Neeraj Kumar Kanodia v. State of Uttarakhand and Anr

Judgment

1. The present application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been moved by the Applicant, Neeraj Kumar Kanodia, seeking quashing of the summoning order dated 01.07.2024 passed by the learned Chief Judicial Magistrate, Pithoragarh in Criminal Case No. 719 of 2024, State v. Danish alias Amit alias Dinesh alias Dhanesh Kumar Lohiya & Ors., under Sections 120-B and 420 of the Indian Penal Code, Police Station Jajardewal, District Pithoragarh.

2. The Applicant also seeks quashing of the charge sheet dated

25.01.2024, in so far as it implicates him. The said charge sheet was filed against four individuals, namely, the present Applicant, Pankaj

Singh, Danish Kumar Lohiya, and Smt. Kamla Devi.

3. On 22.08.2023, Respondent No. 2, Sumit Kumar, lodged an FIR being Case Crime No. 0051 of 2023, alleging that the accused persons, Dinesh Kumar Lohiya and Pankaj Singh, induced him to part with Criminal Misc. Application No. 548 of 2024, Neeraj Kumar KanodiaVs State of Uttarakhand and Anr 1 Ashish Naithani J. ₹5,30,000/- on the promise of employment, which was neither provided nor refunded.

4. During the course of investigation, statements of several witnesses under Section 161 CrPC were recorded, and bank statements of the Applicant as well as co-accused persons were collected.The learned Chief Judicial Magistrate, Pithoragarh, upon perusal of the material, took cognizance and issued the summoning order dated

01.07.2024 against the Applicant and the other co-accused persons

5. Learned counsel for the Applicant submitted that the Applicant has been falsely implicated in the present case. It was urged that the FIR specifically named only two accused persons, namely Dinesh Kumar Lohiya and Pankaj Singh, who are alleged to have taken ₹5,30,000/- from the complainant on the pretext of providing employment. However, despite the absence of any allegation against the Applicant in the FIR, his name was maliciously included in the charge sheet dated 25.01.2024.

6. It was further argued on behalf of the Applicant that the only circumstance relied uponis the deposit of certain amounts in the Applicant’s betting accounts. Learned counsel contended that such deposits were made by or at the instance of the principal accused, Pankaj Singh, who was carrying out online betting activities, and the Applicant had no role in inducing or deceiving the complainant or other victims.

7. Learned counsel for the Applicant emphasized that in other similar instances, where the victims deposited money in accounts of third parties at the instance of the main accused, such account holders were made witnesses and not accused. In contrast, the Applicant has been selectively and wrongly implicated as an accused.

8. It was further urged that the Applicant is facing multiple false cases owing to his involvement in online betting activities. Still, there Criminal Misc. Application No. 548 of 2024, Neeraj Kumar KanodiaVs State of Uttarakhand and Anr 2 Ashish Naithani J. is no material to connect him with the offence of cheating alleged in the present FIR. Learned counsel submitted that the continuation of criminal proceedings against the Applicant would amount to gross abuse of the process of law and would cause irreparable hardship.

9. Per contra, learned counsel for the State opposed the application and submitted that the investigation was carried out fairly and thoroughly. It was argued that during the investigation, the statements of several witnesses were recorded under Section 161 CrPC, and the bank statements of the Applicant and co-accused were collected. The material disclosed that money deposited by the complainant and other victims was transferred into the Applicant’s bank account, thereby establishing his complicity.

10. Learned counsel for the State submitted that on the strength of the aforesaid material, the Investigating Officer rightly filed the charge sheet against the Applicant along with the co-accused. The learned Chief Judicial Magistrate, Pithoragarh, upon due consideration of the charge sheet and accompanying documents, found sufficient grounds to take cognizance and issue the summoning order dated 01.07.2024.

11. It was also argued on behalf of the State that the trial in the case is already at an advanced stage, where the statements of as many as ten witnesses have been recorded before the learned trial court. At this juncture, interference under Section 528 BNSS would not be justified, and the Applicant should be relegated to the remedy of defending himself in trial.

12. 13. Heard learned counsel for the Parties and perused the records. The principal contention urged on behalf of the Applicant is that his implication is unwarranted, as the FIR in question named only two persons, namely Dinesh Kumar Lohiya and Pankaj Singh, and that there is no allegation against him in the initial report. Criminal Misc. Application No. 548 of 2024, Neeraj Kumar KanodiaVs State of Uttarakhand and Anr 3 Ashish Naithani J.

14. This Court is unable to accept the said contention in view of the settled legal position that the scope of investigation is not confined to the named accused in the FIR. The police are duty-bound to investigate the offence and not merely the offenders named in the FIR. If, during investigation, material surfaces against any other person, investigating agency is empowered to arraign such person as an accused.

15. It is also urged that the Applicant has been made an accused merely because money was deposited in his account, and that too at the behest of the principal accused. This argument cannot be appreciated at this stage. The offence alleged is cheating coupled with criminal conspiracy.

16. To attract Section 120-B IPC, direct evidence of agreement between conspirators is rarely available; such a conspiracy is ordinarily proved by circumstantial evidence, including the conduct of parties and the flow of money.

17. The investigation in the present case has unearthed that sums of money traceable to the complainant and other victims were credited to the account of the Applicant. This circumstance, taken in conjunction with the allegations against the principal accused, provides prima facie material to proceed against the Applicant.

18. Whether the Applicant acted in concert with the principal accused or was merely a passive channel is a matter to be established at trial and cannot be adjudged conclusively in proceedings under Section 528 BNSS.

19. Learned counsel for the Applicant has also pressed the plea of discrimination, pointing out that other account holders were made witnesses while the Applicant alone has been prosecuted. This submission does not commend acceptance. Criminal Misc. Application No. 548 of 2024, Neeraj Kumar KanodiaVs State of Uttarakhand and Anr 4 Ashish Naithani J.

20. It is trite that parity in criminal liability is not judged by superficial similarity of circumstances but by the degree of involvement borne out by the material on record. The presence of transactions in the Applicant’s own account distinguishes his case, and the Investigating Officer was within his discretion to assess his complicity differently. Such discretion, once exercised on the basis of some tangible material, cannot be lightly interfered with by this Court in its inherent jurisdiction.

21. The contention that the proceedings are mala fide or constitute abuse of process also does not hold merit. The record demonstrates that the investigation was not perfunctory. The police recorded statements of multiple witnesses under Section 161 CrPC, obtained bank statements, and subsequently formed an opinion to file a charge-sheet against the Applicant and others.

22. The learned Magistrate, upon perusal of the police report and accompanying material, found sufficient grounds to take cognizance and issue the summoning order dated 01.07.2024. It is settled law that at the stage of cognizance, the Magistrate is only to be satisfied about the existence of a prima facie case and is not required to embark upon an elaborate evaluation of the sufficiency of evidence.

23. The law on the scope of inherent jurisdiction is equally well settled. Section 528 BNSS, like Section 482 CrPC, embodies the principle that such jurisdiction is to be exercised sparingly and in the rarest of rare cases, where continuing the proceedings would result in palpable injustice.

24. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Supreme Court catalogued illustrative situations where quashing may be justified. The present case does not fall within any of those categories. The allegations, if taken at face value, constitute offences under Sections 420 and 120-B of the IPC. The material collected during Criminal Misc. Application No. 548 of 2024, Neeraj Kumar KanodiaVs State of Uttarakhand and Anr 5 Ashish Naithani J. the investigation, particularly the banking trail, provides a prima facie nexus between the Applicant and the transaction complained of.

25. It is also not without significance that the trial is at an advanced stage. The counter affidavit filed by the learned counsel of the State shows that ten prosecution witnesses have already been examined before the learned trial court. At this juncture, to interdict the proceedings would be neither expedient nor just.

26. The cumulative effect of the aforesaid discussion is that the proceedings cannot be said to be manifestly mala fide, nor do the allegations fail to make out the ingredients of the offences alleged. The case presented by the Applicant raises disputed questions of fact that can only be adjudicated upon through evidence presented during trial. This Court, therefore, finds no ground to exercise inherent jurisdiction for quashing the charge sheet dated 25.01.2024 or the summoning order dated 01.07.2024 in so far as it concerns the Applicant. ORDER For the reasons recorded hereinabove, this Court is of the considered view that no ground is made out to exercise inherent jurisdiction under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Accordingly, the Criminal Miscellaneous Application under Section 528 BNSS, 2023, filed by the Applicant, Neeraj Kumar Kanodia, stands dismissed. (Ashish Naithani J.)

13.08.2025 SB SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5aa08b09c12f 21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7FF0A9BED00 E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA Criminal Misc. Application No. 548 of 2024, Neeraj Kumar KanodiaVs State of Uttarakhand and Anr 6 Ashish Naithani J.