Beer Singh,J.

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Heard learned counsel for the applicants, learned counsel for the informant/opposite party no.2, learned A.G.A. for the State and perused the material brought on record.

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This application under Section - 482 Cr.P.C. has been filed for quashing of the cognizance/summoning order dated 02.06.2023 as well as order dated 22.04.2024, passed by the learned Additional Chief Judicial Magistrate Ist, Ballia in Case No. 4744 of 2023 (State vs. Narsingh Upadhyay and Others), arising out of Case Crime No. 248 of 2021, under Sections - 406, 420, 120-B I.P.C., Police Station- Rasara, District- Ballia.

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It is submitted by learned counsel for applicant that impugned summoning order is against facts and law and thus, liable to be set aside. The applicant is a bonafide purchaser of the disputed property and that sale-deed was executed in name of applicant and co-accused Narsingh Upadhyay by paying due consideration amount. Applicant has transferred an amount of Rs. 9 lakhs in the name of vendor namely Shashimauli Upadhyay as consideration amount. There is no evidence that applicant has withdrawn the said amount from the account of vendor Shashimauli Upadhyay. Even as per prosecution version alleged bank account of Shashimauli Upadhyay was got opened by the co-accused Narsingh Upadhyay. No amount has been transferred into account of applicant. It was submitted that in fact applicant was also cheated by said Narsingh Upadhyay and in that regard the applicant has already filed a complaint against him. The dispute between the parties is civil in

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nature. Referring to facts of the matter, it was submitted that applicant is a bonafide purchaser and no prima facie case is made out against him.

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Learned A.G.A. and learned counsel for the informant have opposed the application and submitted that brother of informant, namely, Shashimauli Upadhyay was not mentally sound and that the applicant and co-accused persons have got opened his account in the bank by using forged documents and that on pretext of lease of his land, the sale deed of his property was got executed from said Shashimauli Upadhyay in favour of applicant and co-accused Narsingh Upadhyay. The amount transferred into account of Shashimauli Upadhyay as consideration amount was got withdrawn by the accused persons and through company namely 'Radhamani Infra Project Pvt. Ltd. Ghazipur.' Statement of Shashimauli Upadhyay was referred and it was submitted that from his statement it is clear that applicant was involved in cheating and that sale-deed of the property of said Shashimauli Upadhyay was got executed by way of cheating and fraud and no consideration amount has been paid. Referring to facts of the matter, it was submitted that a prima facie case is made out against applicant.

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I have considered the rival submissions and perused the record.

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It is well settled that at the stage of cognizance and at the stage of issuing process to the accused, the Magistrate / Court has to be satisfied that there is sufficient ground for proceeding. The court has to consider whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons, particularly when the cognizance is being taken on the basis of report filed by the police after investigation, under section 173(2) Cr.P.C. In S.K. Sinha, Chief Enforcement Officer v. Videocon International Limited and Ors. MANU/SC/7011/2008 : (2008) 2 SCC 492, it was held that taking cognizance has no esoteric or mystic significance in criminal law and it connotes that a judicial notice is taken of an offence, after application of mind. Taking of cognizance is thus a condition precedent for holding a valid trial. In M/s. India Carat Pvt. Ltd.

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Vs. State of Karnataka MANU/SC/0349/1989: 1989(26) ACC 280 (SC), the Supreme Court has observed that Magistrate can take into account statements of witnesses examined by Police during investigation, take cognizance of offence complained of, order to issue a process to accused.

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In Mehmood Ul Rehman v. Khazir Mohammad Tunda and others (2015) 12 SCC 420, it was held that under Section 190(1)(b) Cr.P.C, the Magistrate has the advantage of a police report and under Section 190(1)(c) Cr.P.C., he has the information or knowledge of commission of an offence but the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The application of mind has to be indicated by disclosure of mind on the satisfaction.

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Thus, in so far as taking cognizance based on the police report is concerned, the Magistrate/ court has the advantage of the charge sheet, statement of witnesses and other evidence collected by the police during the investigation. For issuance of process against the accused, only it has to be seen whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defenses. Likewise, possible defences need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. In this connection a reference may also be made to case of Nupur Talwar v. Central Bureau of Investigation and another (2012)11 SCC 465.

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In the instant matter, perusal of record shows that informant has lodged first information report against applicant and co-accused persons, alleging that his brother Shashimauli Upadhyay is a person of low understanding. In November,

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2020 co-accused Narsingh Upadhyay and Laxmikant Upadhyay took Shashimauli Upadhyay with them on pretext of providing him a job and later on told that Shashimauli Upadhyay has been provided job in Railway department. A bank account of Shashimauli Upadhyay was also got opened in HDFC bank by using mobile phone of co-accused Narsingh Upadhyay. On 03.04.2021 Shashimauli Upadhyay was got freed from the detention of accused persons from the house of co-accused Narsingh Upadhyay and it was revealed that co-accused Narsingh Upadhyay, Laxmikant Upadhyay and applicant-accused Rajesh Kumar Mishra and other co-accused persons have got executed sale-deed of the land of Shashimauli Upadhyay on 28.12.2020 and the amount transferred into account of Shashimauli Upadhyay was got withdrawn by the accused persons. The A.T.M. card of the bank account of Shashimauli Upadhyay was used by the accused persons. An amount of Rs. 11 lakhs was transferred from account of Shashimauli Upadhyay to the account of 'Radhamani Infra Project Pvt. Ltd. Ghazipur'. Some amount was transferred into account of co-accused Narsingh Upadhyay. It was alleged that the sale-deed of the property of Shashimauli Upadhyay was got executed by applicant and co-accused persons by taking undue advantage of his mental condition. In his statement, Shashimauli Upadhyay has alleged that on pretext of providing a job to him, coaccused Narsingh Upadhyay along with applicant-accused Rajesh Kumar Mishra have got opened his bank account in H.D.F.C. bank and they took him to Kutchery and his signature and thumb impression were obtained and his signatures were also obtained on blank cheques. Later on he came to know that applicant and coaccused Narsingh Upadhyay have got registered a sale deed of his property and the amount transferred into his account was also withdrawn by them. Said Shashimauli Upadhyay has clearly alleged that the sale-deed was got executed by way of cheating and fraud. It is not disputed that said sale-deed was executed in the name of applicant and co-accused Narsingh Upadhyay. In view of all these facts, it can not be said that no prima facie case is made out against applicant. The submissions raised by learned counsel for the applicant call for determination on questions of fact, which may adequately be discerned/adjudicated only by the trial court. Even

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the submissions made on point of law can also be more appropriately gone into by the trial court. In view of allegations made in the first information report and the material collected during investigation, it cannot be said that no prima facie case is made out against the applicant. Thus, no case for quashing of impugned orders is made out.

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The application under section - 482 Cr.P.C. is hereby dismissed .

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Order Date :- 10.9.2024 S Rawat

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Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad

Rajesh Kumar Mishra v. State of Up and Another

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Rajesh Kumar Mishra v. State of Up and Another

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