High Court
Case Details
Neutral Citation No. - 2024:AHC:140494 Court No. - 76 Case :- APPLICATION U/S 482 No. - 26494 of 2024 Applicant :- Rishi Gihar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kuldeep Kumar Gupta Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
Legal Reasoning
1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. This application u/s 482 Cr.P.C. has been filed for quashing of entire proceedings, including charge-sheet dated 02.04.2021 and cognizance/summoning order dated 10.06.2021, of Case No. 2591 of 2021 (State Vs. Rishi Gihar), arising out of case crime no. 840 of 2020, under Sections 420, 406 IPC, P.S.- Kotwali Orai, District- Jalaun, pending in the court of Chief Judicial Magistrate, Jalaun at Orai. 3. It has been submitted by learned counsel for the applicant that the allegation made against applicant is wholly false and no prima- facie case is made out against the applicant. As per prosecution version, on pretext of providing a job to the informant, the applicant has taken an amount of Rs.1,50,000/- from informant and out of that, some amount was transferred in the account of brother of applicant and some amount was transferred in account of his maternal uncle. The allegation that applicant has shown a joining letter to the informant, is wholly false. The informant has not clarified that regarding which particular job, the applicant has promised. 4. It is further submitted that applicant cannot be prosecuted for both the offences i.e. under Sections 420 and 406 IPC. There is no evidence to constitute the ingredients of Section 406 IPC and no prima-facie case under Section 406 IPC is made out. In this connection, learned counsel has placed reliance upon case of Satyendra Sengar Vs. State of UP and Another (Application under Section 482 Cr.P.C. No.10874/2020), decided by co-ordinate Bench of this Court on 09.07.2020. 5. Learned A.G.A. has opposed the application and submitted that in view of allegations made in the first information report and material collected during investigation, a prima-facie case is made out against the applicant. 6. I have considered the rival submissions and perused the record. 7. Perusal of record shows that the informant has lodged first information report against applicant, alleging that the applicant has promised to provide him a job and on that pretext he took an amount of Rs.1,50,000/- from him. Out of that amount, some amount was transferred in account of the brother of applicant and Rs.25,000/- were transferred in the account of maternal uncle of applicant. The informant has further alleged that the applicant has even shown him a joining letter in order to take money from him. In view of allegations made in the first information report and material collected during investigation, it cannot be said that no prima-facie case is made out under Section 420 IPC. 8. However, so far offence under Section 406 IPC is concerned, the ingredients of Section 406 IPC are not made out on the basis of allegations made in the first information report and statement of witnesses. In case of Satyendra Sengar (supra), this court has considered the similar issue and held as under: "In this matter, as is evident from the record, applicant is named in the F.I.R. lodged by the informant at Police Station concerned for the offence under Sections 420 and 406 IPC. Allegation against the accused person is that they received some amount, as disclosed in the F.I.R., from the brother of the informant to provide government job. Despite the request having been made, neither the accused person provided employment nor returned the amount, instead, extended threat to implicate in false case. As per the F.I.R. informant prepared an audio call recording of the conversion made with accused person. If the submissions raised across the bar are compared with the facts and circumstances of the case, in the opinion of the Court, order taking cognizance and issuing summon for the offence under Section 406 IPC is not in accordance with law, as from a perusal of entire facts and evidence available on record it is evident that none of the ingredients of the offence under Section 405 IPC are available in the present matter to proceed with trial for the offence under Section 406 IPC. Mode of payment made in this matter cannot be equated with the ingredient entrustment as required for the offence under Section 406 IPC. Hence, cognizance / summoning order in respect of offence under Section 406 IPC is illegal and without application of judicial mind and same warrants interference by this Court. So far as the offence under Section 420 IPC is concerned, since essential ingredient of dishonest intention and inducement to prosecute the applicant for the said offence is available, there is no infirmity or illegality in the impugned order to this extent. As regards the law laid down in the cases relied upon by the learned counsel for the applicant are concerned, facts of K.L. Agarwal case (supra) and Vijay Sharma case (supra) are entirely different with the facts of the present matter. Hence, no benefit can be extended to the applicant on the basis of proposition laid down in the said cases. So far as the law laid down in Manju Devi case (supra) is concerned, prosecution started against the applicant for the offence under Section 420 IPC cannot be quashed at this stage as there is sufficient evidence collected by the Investigating Officer to proceed with trial. Law laid down in Manju Devi case (supra) cannot be applied in the present matter as there is clear evidence against the applicant regarding inducement as required under Section 420 IPC. In view of the above discussions, in my view, there is some substance in the submissions made by learned counsel for the applicant. The application is liable to be allowed in part and the impugned order dated 19.7.2019 passed by the concerned Magistrate so far as it relates to offence under Section 406 IPC is liable to be set-aside and proceeding of the aforesaid case in respect of the applicant to this extent is liable to be quashed. However, said impugned order dated 19.7.2019 so far as it relates to offence under Section 420 IPC against the applicant does not suffer from infirmity or illegality and is liable to be affirmed. Accordingly, the application is allowed in part and the impugned order dated 19.7.2019 passed by the concerned Magistrate in the aforesaid case so far as it relates to offence under Section 406 IPC is set-aside and proceeding of the aforesaid case in respect of the applicant to this extent is quashed. However, said impugned order dated 19.7.2019 so far as it relates to offence under Section 420 IPC is affirmed and proceeding against the applicant in this respect shall go-on." 9. Considering the facts of the matter and above referred position of law, it appears that ingredients of offence under Section 406 IPC are not made out, hence the summoning of applicant for offence under Section 406 IPC is not in accordance with law. 10. Accordingly, the summoning of applicant for offence under Section 406 IPC is set aside. The impugned summoning order dated 10.06.2021 stands altered to this extent. The case under Section 420 IPC shall proceed against the applicant in accordance with law. 11. The instant application u/s 482 Cr.P.C. is disposed of accordingly. Order Date :- 31.8.2024 SP/-