# Ahil Sharda & Ors v. State of U.P. & Anr

- **Citation:** Criminal Revision No. 1344 of 2018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-06
- **Case number:** Criminal Revision No. 1344 of 2018
- **Bench:** Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ahil-sharda-ors-v-state-of-u-p-anr-46358
- **Pages:** 21

## Headnote

(A) Criminal Law-Code of Criminal
Procedure, 1973 - Section 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Section 406, 420, 467,
1540 INDIAN LAW REPORTS ALLAHABAD SERIES
468, 471, 120-B -- discretion vested
in the High Court under Section 482 of
the Code can be exercised suo motu
to prevent the abuse of the process of
the Court and/or to secure the ends of
justice(Para-27)

Company is engaged in manufacture and sale of
Beer, which is regulated and governed by the
Excise Act and other relevant laws of the State -
Respondent no. 2, who is the Manager of
Licensee firm - engaged in business of sale of
Beer etc. by purchasing the same from the
Company - investigation - statement of the
owner of the alleged two trucks bearing no.
UP32 HN 3209 and UP32 FN 8048 - recorded
under Section 161 Cr.P.C. - stated his trucks
were not used for the purpose as his trucks
were being used for transporting sand and since
last three months, trucks were standing in the
yard - charge sheet was prepared against the
Company, with the allegation that by preparing
a forged documents, the Company cheated the
informant and also cause U.P. excise revenue
loss. (Para-28,35,44)

HELD:- There is no evasion of tax and it
seems that there is a dispute of rebate
between the parties and, therefore, the
impugned criminal prosecution is a sheer
abuse of the legal process - no ingredients of
deception, fraudulent or dishonest act by
inducing the person or criminal breach of
trust or forgery are found - the impugned
charge
sheet
and
its
consequential
summoning order passed by ACJM-I, are set
aside. (Para-46,47)

Application u/s 482 Cr.P.C. partly
allowed. (E-7)

List Of Cases Cited:-

## Text

_Characters 0–39,946 of 70,535. This is a partial read: ask again with offset=39946 for what follows._

3-5 All. Ahil Sharda & Ors. Vs. State of U.P. & Anr.
1539
satisfied, the court can call a witness not
only on the motion of either side or suo
motu for examination of a witness, who
had already been examined or present in
the
court
or
being
summoned
for
examination for the end of justice and
proper judicial decision making. The court
has been empowered by this Section to
summon witnesses, in cases where end of
justice require so. It is enabling section,
which
enables
court
for
examining
witnesses either examined or to be
examined for the end of justice, but this
situation should be there.

9. In the present case, if situation is to
be analysed, it is apparent that with a view
to have favour in a case of rape being said
to be lodged against applicant, he became
hostile to prosecution case. Not only he, his
wife and his son became hostile. They have
not supported case of prosecution with a
view to have favour in a case, which was
said to be manipulated and lodged upon
initiation of Police Inspector opposite party
no. 3 against applicant. Though, above case
crime number and F.I.R. is not with
specific title or parentage or residence. It is
merely with a name of Ajit Pratap Singh.
How it is related with this case is not
apparent therein. The applicant has yet not
been arrested by Investigating Officer in
above case, as has been argued by learned
counsel for applicant, whereas in this case
he had appeared before trial court, had
given evidence and the evidence is with
interval, wherein evidence was recorded by
trial court and at no point of time this
complaint was ever lodged neither any
complaint of such threat was there, whereas
it was said that since the beginning threat
was being extended. The law laid down in
Zahira Habibullah Sheikh Vs. State of
Gujarat; 2004 (49) ACC 238, Vijay
Kumar Vs. State of U.P.; 2011 (74) ACC
879, Natasha Singh Vs. C.B.I.; 2013 (82)
ACC 387, Sheela Devi Vs. State of U.P.;
Criminal Revision No. 1344 of 2018
Allahabad and Dinesh Kumar Mishra
Vs. State of U.P.; 2019 (108) ACC 40,
relies that principles governing Section 311
Cr.P.C. and end of justice is a sine qua non
for exercise of jurisdiction under this
section and in present case there is no
frustration of end of justice at all.
Accordingly, this application merits its
dismissal. The application is dismissed as
such.

10. Interim order stands vacated. The
trial court is directed to make compliance
of order given in this case regarding
disposal, as mentioned in it.
----------
(2020)03-05ILR A1539
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.03.2020

BEFORE

THE HON'BLE RAJEEV SINGH, J.

Application U/S 482/378/407 Cr.P.C. No. 2005
of 2019

Ahil Sharda & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Baljeet Singh,Dr. Lalta Prasad Misra

Counsel for the Opposite Parties:
Govt. Advocate, Kunwar Sushant Prakash,
Nadeem Murtaza, Nagendra Mohan, Nilesh
Anand, Shubham Tripathi, Sushil Kumar
Singh

(A) Criminal Law-Code of Criminal
Procedure, 1973 - Section 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Section 406, 420, 467,
1540 INDIAN LAW REPORTS ALLAHABAD SERIES
468, 471, 120-B -- discretion vested
in the High Court under Section 482 of
the Code can be exercised suo motu
to prevent the abuse of the process of
the Court and/or to secure the ends of
justice(Para-27)

Company is engaged in manufacture and sale of
Beer, which is regulated and governed by the
Excise Act and other relevant laws of the State -
Respondent no. 2, who is the Manager of
Licensee firm - engaged in business of sale of
Beer etc. by purchasing the same from the
Company - investigation - statement of the
owner of the alleged two trucks bearing no.
UP32 HN 3209 and UP32 FN 8048 - recorded
under Section 161 Cr.P.C. - stated his trucks
were not used for the purpose as his trucks
were being used for transporting sand and since
last three months, trucks were standing in the
yard - charge sheet was prepared against the
Company, with the allegation that by preparing
a forged documents, the Company cheated the
informant and also cause U.P. excise revenue
loss. (Para-28,35,44)

HELD:- There is no evasion of tax and it
seems that there is a dispute of rebate
between the parties and, therefore, the
impugned criminal prosecution is a sheer
abuse of the legal process - no ingredients of
deception, fraudulent or dishonest act by
inducing the person or criminal breach of
trust or forgery are found - the impugned
charge
sheet
and
its
consequential
summoning order passed by ACJM-I, are set
aside. (Para-46,47)

Application u/s 482 Cr.P.C. partly
allowed. (E-7)

List Of Cases Cited:-

1. Vinod Natesan Vs. St. of Kerala & ors., (2019)
2 SCC 401

2. Anand Kumar Mohatta & anr. Vs. St. (Govt. of
NCT of Delhi) Department of Home & anr., 2019
(1) JIC 1 (SC)

3. Prof. R K Vijayasarathy & anr. Vs. Sudha
Seetharam & anr. (Criminal Appeal No. 238 of
2019)

4. Pooja Ravinder Devidasani Vs. St. of Mah. &
ors., 2015 (1) JIC 398 (SC)

5. Lalit Kargeti Vs. St. of U.P. & ors., 2018 (2)
JIC 427 (All)

6. Surya Pratap Singh Vs. St. of U.P. & anr.,
2016 (1) JIC 659 (All)

7. Nitin Jain & ors. Vs. St. of U.P. & anr., 2015
(1) JIC 424 (All)
8. Lourenco D' Souza Vs. St. of U.P. & anr.,
2017 (1) JIC 592 (All)

9. Pawan Kumar Jain Vs. St. of U.P. & anr.,
2018 (2) JIC 369 (All)

10. St. of Haryana Vs. Bhajan Lal, 1992 Supp.
(1) SCC 335

11. International Advanced Research Center for
Powder Metallurgy and New Materials (ARCI) &
ors. Vs. Nirma Cerglass Technics Pvt. Ltd. &
anr., (2016) 1 SCC (Cri) 269

12. Smt. Padma Jain & ors. Vs. St. of U.P. &
anr. reported in 2016 (1) JIC 787 (All)

13. Pepsi Foods Ltd. & anr. Vs. S.J.M. & ors.,
(1998) 5 SCC 343

14. Sukhbir Singh Vs. St. of U.P. & ors., 2017
(1) JIC 451 (All)

15. Sunil Bharti Mittal Vs. C.B.I., (2015) 4 SCC
609

16. Indian Oil Corporation Vs. N.E.P.C. India
Ltd., (2006) 6 SCC 736

17. Anand Kumar Mohatta & anr. Vs. State
(Govt. of NCT of Delhi) Department of Home &
Anr., 2019 (1) JIC 1 (SC)

18. St. of Guj. Vs. Afroz Mohammed Hasanfatta,
2019 OnLine SC 132
3-5 All. Ahil Sharda & Ors. Vs. State of U.P. & Anr.
1541
19. Bhaskar Laxman Jadhav & ors. Vs.
Karamveer Kakasaheb Wagh Education Society
& ors., (2013) 11 SCC 531

20. Sau. Kamal Shivaji Pokarnekar Vs. St. of
Maharashtra & ors. (Criminal Appeal No. 255 of
2019)

21. Devendra Pratap Singh Vs. St. of Bihar &
anr., (2019) 4 SCC 351

22. S. Krishnamoorthy Vs. Chellammal, (2015)
14 SCC 559

23. Chilakamarthi Venkateshwarlu & Anr. Vs.
State of Andhra Pradesh & ors. (Criminal Appeal
No. 1082 of 2019)
24. Mohd. Allaudin Khan Vs. St. of Bihar & ors.,
(2019) 6 SCC 107

25. Rajiv Thapar & ors. Vs. Mohan Lal
Kapoor,(2013) 3 SCC 330

(Delivered by Hon'ble Rajeev Singh, J.)

1. Heard Shri L.P. Mishra, learned
counsel assisted by Shri Baljeet Singh
appearing for the applicants, Shri V.K.
Shahi,
learned
Additional
Advocate
General assisted by Shri Anurag Verma,
learned A.G.A. for the State and Shri
Prashant Chandra, learned Senior Counsel
assisted by Ms. Mahima Pahwa appearing
for the complainant-respondent no. 2.

2. This application under Section 482
Cr.P.C.
has
been
filed
seeking
the
following main reliefs:

"I.
set
aside
the
impugned
summoning order dated 13.02.2019 passed
in Criminal Case No. 5694/2019, Case
Crime No. 0260/2018, under Section 406,
420, 467, 468, 471, 120-B I.P.C., Police
Station-Husainganj, district Lucknow.

II. set aside the impugned charge
sheet dated 10.02.2019, filed by the
Investigating Officer in Case Crime No.
0260/2018, under Section 406, 420, 467,
468, 471, 120-B I.P.C., Police StationHusainganj, District Lucknow.

III.
set
aside
the
entire
proceedings of the Case Crime No.
0260/2018, under Section 406, 420, 467,
468, 471, 120-B I.P.C., Police StationHusainganj, District Lucknow."

3. Shri L.P. Mishra, learned counsel
appearing for the applicants submitted that
applicant no. 4, i.e., M/s. United Breweries
Ltd.
(hereinafter
referred
to
as
the
''Company'), which is a registered company
engaged in manufacture and sale of Beer,
received a demand order on 7th September,
2018 at 7.56 p.m. through e-mail by the
Manager of the licensee-Ashok Jaiswal, on
which,
the
Company
directed
its
transporter, namely, M/s. Sical Logistics
Ltd. to arrange vehicles to deliver the
goods from its go-down located at
Ghaziabad to the licensee at Lucknow.

4. M/s. Sical Logistics Ltd. has a
contract for arrangement of trucks for
transportation services with New Fatehpur
Kolkata Transport Company, which, in
turn, hires several trucks from open market.
In the aforesaid transaction, New Fatehpur
Kolkata Transport company had hired truck
nos. UP32 HN 3209 and UP32 FN 8048 for
delivery of consignment of respondent no.
2 to Lucknow. In the course of process,
M/s.
Sical
Logistics
Ltd.
issued
BT/consignment
note
dated
11th
September, 2018 for delivering the Beer to
the consignee, namely, Ashok Kumar
Jaiswal, Station Road, Lucknow. After
arrangement
of
the
trucks
by
the
transporter, transport permit-F.L. 36 was
taken
from
Excise
Department
on
11.09.2018 for supply of the Beer by 13th
September, 2018. Consignment of Beer
was dispatched for delivery to the licensee
1542 INDIAN LAW REPORTS ALLAHABAD SERIES
at Lucknow on 11.09.2018 by truck nos.
UP32 HN 3209 and UP32 FN 8048 after
payment of excise duty, in advance. It is,
thus, submitted by learned counsel for the
applicants that the Company consigned the
entire goods/Beer in respect of the demand
order dated 7th September, 2018 through
Company's registered transporter by the
aforesaid trucks, which were having GPS
systems
as
mandated
by
Excise
department's Track and Trace Policy.

5. He further submitted that one
QTS
Solutions
Pvt.
Ltd.
was
the
contractor, authorised by the Excise
department for tracking the location of
the trucks and both the trucks were in
contact of the said Agency through GPS
upto the outer limit of city of Lucknow.
The GPS device of both the trucks lost
contact with GPS tracker Agency on 13th
September, 2018 after 11.41 p.m., on
which, QTS Solutions Pvt. Ltd. sent a
message through e-mail on 14.09.2018 at
4.15 p.m. to Mr. Dharam Chand, who was
working as Depot In-charge under the
Company, who, in turn, informed to the
two officials of Company as well as the
transporters M/s. Sical Logistics Ltd.
about the lost of the trucks. Learned
counsel for the applicants submited that
QTS Solutions Pvt. Ltd. and M/s. Sical
Logistics Ltd. were instructed by the
Company to make serious efforts for
tracing the trucks. The officers of the
Company also inquired about the location
of the truck from respondent no. 2
through
telephone
forthwith,
but
respondent no. 2 informed that the trucks
had not yet come at his place. Thereafter,
the Company apprised the said fact to the
Excise department, on which, Officer Incharge, District Excise Office vide letter
dated 14th September, 2018 directed the
Company to file F.I.R.

6. In pursuance to the aforesaid
incident, Mukesh Kumar, Managar, M/s.
Sical Logistics Ltd. lodged F.I.R. No. 0390
of 2018 on 16th September, 2018 under
Sections 420, 406 I.P.C., P.S. Badalpur,
District Gautam Budh Nagar with the
allegation that on 11th September, 2018,
two vehicles, one of which was bearing no.
UP32 HN 3209 (driver-Mukesh Kumar s/o
Moti Lal r/o Village and Post Khursaina,
District Etawah and owner-Harjeet Kumar
Rawat s/o Rampal Rawat r/o Sewai Baruna,
U.P. Lucknow, mobile no. 7753995356)
and second vehicle was bearing UP32 FN
8048 (driver-Shanu s/o Bhagwan Deen, r/o
Mohalla Masjidganj, Shahjahanpur, mobile
no.
8979887803
and
owner-Subhash,
mobile no. 7753995355 r/o Sewai Baruna
Nagram road, Lucknow), were checked out
from the factory premises carrying 1180
cases of Beer having LR No. 248000524,
invoice value Rs.35,39,405/- and L.R. No.
248000523, invoice value Rs.39,23,630/-
respectively. It is further alleged that on
13th September, 2018, at about 16.40 hrs.,
when the transporter, namely, Happy Singh
Arora from his mobile no. 8750711313
talked to driver Mukesh on his mobile no.
6399156672, then he was informed that
vehicles were standing near Junabganj,
Lucknow at Chauhan Dhaba due to "no
entry". Thereafter, they could not contact
with the drivers and the vehicles along with
goods were vanished.

7. Shri Mishra submitted that the
incident was also reported to respondent
no. 2. Thereafter, Company through e-mail
dated 21st September, 2018 requested the
licensee for sending fresh demand to resupply of the Beer against the order dated
07.09.2018, the consent of which was given
by the licensee to the Company by e-mail
on 22.09.2018. However, by the same
letter, licensee also informed the Company
3-5 All. Ahil Sharda & Ors. Vs. State of U.P. & Anr.
1543
that criminal proceedings have already
been initiated in police Station Husainganj,
Lucknow with regard to non-supply of
Beer and civil proceedings are to be
initiated for the loss suffered. Learned
counsel for the applicants has submitted
that after inquiry, it came into the notice of
the applicants that F.I.R. No. 260 of 2018
under Section 406 I.P.C., P.S. Husainganj,
District
Lucknow
was
lodged
on
16.09.2018 against the Company and the
applicants herein, namely, Akhil Sharda,
Arvind Padhi and Himanshu Tiwari, in
which after conducting due investigation,
the
Investigating
Officer
found
no
incriminating
material
against
the
applicants, as such, he prepared final report
dated 13th October, 2018 with the finding
that the goods were supplied by the
Company, but the same were not reached to
the destination, but Company resupplied
the goods, thus, no offence is made out.

8. Relevant part of the findings made
by the Investigating Officer is being
reproduced as under:

"Jheku th fuosnu gS fd oknh lathr
tk;loky mijksDr dh rgjhjh lwpuk ij fnukad
16-09-2018
dks
Fkkuk&gktk
ij
eq0v0la0&260@18 /kkjk&406 Hkk0na0fo0 cuke
vf[ky 'kkjnk vkfn rhu uQj mijksDr ds
iathd`r gqvk ftldh foospuk eq> m0fu0 }kjk
lEikfnr dh x;h nkSjku foospuk c;ku oknh
eqdnek] fujh{k.k ?kVukLFky] c;kuukr xokgku]
ls vfHk;ksx ds tqeZ /kkjk 420 Hkk0na0fo0 dh
c<+ksRrjh dh x;h rekeh foospuk ls ik;k x;k fd
oknh eqdnek }kjk rhu Vad ch;j dk vkMZj fn;k
x;k dEiuh }kjk vkMZj fd;s x;s eky dks le;
ls Hkstk x;k ijUrq okgu pkydksa }kjk chp es gh
eky dks /kks[kk/kM+h djds gM+i fy;k x;k ftlds
lEcU/k esa Fkkuk cknyiqj ftyk xkSrecq) uxj es
eq0v0la0&390@18 /kkjk&420] 406 Hkk0na0fo0
vfHk;ksx iathd`r djk;k x;k oknh eqdnek }kjk
fn;s x;s vkMZj dh iwfrZ oknh eqdnek dks dj nh
x;h gSA ftldh पुलि ftyk vkcdkjh vf/kdkjh
y[kuÅ }kjk fnukad 27-09-18 dks dh x;h gSA
foospuk es ik;k x;k oknh eqdnek }kjk fd;s x;s
eky vkMZj le; ls dEiuh }kjk Hkstk x;k ijUrq
chp es gh Vad pkydks }kjk gsjkQsjh djds eky
gM+i dj fy;k x;k ftlds lEcU/k es Fkkuk
cknyiqj xkSrecq) uxj es vfHk;ksx iathd`r gksus
ds dkj.k oknh eqdnek }kjk fn;s x;s vkMZj dh
iwfrZ ugh gks ldh FkhA tks iwfrZ dj nh x;hA
QyLo:i
vfHk;ksx
es
izfri{khx.kks
}kjk
/kkjk&420] 406 Hkk0na0fo0 dk xBu gksuk u ik;s
tkus ds dkj.k tfj;s vafre fjiksVZ foospuk lekIr
dh tkrh gS fuosnu gS fd rF;ksa ,oa ifjfLFkfr;ksa
dks n`f"Vxr vafre fjiksVZ dks Lohd`r djus dh
d`ik djsaA"

9. Learned counsel for the applicants
further submitted that as per the provisions
of the Excise Laws, the supplier/Company,
is required to maintain lease of orders
received in seriatim and the concerned
Excise Officer verifies the lease of orders
and credit of amount in the bank account of
supplier/Company.
Thereafter,
the
Company is required to arrange the trucks
within 48 hours through its transporters for
transportation of the Beer. Details of the
trucks and drivers are also required to be
provided to the concerned Excise Officers
at the time of taking of F.L. 36 for
transporting the Beer. The details of the
trucks,
drivers
and
the
route
for
transportation of Beer are to be mentioned
in F.L. 36. Learned counsel for the
applicants also submitted that after consent
of the licensee on 22nd September, 2018,
fresh F.L. 36 was taken from the official
website of the Excise Department on
22.09.2018 itself and the Beer was also sent
on the same day against the order dated
07.09.2018 through the transporter of the
Company without taking any extra cost
from respondent no. 2. Thereafter, goods
were delivered at the location of the
licensee at Lucknow on 24.09.2018, which
1544 INDIAN LAW REPORTS ALLAHABAD SERIES
was accepted by the licensee. He also
submitted that since the Company supplied
the goods to the informant, therefore, no
offence under Sections 420, 406 I.P.C. can
be said to be made out. He also submitted
that, however, even after receipt of the
goods, since the acknowledgement was not
given by the licensee, the Company
contacted Excise department, on account of
which, an Excise Inspector was deputed to
verify the delivery of the Beer. The
concerned Excise Officer inspected the
location of licensee and submitted his
report dated 27.09.2018 that Beer was duly
received by the licensee at his premises
against the order dated 07.09.2018.

10. Learned counsel for the applicants
also submitted that in pursuance of the first
demand order dated 7th September, 2018,
entire goods were resupplied to respondent
no. 2 at his location on 24.09.2018 and the
delay, which caused in delivery, was not in
the hands of the applicants.

11. He further submitted that the licensee
had also placed another order through e-mail on
11.09.2018 at 8.30 p.m. for delivery of 1880
cases of Beer at Varansi. Since the vehicles for
transportation of Beer could not be arranged, in
the meantime, the licensee on 15th September,
2018 modified its original order dated 11th
September, 2018 through e-mail instructing that
the ordered Beer be delivered at Lucknow
instead of Varansi. After receipt of the revised
order dated 15.09.2018 with the changed
location, F.L. 36 was taken on 17.09.2018 and
on the same day, consignment of Beer was
dispatched after payment of excise duty through
transporter of the Company, namely, M/s. Sical
Logistics Ltd. by truck no. UP 81 BT 5285
from Aligarh to Lucknow and the consignment
of Beer was received by the licensee on
19.09.2018.

12. Submission of Shri L.P. Mishra is that
similarly in pursuance of the indent/order dated
7th September, 2018, after taking the transport
permit F.L. 36 on 11th September, 2018, the
consignment was dispatched on the same day
for delivery to the licensee through truck nos.
UP32 HN 3209 and UP32 FN 8048, but both
the trucks lost communication with the GPS
Tracker agency on 13th September, 2018, just 1
and 1/2 km. away from the Kanpur Road,
Junabganj, Lucknow, U.P., 226401. However,
the entire goods were supplied to respondent
no. 2 at his location on 24.09.2018, without any
extra cost. Even then, respondent no. 2 pressed
F.I.R. bearing Case Crime No. 260 of 2018
(supra) under Section 406 I.P.C., P.S.
Husainganj, District Lucknow., in which,
Investigating Officer, after recording the
statement of the informant and inspecting the
site, prepared final report dated 13th October,
2018 (Annexure 12) with the observation that
the goods were supplied by the Company, but
the same were not reached to the destination, as
a result, re-supply of the goods was made.

13. After filing of the said final
report, Ashok Kumar Jaiswal, licensee
of F.L. 2B moved an application
(undated) before the Inspector General
of Police, Lucknow and requested that
the final report dated 13.10.2018 may
be rejected as the officers of the
Company are habitual in committing
such types of crime. In pursuance to the
said application, final report dated
13.10.2018 was rejected by Additional
Superintendent
of
Police
(Crime),
Lucknow and the matter was transferred
for reinvestigation to the Crime Branch.
The
second
Investigating
Officer
prepared the impugned charge sheet
dated 10th February, 2019, however,
there is no incriminating evidence for
making out the alleged offence.
3-5 All. Ahil Sharda & Ors. Vs. State of U.P. & Anr.
1545

14. Shri Mishra submitted that, as a
matter of fact, the licensee was forcing for
rebate and the second Investigating Officer
was used as a tool for the same, as vide
letter
dated
26th
December,
2018,
Investigating Officer asked to the Company
that
why
the
rebate
amounting
to
Rs.2,26,73,750/- was not paid for the
period 01.04.2018 to 30.09.2018 to the firm
of licensee-Ashok Jaiswal, M/s. Beehive
Alcoveb Ltd. In reply to the same, the
Company vide letter dated 15th January,
2019 categorically stated that the Company
had not offered any rebate to the
complainant during the period 01.04.2018
to 30.09.2018, therefore, the claim of
rebate for the said period aggregating to
Rs.2,26,73,750/- made by the complainant,
is unfounded. Learned counsel for the
applicants also submitted that the Company
also clarified in the said letter that during
the inspection of depot of the Company at
NOIDA made by the Investigating Officer
on 26th December, 2018 and Sales Office
at Delhi, all the statement of account of the
complainant maintained by the Company
was also shown. In the said letter, it was
further stated that all the transactions are
managed and recorded in accordance with
the Excise Laws under the supervision of
Excise officials. He further submitted that
on 25.01.2019, the Investigating Officer
wrote another letter to the Company stating
that Beehive Alcoveb Ltd., i.e., licensee of
F.L. 2B, namely, Ashok Kumar Jaiswal
lodged F.I.R. No. 0260 of 2018 against the
applicants alleging that the rebate is not
being given to the complainant, which was
being provided prior to 1st April, 2018,
therefore, asked the Company to give
details of all the licensees for the period of
2015-16, 2016-17 and 2017-18 with the
explanation that as to how much rebate has
been given to other licensees. Learned
counsel for the applicants submitted that
the Investigating Officer Mr. Jai Prakash
Yadav was continuously making pressure
for giving the aforesaid rebate to the
complainant, as he again wrote a letter
dated 31st January, 2019 and asked that
why
the
rebate
in
the
account
of
complainant is not being credited for the
period 1st April, 2018 to 30th September,
2018. Reply dated 03.02.2019 to the said
letter was given by the officers of the
Company stating that there is no agreement
between the Company and complainant for
sharing the profit of trade and no any rebate
amount is payable to the complainant
during the aforesaid period.

15. He further submitted that merely
on the basis of presumption, impugned
charge sheet has been prepared on 10th
February, 2019 with the finding that huge
loss of excise duty was found, as also
forged documents were prepared by the
applicants and the goods were deliberately
shown missing, and as per the trade
practice, rebate amount was to be credited
in the account of complainant and by not
doing so, the licensee was also cheated by
the applicants. Learned counsel for the
applicants submitted that the Company
suffered a lot as its goods were found
missing, but re-supply was made without
any cost. He vehemently submitted that
there is no evidence of criminal breach of
trust, cheating or forgery on the part of the
applicants. He also submitted that the
dispute
between
the
Company
and
complainant in relation to the rebate, is of
civil nature, therefore, criminal prosecution
is not permissible.

16. In support of his argument, Shri
Mishra relied on the decision of the Hon'ble
Apex Court in the cases of Vinod Natesan
Vs. State of Kerala & Ors., (2019) 2 SCC
401, Anand Kumar Mohatta & Anr. Vs.
1546 INDIAN LAW REPORTS ALLAHABAD SERIES
State
(Govt.
of
NCT
of
Delhi)
Department of Home & Anr., 2019 (1)
JIC 1 (SC), Prof. R K Vijayasarathy &
Anr. Vs. Sudha Seetharam & Anr.
(Criminal Appeal No. 238 of 2019),
Pooja Ravinder Devidasani Vs. State of
Maharashtra & Ors., 2015 (1) JIC 398
(SC), Lalit Kargeti Vs. State of U.P. &
Ors., 2018 (2) JIC 427 (All), Surya
Pratap Singh Vs. State of U.P. & Anr.,
2016 (1) JIC 659 (All) and Nitin Jain &
Ors. Vs. State of U.P. & Anr., 2015 (1)
JIC 424 (All).

17. He further submitted that the
ingredients of alleged offences do not stand
satisfied. He relied on the decision of this
Court passed in the cases of Lourenco D'
Souza Vs. State of U.P. & Anr., 2017 (1)
JIC 592 (All), Pawan Kumar Jain Vs.
State of U.P. & Anr., 2018 (2) JIC 369
(All).

18. In support of his submission that
criminal prosecution cannot be used as a
weapon of harassment nor can it be used
for malicious intention, learned counsel for
the applicants placed reliance on the
decision in the cases of State of Haryana
Vs. Bhajan Lal, 1992 Supp. (1) SCC 335,
International Advanced Research Center
for
Powder
Metallurgy
and
New
Materials (ARCI) & Ors. Vs. Nirma
Cerglass Technics Pvt. Ltd. & Anr.,
(2016) 1 SCC (Cri) 269 and Smt. Padma
Jain & Ors. Vs. State of U.P. & Anr.
reported in 2016 (1) JIC 787 (All).

19.

Further
submitting
that
cognizance cannot legally be taken in a
mechanical manner without any application
of mind, Shri Mishra placed reliance on the
decision in the cases of Pepsi Foods Ltd.
& Anr. Vs. Special Judicial Magistrate
& Ors., (1998) 5 SCC 343, Sukhbir Singh
Vs. State of U.P. & Ors., 2017 (1) JIC
451 (All) and Sunil Bharti Mittal Vs.
Central Bureau of Investigation, (2015) 4
SCC 609.

20. He also submitted that High Court
can analyse the material to secure the ends
of justice and to prevent the use of process
of any Court. He relied on the decision of
the Hon'ble Apex Court in the case of
Indian Oil Corporation Vs. N.E.P.C.
India Ltd., (2006) 6 SCC 736 and Anand
Kumar Mohatta & Anr. Vs. State (Govt.
of NCT of Delhi) Department of Home &
Anr., 2019 (1) JIC 1 (SC).

21. On the other hand, Shri V.K.
Shahi,
learned
Additional
Advocate
General
submitted
that
the
instant
application is not maintainable. Placing
reliance on the judgment and order of the
Hon'ble Apex Court in the case of State of
Gujarat
Vs.
Afroz
Mohammed
Hasanfatta, 2019 OnLine SC 132, he
submitted that at the stage of issuing
process on the police report, the court is not
required to weigh the evidentiary value of
the materials on record. Learned A.A.G.
further submitted that on 16th September,
2018, F.I.R. No. 0260 of 2018 under
Section 406 I.P.C. was lodged by Sanjeet
Jaiswal, respondent no. 2 against the
applicants. He submitted that as per the
Excise Policy, it was obligatory on the part
of the accused persons to supply the
product within 72 hours and admittedly, the
goods were supplied belatedly. He further
submitted that it is the admitted case of the
applicants that two trucks UP32 HN 3209
and UP32 FN 8048 were checked out on
11th September, 2018 for supply of the
goods from the go-down of the applicants,
but in the statement of Harjeet Kumar,
owner of truck no. UP32 HN 3209
recorded by the Investigating Officer under
3-5 All. Ahil Sharda & Ors. Vs. State of U.P. & Anr.
1547
Section 161 Cr.P.C., he stated that he looks
after the work of his truck as well as truck
no. UP32 FN 8048 owned by his brother
and their trucks were being used for
transporting the sand and since last several
months, the trucks were standing in the
yard. Further in the statement of the
informant under Section 161 Cr.P.C., he
stated
that
the
goods
in
lieu
of
Rs.92,98,902/- were not supplied within 72
hours, therefore, he suffered a lot. Shri
V.K. Shahi also relied on the letter of
District Excise Officer, Gautam Budh
Nagar dated 18th September, 2018, written
to the Excise Commissioner, Allahabad
that
the
transporter
lost
the
goods,
therefore, the probability of affecting of
excise revenue cannot be ruled out.
Learned A.A.G. lastly submitted that the
applicants have alternative remedy of
moving discharge application before the
trial court at the appropriate stage.

22. Shri Prashant Chandra, learned Senior
Counsel appearing on behalf of the informant
submitted
that
the
charge
sheet
dated
10.02.2019 was filed after collecting the
incriminating evidence against the applicants,
on which the court below rightly taken
cognizance under Section 190(1)(b) Cr.P.C. In
support of his submission, Shri Chandra also
relied on the decision of the Hon'ble Apex
Court in the case of State of Gujarat Vs.
Afroz Mohammed Hasanfatta (supra). He
further submitted that since the entire charge
sheet has not been filed and only some extract
thereof has been annexed with the application,
therefore, the validity of entire charge sheet can
neither be assailed nor questioned, as
something, which is not before the Court,
cannot be examined. Shri Chandra also
submitted that the applicants have not come
with the clean hands and have consciously
indulged in material suppression and have
twisted facts with the object to mislead this
Court and, thus, the application is liable to
dismissed as it is not for the applicants to
choose as to what facts are to be stated. In
support of his argument, he relied on the
decision of the Hon'ble Apex Court in the case
of Bhaskar Laxman Jadhav & Ors. Vs.
Karamveer Kakasaheb Wagh Education
Society & Ors., (2013) 11 SCC 531. Further
relying on the decision of the Sau. Kamal
Shivaji
Pokarnekar
Vs.
State
of
Maharashtra & Ors. (Criminal Appeal No.
255 of 2019), he submitted that at the initial
stage of issuance of process, it is not open to the
court to stifle the proceedings by entering into
the merits of the contentions made on behalf of
the accused. He also relied on the decision of
the Hon'ble Apex Court in the cases of
Devendra Pratap Singh Vs. State of Bihar &
Anr., (2019) 4 SCC 351, S. Krishnamoorthy
Vs. Chellammal, (2015) 14 SCC 559,
Chilakamarthi Venkateshwarlu & Anr. Vs.
State of Andhra Pradesh & Ors. (Criminal
Appeal No. 1082 of 2019), Mohd. Allaudin
Khan Vs. State of Bihar & Ors., (2019) 6
SCC 107. He concluded his argument with the
emphasis that the High Court may have an
obligation to intervene under Section 482
Cr.P.C., in cases where manifest error has been
committed by the Magistrate in issuing the
process despite the fact that the alleged acts did
not at all constitute offences.

23. I have considered the arguments
advanced by the learned counsel for the
parties and gone through the record.

24. Before dealing with the facts of
the case, it is necessary to consider the
argument of learned counsel for the
complainant as well as learned Additional
Advocate
General
regarding
maintainability of the present application.

25. After going through the decisions
of the Hon'ble Apex Court in the cases of
1548 INDIAN LAW REPORTS ALLAHABAD SERIES
State of Gujarat Vs. Afroz Mohammed
Hasanfatta (supra), Bhaskar Laxman
Jadhav (supra) and Mohd. Allaudin Khan
(supra) relied by Shri Prashant Chandra, it
is evident that the Hon'ble Apex Court
categorically held that under Section 482
Cr.P.C., High Court may intervene in cases
where manifest error has been committed
by the Magistrate in issuing process despite
the fact that the alleged facts did not at all
constitute offences. In such circumstances,
it is obligatory to go through the facts of
the case and the material collected by the
Investigating
Officer.
In
such
circumstances, the argument advanced by
the learned counsel for the respondents has
no legs to stand.

26. Insofar as the submission
advanced by Shri V.K. Shahi, learned
A.A.G. that the applicants have alternative
remedy of discharge at the appropriate
stage, therefore, the application is not
maintainable, is also baseless. It is well
settled by the Hon'ble Apex Court in the
case of State of Haryana Vs. Bhajan Lal
(supra) that the inherent power under
Section 482 Cr.P.C. can be exercised.
Hon'ble Apex Court has laid down seven
guidelines explaining as to under what
circumstances, the power can be exercised.
Para 102 of the report is reproduced as
under:

"102.In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise to
secure the ends of justice, though it may
not be possible to lay down any precise,
clearly defined and sufficiently channelised
and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad
kinds of cases wherein such power should
be exercised.

(1) 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.

(2) 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.

(3) 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.

(4) 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.

(5) 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.

(6) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (under
3-5 All. Ahil Sharda & Ors. Vs. State of U.P. & Anr.
1549
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 concerned Act,
providing efficacious redress for the
grievance of the aggrieved party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
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."

27. Reiterating the parameters laid
down in the case of Bhajan Lal (supra),
Hon'ble Apex Court in the case of Rajiv
Thapar & Ors. Vs. Mohan Lal Kapoor,
(2013) 3 SCC 330 laid down that the
discretion vested in the High Court under
Section 482 of the Code can be exercised
suo motu to prevent the abuse of the
process of the Court and/or to secure the
ends of justice. Relevant part of the
judgment is as under:

"25. Section 482 CrPC is being
extracted hereunder:

"482.Saving of inherent powers
of High Court.--Nothing in this Code shall
be deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect to
any order under this Code, or to prevent
abuse of the process of any court or
otherwise to secure the ends of justice."

The discretion vested in a High
Court under Section 482 CrPC can be
exercised suo motu to prevent the abuse of
process of a court, and/or to secure the ends
of justice.

26. This Court had an occasion to
examine the matter in State of Orissa
v.Debendra Nath Padhi [(2005) 1 SCC 568
: 2005 SCC (Cri) 415] (incidentally the said
judgment was heavily relied upon by the
learned
counsel
for
the
respondent
complainant), wherein it was held thus:
(SCC p. 581, para 29)

"29. Regarding the argument of
the accused having to face the trial despite
being in a position to produce material of
unimpeachable
character
of
sterling
quality,the width of the powers of the High
Courtunder Section 482 of the Code and
Article 226 of the Constitution of India is
unlimited whereunder in the interests of
justice the High Court can make such
orders as may be necessary to prevent
abuse of the process of any court or
otherwise to secure the ends of justice
within the parameters laid down in Bhajan
Lal case [State of Haryana v. Bhajan Lal,
1992 Supp (1) SCC 335 : 1992 SCC (Cri)
426]
."
(emphasis supplied)

27. Recently, this Court again had
an occasion to examine the ambit and scope
of Section 482 CrPC in Rukmini Narvekar
v. Vijaya Satardekar [(2008) 14 SCC 1 :
(2009) 1 SCC (Cri) 721] wherein in the
main order it was observed that the width
of the powers of the High Court under
Section 482 CrPC and under Article 226 of
the Constitution of India, was unlimited. In
the said judgment, this Court held that the
High Court could make such orders as may
be necessary to prevent abuse of the
process of any court, or otherwise to secure
the ends of justice. In a concurring separate
order passed in the same case, it was
additionally observed that under Section
482 CrPC, the High Court was free to
consider even material that may be
produced on behalf of the accused, to arrive
at a decision whether the charge as framed
could
be
maintained.
The
aforesaid
parameters shall be kept in mind while we
examine whether the High Court ought to
have exercised its inherent jurisdiction
1550 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 482 CrPC in the facts and
circumstances of this case.

28. The High Court, in exercise
of its jurisdiction under Section 482
CrPC, must make a just and rightful
choice. This is not a stage of evaluating
the truthfulness or otherwise of the
allegations
levelled
by
the
prosecution/complainant
against
the
accused. Likewise, it is not a stage for
determining how weighty the defences
raised on behalf of the accused are. Even
if the accused is successful in showing
some
suspicion
or
doubt,
in
the
allegations
levelled
by
the
prosecution/complainant, it would be
impermissible to discharge the accused
before trial. This is so because it would
result in giving finality to the accusations
levelled by the prosecution/complainant,
without allowing the prosecution or the
complainant
to
adduce
evidence
to
substantiate the same. The converse is,
however, not true, because even if trial is
proceeded with, the accused is not
subjected
to
any
irreparable
consequences. The accused would still be
in a position to succeed by establishing
his defences by producing evidence in
accordance with law. There is an endless
list of judgments rendered by this Court
declaring the legal position that in a case
where the prosecution/complainant has
levelled allegations bringing out all
ingredients of the charge(s) levelled, and
have placed material before the Court,
prima facie evidencing the truthfulness of
the allegations levelled, trial must be
held.

29. The issue being examined in
the instant case is the jurisdiction of the
High Court under Section 482 CrPC, if it
chooses to quash the initiation of the
prosecution against an accused at the
stage of issuing process, or at the stage of
committal, or even at the stage of framing
of charges. These are all stages before the
commencement of the actual trial. The
same parameters would naturally be
available for later stages as well. The
power vested in the High Court under
Section 482 CrPC, at the stages referred
to hereinabove, would have far-reaching
consequences inasmuch as it would
negate
the
prosecution's/complainant's
case
without
allowing
the
prosecution/complainant
to
lead
evidence. Such a determination must
always be rendered with caution, care and
circumspection.