High Court
Case Details
Neutral Citation No. - 2024:AHC:135305 Court No. - 91 Case :- APPLICATION U/S 482 No. - 27688 of 2024 Applicant :- Dharm Deo Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Virendra Kumar Shukla Counsel for Opposite Party :- G.A. Hon'ble Prashant Kumar,J.
Legal Reasoning
been filed. It is further submitted that the Court below has rightly summoned the applicant and no interference is required by this Court in the impugned order as well as the on going proceedings. 5. From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court. 6. Hon'ble Supreme Court in the matter of State of Haryana Vs. Bhajan Lal 1992 Supp (1) SCC 335 has laid down the guidelines under which circumstances the Court should, in its inherent power, entertain an application under Section 482 Cr.P.C. The guidelines are as follows:- "(i) 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. (ii) 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. (iii) 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. (iv) 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. (v) 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. (vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party. (vii) Where a criminal proceeding is manifestly attended with mala fides 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 to private and personal grudge." 7. Further, the Hon'ble Supreme Court in the cases of M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, and lastly, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 has held that only those cases in which no prima facie case is made out can be considered in an application under Section 482 Cr.P.C. 8. The instant application does not fall under the guidelines laid down by the Hon'ble Supreme Court in the judgments mentioned above, and followed in a number of matters. Moreover, the facts as alleged cannot be said that, prima facie, no offence is made out against the applicant. It is only after the evidence and trial, it can be seen as to whether the offence, as alleged, has been committed or not. 9. Hence, the instant application filed under Section 482 Cr.P.C. cannot be entertained and is, accordingly, dismissed. Order Date :- 22.8.2024 S.P.
Arguments
1. Heard Sri Virendra Kumar Shukla, learned counsel for the applicant Sri Jyoti Kumar Singh, learned A.G.A. for the State-O.P. no.1 and perused the record. 2. The present application under Section 482 Cr.P.C. has been filed by the applicant praying for quashing the entire criminal proceedings of Criminal Case No.71519 of 2023 (State v. Dharm Deo Yadav), arising out of Case Crime No.0399 of 2022, under Section 406 IPC, Police Station-Kotwali, District Ghazipur, pending in the Court of Chief Judicial Magistrate, Ghazipur. 3. Facts as stated in the FIR are that the opposite party no.2 has allegedly paid Rs.4 lacs cash to the applicant, Rs. 3,74,000/- plus Rs.8,22,000/- credited in his account and Rs.48,000/- were transferred in the account of one Sanjay Srivastava on the instruction of the applicant as the applicant has offered to sell 3 biswa land, when opposite party no.2 tried to contact the applicant, he was not traceable and his mobile was switched off. The opposite party no.2 having no other option lodged the present FIR. 3. Learned counsel for the applicant submits that the alleged transactions are of the year 2016 and the money was transferred to different accounts on different dates. There is no evidence with regard to the cash transaction, which makes the entire prosecution doubtful. The F.I.R. has been lodged for recovery of money, which is not permissible under the law. He further submits that the applicant has never committed any offence as alleged against him. Further submission is that no offence against the applicant is disclosed and the court below has utterly failed to consider as no prima facie case is made out against the applicant. 4. Per contra, learned A.G.A. vehemently opposed the application and contends that after taking money from opposite party no.2, the applicant has refused to execute the sale deed of the land, which was promised by him. He further submits that after thorough investigation charge sheet has