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

Court No. - 90 Case :- APPLICATION U/S 482 No. - 28559 of 2023 Applicant :- Mohd. Tariq Opposite Party :- State of U.P. and Another Counsel for Applicant :- Vijay Kumar Rai Counsel for Opposite Party :- G.A.,Anil Kumar Hon'ble Dinesh Pathak,J.

¶1Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶2The present applicants have invoked the inherent power of this Court under Section 482 Cr.P.C. beseeching the quashing of summoning order dated 19.04.2023 passed by the learned Chief Judicial Magistrate, Shahjahanpur in Complaint Case No.28871/2022 (A.K.C. Auto Pvt. Ltd. Bareilly Modh vs. Mohd. Tariq), under Section 408 I.P.C., Police Station Kotwali, District Shahjahanpur.

¶3Opposite party no.2 has moved an application dated 10.08.2022, under Section 156 (3) Cr.P.C. levelling allegation of criminal breach of trust against the present applicant with an averment that he has been appointed as a Sale Executive in the Firm, however, at a later stage, he has been posted as a Sales Manager at the Branch in District Lakhimpur. However, he has dishonestly embezzled the account of the Firm and also misplaced some goods from the workshop. He has committed fraud while recovery of money from the clients. Learned Magistrate, having considered the contents of the complaint and statement of complainant under Section 200 Cr.P.C. and statement of witnesses under Section 202 Cr.P.C. has issued process against the present applicant under Section 408 I.P.C., vide order impugned dated 18.05.2023, which is under challenge before this Court.

¶4It is submitted by learned counsel for the applicant that false and malicious prosecution has been instituted against the present applicant for fetching money from him. No such incident took place as mentioned in the complaint and he has never committed any criminal breach of trust being an employee of firm as mentioned in the complaint.

¶5Per Contra learned A.G.A. as well as learned counsel for the opposite party no.2 have vehemently opposed the submissions as raised by learned counsel for the applicant and supported the summoning order dated 19.04.2023.

¶6Having considered the rival submissions advanced by learned counsel for the parties and perusal of record, it is manifested that opposite party no.2 has unequivocally narrated the allegations levelled against the present applicant in its complaint. PW-1 Mr. Narayan Babu Saxena, who is an auditor in A.K.C. Firm and PW-2 Mr. Amit Kumar Saxena, who is a Sales Manager in the Firm have unequivocally made allegation against the present applicant for the embezzlement of Firm's fund. As an employee of the Firm, present applicant has dishonestly discharged his duty being a Sales Manager, therefore, primafacie, the complicity of the present applicant in the commission of crime as narrated in the complaint cannot be ruled out. The innocence of the present applicant, as is being put forward by learned counsel for the applicant, is a matter of scrutiny which can more appropriately be adjudicated upon by the court concerned after appraising the evidence on record. At this juncture, in exercise of inherent jurisdiction under Section 482 Cr.P.C., this Court is not expected to conduct a mini trial to infer the innocence of the present applicant in the commission of alleged crime.

¶7Record reveals that learned counsel for the applicant has raised disputed question of fact qua involvement of present applicant in the incident in question.

¶8In exercise of inherent power under Section 482 Cr.P.C., this Court is not expected to analyze the factual evidence which is to be placed before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court.

¶9It has been held by the Apex Court in the cases of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others : 1992 Supp (1) SCC 335; Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors. : (1999) 8 SCC 686 3; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Joseph Salvaraj A. Vs. State of Gujarat and Ors. :

(2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706 that exercise of inherent power of the High Court under Section 482 of the Code of Criminal Procedure is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception.

¶10In the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, Hon'ble Supreme Court has made the following observation in Paragraph 61 which is quoted herein below :- "61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guideline en-grafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court."

¶11In Criminal Appeal No. 675 of 2019 arising out of SLP (Crl.) No. 1151 of 2018, Mohd. Allauddin Khan v. State of Bihar and others, 2019 (6) SCC 107, the Apex Court has held that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. The same view has also been reiterated in judgment dated

31.07.2019 passed by Apex Court in Criminal Appeal No.1082 of 2019, arising out of SLP (Crl.) No.10762 of 2018, Chilakamarthi Venkateswarlu and Another v. State of Andhra Pradesh and Another.

¶12In the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. Criminal Appeal No(s). 296 of 2021 (Arising out of SLP(Crl.) No(s). 6364 of 2019] (judgment dated March 10, 2021) : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. has held as follows: "23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirely shall have to be examined on the basis of the allegation made in the complaint/ FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.

¶13The scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in detail by Hon'ble Apex Court in State of Haryana and Others Vs. Bhajan Lal and Others, (1992 Suppl (1) SCC 335). The relevant para is mentioned hereunder:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) 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.

(2) 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.

(3) 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 make out a case against the accused.

(4) 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.

(5) 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.

(6) Where there is an express legal bur engrafted in any of the provisions of the Code on 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.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due 10 private and personal grudge."

¶14It has been further elucidated recently by Hon'ble Apex Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and Others, 2020 SCC Online SC 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length.

¶15Further, in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in AIR 2021 SC 1918, Full Bench of the Apex Court while considering the powers of quashing under Section 482 of the Criminal Procedure Code and/or Article 226 of the Constitution of India has illustrated the circumstances under which quashing of a criminal case can be done and/or interim order can be granted.

¶16Therefore, the disputed defence of the accused cannot be considered at this stage. In absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing the same is not sustainable in the eyes of law. I do not see any abuse of the court's process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.

¶17Having considered the rival submissions advance by learned counsel for the applicant and learned AGA and the material available on record, in the light of dictum of Hon'ble Apex Court as discussed above, no ground is made out to consider the merits of the instant case. As such, prayer of quashing as made in instant application is hereby refused.

¶18Accordingly, the present application under Section 482 CrPC is hereby dismissed. Order Date :- 1.11.2023 Jitendra High Court of Judicature at Allahabad