Sunil Agarwal Vs State of Up and Another

The instant criminal revision has been filed against the impugned order dated 16.11.2023, passed by the learned Judge, Small Cause Court/Criminal, Moradabad, in Complaint Case No. 2626 of 2014 (Tanbir Husain vs. Sanjay Rastogi and others), under Sections 420, 468, 471, 504, and 506 I.P.C., Police Station Mughalpura, District Moradabad, whereby the discharge application under Section 245(2) Cr.P.C. filed by the revisionist has been rejected.

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Learned counsel for the revisionist submits that the impugned order dated 16.11.2023, passed by the learned Judge, Small Cause Court/Criminal, Moradabad, is illegal and liable to be set aside. The discharge application has been rejected without proper application of judicial mind. The trial court, while deciding the discharge application, failed to consider the specific plea taken by the revisionist that the receipt filed by the complainant is only a photocopy and the original has not been produced; hence, such photocopy is not admissible under the Evidence Act.

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It is further submitted that the revisionist neither issued the said receipt in the name of Sanjay Rastogi nor was any courier dispatched from his company to America. The said receipt is forged and fabricated. The revisionist did not know Sanjay Rastogi and has no concern with him; he has

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been falsely implicated. From a perusal of the complaint as well as the statements, not a single reason has been stated as to why, if the courier was not delivered, the complainant did not meet Sanjay Rastogi. If any forgery was committed, the responsibility lies with Sanjay Rastogi and not with the revisionist. Neither did the complainant book any courier from the revisionist's company, nor did the revisionist issue any receipt in favour of the complainant. From a perusal of the alleged receipt, no address of the revisionist's company is mentioned therein. It is a forged document, either prepared by Sanjay Rastogi or by the complainant; the revisionist has no concern with the said courier receipt. The revisionist did not make any wrongful gain for himself or for any other person, nor did he cause wrongful loss to any person. No offence under Sections 420, 468, 471, 504, or 506 I.P.C. is made out against the revisionist, as he has not committed any offence as alleged in the impugned complaint.

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Learned counsel appearing for opposite party no. 2 has opposed the revision and contended that the revisionist, in collusion with Sanjay Rastogi, committed the offence and is not entitled to discharge.

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The original complaint filed by opposite party no. 2, Tanvir Husain, states that he had registered a firm in the name of "Overseas," through which he carries on export business. On 01.04.2014, one Sanjay Rastogi, son of unknown parentage, resident of Govind Nagar, Gali No. 5, opposite Mohan Merchant, Police Station Katghar, Moradabad, approached the complainant and stated that he arranges foreign orders for export firms and works as a buying agent. He further stated that the name of his company is "SNR Export" and that he procures large orders for reputed firms.

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As the complainant had recently started his business and wanted to expand it, he inquired about the terms and conditions for obtaining orders through his company. Sanjay Rastogi stated that he would charge 10% commission on each order and that the complainant would have to bear the courier expenses for sending samples. He assured the complainant that within one or two months he would secure large orders. The terms were settled accordingly.

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Thereafter, on 03.04.2014, the complainant withdrew Rs. 5,000/- from his current account (United Bank of India, Account No. 0932050003150, Cheque No. 762863) and paid the same in cash to Sanjay Rastogi towards registration charges. After taking the said registration fee, Sanjay Rastogi allegedly misappropriated a total sum of Rs. 5,38,280/- from the complainant, the details of which are supported by bank statements and a handwritten list annexed as Annexures 1 to 9 with the complaint.

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11. It is further alleged that Sanjay Rastogi sent fake emails purportedly from an American email address, "[email protected]," to the

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complainant through his own email ID, "[email protected]," and continued to mislead, blackmail, and defraud the complainant. Copies of such emails are annexed as Annexures 10 to 28.

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On 02.09.2014, Sanjay Rastogi emailed the complainant stating that the samples had been approved by an American party and that a large order was likely to be received soon, and requested that all samples be sent to America through courier at the earliest. Acting on his instructions, the complainant prepared three cartons containing 12 pieces, weighing 95.500 kg, and handed them over to Sanjay Rastogi. The value of the goods was Rs. 25,000/-. Sanjay Rastogi allegedly took Rs. 61,365/- in cash as courier charges and assured that he would dispatch the goods and provide the receipt.

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Subsequently, he provided a photocopy of a receipt of a courier service named "Team Express Worldwide Service." When the complainant examined the receipt, he found that the address of the consignee in America was incomplete, which raised suspicion that no courier had actually been sent. The complainant then visited the courier company and met its proprietor, Sunil Agarwal, who admitted that the receipt format belonged to their company but stated that no consignment had been dispatched through it. He further stated that whatever had been done was done by Sanjay Rastogi and asked the complainant to take up the matter with him. Copies of the receipts are annexed as Annexures 29 and 30.

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It is further alleged that Sanjay Rastogi used to misappropriate goods in the name of sending consignments abroad and embezzle money on the pretext of courier charges, supported by receipts annexed as Annexures 31 and 32, and that courier staff were also involved.

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On 05.12.2014, at about 9:30 a.m., the complainant, along with his father Tabassur Hussain and supervisor Mohammad Arif, went to the residence of Sanjay Rastogi and demanded the return of the money, alleging that he had been cheated. It is alleged that Sanjay Rastogi behaved abusively, used filthy language, and threatened to kill the complainant if he was seen there again.

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Accordingly, it was prayed that the accused persons be summoned and punished under Sections 420, 466, 468, 470, 471, 474, 323, 504, and 506 I.P.C.

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The revisionist filed a discharge application, which was rejected by the learned trial court. Hence, the present criminal revision has been filed.

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From a perusal of the record, it is evident that the genesis of the case arises from the complaint filed by opposite party no. 2. All the allegations in

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the complaint are primarily against Sanjay Rastogi. All negotiations, payments, and assurances are alleged to have been made by Sanjay Rastogi. In the complaint, no specific allegation has been made against the revisionist.

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The Supreme Court in Sanjay Kumar Rai Vs. State of U.P. and another; 2022 (5) SCC 720 by Three Judges Bench, (Authored by Hon. Surya Kant, J) held as under:-

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"12. At the outset, we may note that the High Court has dismissed the Criminal Revision on the ground of lack of jurisdiction under section 397 of Cr.P.C. The High Court did not examine the issue in detail to find out whether the continuation of proceedings will amount to abuse of process of law in this case. The impugned order cites the decision of this Court in Asian Resurfacing (supra) wherein it was noted as under:

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"Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C.or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re- appreciate the matter."

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13. It appears to us that while limiting the scope of a criminal revision to jurisdictional errors alone, the High Court apparently underappreciated the Judgment in Asian Resurfacing (supra). We say so at least for two reasons. First, the material facts in the abovecited case dealt with a challenge to the charges framed under the Prevention of Corruption Act, 1988 ("POCA"). The cited judgment itself enlightens that not only is POCA a special legislation, but also contains a specific bar under Section 19 against routine exercise of revisional jurisdiction. Second, This Court in Asian Resurfacing (Supra) while expressing concern regarding the need to tackle rampant pendency and delays in our criminal law system, followed the ratio laid down in an earlier decision in Madhu Limaye V. State of Maharashtra as can be seen from the following extract: "

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27. Thus, even though in dealing with different situations, seemingly conflicting observations may have been made while holding that the order framing charge was interlocutory order and was not liable to be interfered with under Section 397(2) or even under Section 482 CrPC, the principle laid down in Madhu Limaye [Madhu Limaye V. State of Maharashtra, (1977) 4 SCC 551: 1978 SCC (Cri) 10] still holds the field. Order framing charge may not be held to be purely an interlocutory order and can in a given situation be interfered with under Section 397(2) CrPC or 482 Cr.P.C. or Article 227 of the Constitution which is a constitutional provision but the power of the High Court to interfere with an order framing charge and to

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grant stay is to be exercised only in a exceptional situation."

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14. In Madhu Limaye (supra) , this Court authoritatively held:-

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"9... Sometimes the revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in Court.

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10. ....Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercises for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial.

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15. The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. That apart, this Court in the abovecited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its aforestated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law.

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16. Further, it is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [ Union of India V. Prafulla Kumar Samal].Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be. It is also held that discharge is a valuable right provided to the accused."

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It is held by the Hon'ble Supreme Court in Dr. Anand Rai Vs. State of

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Madhya Pradesh and another; 2026 INSC 141 . In paragraph no. 21 it held as under:-

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"Before parting with the matter, it is observed that at the stage of framing of charge or considering discharge, the Court is not dealing with an abstract legal exercise. It is dealing with real people, real anxieties, and the real weight of criminal prosecution. Judicial responsibility at this stage calls for care, balance, and an honest engagement with the facts on record. The power to frame a charge is not meant to be exercise by default or out of caution alone. When the material placed before the Court, take at the face value, does not disclose the ingredients of an offence, the law expects the Court to have the clarity and courage to say so and to keep such a case aside."

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In view of all these facts and in view of the law laid down by the Hon'ble Supreme Court, the impugned order dated 16.11.2023 is liable to be set aside and same is hereby set aside. Learned trial court is directed to reconsider the application for discharge afresh in accordance with law.

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With these observation, the present criminal revision is finally disposed of.

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February 24, 2026 M. Tarik

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(Abdul Shahid,J.)

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Digitally signed by :- MOHD TARIK High Court of Judicature at Allahabad

Sunil Agarwal v. State of Up and Another

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Sunil Agarwal v. State of Up and Another

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