C.R. Bharati v. Izhar Rana), under Section

1. Heard Sri Vishal Singh, learned counsel for the applicant, Sri N.K. Upadhyay, 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 with a prayer to quash summoning order dated 19.07.2022 passed by A.C.J.M. Court no.3, Ghaziabad and the entire criminal proceedings of Complaint Case No.3196 of 2016 (C.R. Bharati vs. Izhar Rana), under Section 406 IPC, Police Station-Sihani Gate, District-Ghaziabad. ₹

3. In the instant matter, O.P. no.2 has lodged complaint against the applicant on 28.08.2016 wherein it has been alleged that the applicant has taken a friendly loan of total 2,40,000/- from O.P. no.2 for the purpose of establishing/enhancing his business, which was given to him on his promise that he will return the borrowed amount and also the loan amount already taken from the complainant's son. When O.P. no.2 demanded the money back, the applicant not only refused to make the payment but also threatened him of dire consequences. ₹ ₹ ₹

3. Learned counsel for the applicants submitted that the applicant has entered into partnership deed with son of O.P. no.2 (deceased) and son of O.P. no.2 had taken loan of 2,40,000/- from him and after his death, when the applicant asked for his money from his father(O.P. no.2), he returned only 18,000/- out of the total outstanding amount of 18,80,000/-. He submitted that when the applicant demanded his balance amount back, O.P. no.2 has lodged a complaint against him with false and frivolous allegation. He next submitted that after adducing evidence in the complaint case, the court below has rejected the complaint vide order dated 07.03.2017, which was challenged by O.P. no.2 in criminal revision and the revisional court vide order dated 24.01.2020 has allowed the revision and matter was remanded back to the trial court. Thereafter, the trial court has passed summoning order on 19.07.2022, which has been assailed by means of instant application. He next submitted that the allegations made in the complaint are false and frivolous. He submitted that from perusal of complaint as well as statements recorded u/s 200 and 202 Cr.P.C, no offence under Section 406 IPC is made out against the applicant. The court below has failed to appreciate the evidence available on the record in its right perspective and wrongly summoned the applicant. He also pointed out certain documents in support of his contention.

4. Per contra, learned A.G.A. vehemently opposed the application and contended that there is no illegality in the summoning order passed by the court below. 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 :- 17.5.2025 Manish Himwan

1. Heard Sri Vishal Singh, learned counsel for the applicant, Sri N.K. Upadhyay, 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 with a prayer to quash summoning order dated 19.07.2022 passed by A.C.J.M. Court no.3, Ghaziabad and the entire criminal proceedings of Complaint Case No.3196 of 2016 (C.R. Bharati vs. Izhar Rana), under Section 406 IPC, Police Station-Sihani Gate, District-Ghaziabad. ₹

3. In the instant matter, O.P. no.2 has lodged complaint against the applicant on 28.08.2016 wherein it has been alleged that the applicant has taken a friendly loan of total 2,40,000/- from O.P. no.2 for the purpose of establishing/enhancing his business, which was given to him on his promise that he will return the borrowed amount and also the loan amount already taken from the complainant's son. When O.P. no.2 demanded the money back, the applicant not only refused to make the payment but also threatened him of dire consequences. ₹ ₹ ₹

3. Learned counsel for the applicants submitted that the applicant has entered into partnership deed with son of O.P. no.2 (deceased) and son of O.P. no.2 had taken loan of 2,40,000/- from him and after his death, when the applicant asked for his money from his father(O.P. no.2), he returned only 18,000/- out of the total outstanding amount of 18,80,000/-. He submitted that when the applicant demanded his balance amount back, O.P. no.2 has lodged a complaint against him with false and frivolous allegation. He next submitted that after adducing evidence in the complaint case, the court below has rejected the complaint vide order dated 07.03.2017, which was challenged by O.P. no.2 in criminal revision and the revisional court vide order dated 24.01.2020 has allowed the revision and matter was remanded back to the trial court. Thereafter, the trial court has passed summoning order on 19.07.2022, which has been assailed by means of instant application. He next submitted that the allegations made in the complaint are false and frivolous. He submitted that from perusal of complaint as well as statements recorded u/s 200 and 202 Cr.P.C, no offence under Section 406 IPC is made out against the applicant. The court below has failed to appreciate the evidence available on the record in its right perspective and wrongly summoned the applicant. He also pointed out certain documents in support of his contention.

4. Per contra, learned A.G.A. vehemently opposed the application and contended that there is no illegality in the summoning order passed by the court below. 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 :- 17.5.2025 Manish Himwan