Rajesh Gupta and another v. State of U.P. and another), under Sections
Case Details
Reserved on: 19.05.2023 Delivered on: 09.08.2023 Court No. - 50 Case :- CRIMINAL REVISION No. - 1529 of 2023 Revisionist :- Shashank Dixit Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Sharad Malviya Counsel for Opposite Party :- G.A.,Kashif Zaidi Hon'ble Ram Manohar Narayan Mishra,J.
Legal Reasoning
Heard learned counsel for the revisionist and Sri Ashish Mani Tripathi, learned AGA for the State. The instant criminal revision is filed against the judgement and order dated 17.1.2023 passed by Sessions Judge, Kanpur Nagar in Criminal Revision no. 23 of 2023 (Rajesh Gupta and another vs. State of U.P. and another), under Sections 406, 420 IPC, P.S. Babupurwa, District Kanpur Nagar whereby revision filed by the accused persons was allowed by the court below, wherein, order dated 24.5.2022 passed by Civil Judge (J.D.) court no. 3, Kanpur Nagar was challenged whereby accused persons was summoned to face trial under Sections 406, 420 IPC in Complaint Case No. 7286 of 2020, was set aside and the matter was remitted back to the court concerned. The brief facts of the case are that the complainant, who is revisionist before this Court, instituted a complaint in the court of ACMM-IV, Kanpur Nagar with averments that he had completed B.tech Chemical Engineer and he was serving in Sunkem industries situated at Saket Nagar where accused Rajesh Gupta was also posted as Accountant and he was removed from service on allegation of financial irregularities. However, the said accused taken the complainant in his confidence anyhow and made the complainant resigned from his post and a partnership firm named as Saturn Organic was established by Rajesh Gupta and his wife Risha Gupta and complainant in the year 2008 at the residence of accused persons in Kanpur Nagar; the accused also opened a firm in the name of Maa Vaishno Traders on the same address and thus he was operating two firms at the same address being 54/5 Babupurwa, Kanpur Nagar; accused Rajesh Gupta committed bungling of crores of rupees in the partnership firm with the help of his wife Risha Gupta; he issued many forms by forging signature of the complainant thereon; when the complainant asked 1 him in the month of December, 2019 to get the account of the firm inspected, he took advantage of operation of the firm in his house and abused and threatened him to lodge him into jail for making false case of molestation to his daughter. The complainant also sent a notice on 20.1.2020 to the accused through his counsel, which was received by accused and partner of the firm Risha Gupta and the accused persons replied him on 6.2.2020 that complainant was not have any right to inspect the account; apart from committing bungling of crores of rupees, accused also issued many cheques, which was presented at HDFC bank and amount was deposited in the personal firm of the accused; the complainant lodged an FIR in this respect vide Crime no. 15 of 2020, under Sections 420, 467, 468, 471 IPC, P.S. Nazirabad; in this regard learned Magistrate recorded statement under Section 200 Cr.P.C. of the complainant and that of witnesses Ashutosh, Sunil Kumar Gaur under Section 202 Cr.P.C. and also directed post cognizance police investigation under Section 202 Cr.P.C., wherein, I.O. reported to the court that opposite parties have prepared forged documents and embezzled crores of rupees from the firm; learned Magistrate after considering the investigation report of the police and statement of the witnesses in inquiry proceeding under Section 200/202 Cr.P.C. came to the conclusion that prima facie case under Section 406, 420 IPC is made out against the accused persons and he summoned the respondent nos. 2 and 3 as accused to face trial. Feeling aggrieved by the summoning order passed by the learned Magistrate, accused persons filed criminal revision before the court of Sessions and same was allowed by the impugned order passed by the learned Sessions Judge, wherein, he observed that allegations are levelled against the accused persons, who were partner of the firm Saturn Organic alongwith complainant; in collusion of each other issued many cheques by forging signature of complainant and misappropriated the amount of cheques by transferring the same in their different accounts and the other allegation is that accused persons have committed bungling and embezzled of crores of rupees of the firm by foul play and when the complainant enquired about that, they abused and became offensive to him. With regard to first charge of misappropriation of amount of the firm by issuing forged documents in the name of the complainant and transferring the same in different accounts, a criminal case has already been registered vide Crime no. 15 of 2020 at P.S. Nazirabad against Nisha Gupta and Rajesh Gupta as well as SHO, HDFC Bank. 2 From perusal of the record of lower court it appears that account of M/s Saturn Organic is audited by CA and it is also provided in partnership deed dated 15.8.2008 that said deed is executed between the complainant and the accused Risha Gupta and both of them will have half share in the profit and loss of the firm; the bank account of the firm will be jointly operated by both partners and if any dispute occurs between the partners, the same will be disposed of with mutual consent of the partners through arbitrator, therefore, the complainant/ respondent no. 2 can inspect the ledger account of the firm at the place of chartered accountant of the firm and also inquired about any tempering or forgery in the account of the firm. In present case, complainant has not filed any report of the CA of the firm in respect of the allegation that accused persons had committed forgery and embezzlement of amount of firm; accused persons have filed certain forms through list of paper 8-kha with regard to the activity of the firm that including balance sheet, profit and loss account and audit report for financial year 2018-19 and audit report dated 6.9.2019 filed by chartered accountant; this fact shows that accused persons have come to the court with clean hands. Learned counsel for the revisionist submitted that revisional court has remanded the matter back for deciding afresh to the trial court after setting aside the summoning order dated 24.5.2022 passed by the court of first instance in the light of the observations made in the said criminal revision; the observation of learned Sessions Judge are of such nature that it is probable the learned court of first instance may dismiss the complaint as revisional court appears to have countenanced the stand of accused respondents. Learned revisional court has committed manifest error of law in not giving any opportunity to the complainant to submit documents in rebuttal of the documents filed by the respondent no. 2, which were not filed on lower court record; the revisionist was not heard by the revisional court before passing of impugned order dated 17.1.2023; the impugned order passed by the revisional court is wholly illegal and against the settled proposition of law as the impugned order is based on additional documents filed by the accused persons at the revisional stage, which are not part of the lower court record thus the revisional court could not pass its finding on those papers, which were not placed before the court of first instance at the time of passing the summoning order. 3 Per contra, learned counsel for the respondent no. 2 and 3 submitted that in the impugned order passed by revisional court, it is specifically stated that district government counsel (criminal) and counsel for the complainant was heard before passing of the order and even their arguments are quoted at page-3 of the impugned order, therefore, this wrong fact has been stated by the revisionist/complainant that he was heard before passing of the impugned order before the learned sessions Judge; there is no illegality or irregularity in the impugned order passed by the revisional court; the complainant has already lodged an FIR against the respondent and others with allegation of issuance of cheque by forging signature of complainant and transferred the amount of cheque in different bank accounts. However, in said FIR, no allegation was made that accused persons committed embezzlement of crores of rupees of the firm by foul play. Neither in complaint nor in police investigation report, any description or specification of the amount, which is allegedly embezzled, is disclosed; the allegations are vague in this respect and no reliance can be placed thereon. Learned revisional court has also observed that in lower court record, copy of partnership deed dated 15.8.2008 was filed, wherein, terms and conditions are mentioned. Considering the rival submissions of learned counsel for the parties and on perusal of record including the impugned order passed by learned Sessions Judge as well as summoning order passed by learned Magistrate and on the basis of foregoing discussions, I am of the considered opinion that the learned revisional court has committed no illegality, irregularity or perversity in the impugned order passed by the learned revisional court dated 17.1.2023 whereby summoning order passed by learned Magistrate has been set aside and the matter has been remanded back to the court below for deciding afresh in the light of the observations made in the revisional order; the revision is devoid of merits and is liable to be dismissed. The observations of the lower revisional court in the impugned order are of tentative nature and the court below will be at liberty to come to its independent conclusion on the basis of material available on record. The revision is hereby dismissed and the impugned order passed by revisional court is affirmed. Order Date :- 09.08.2023 Dhirendra/ 4 Digitally signed by :- DHIRENDRA KUMAR High Court of Judicature at Allahabad