# Amar Cheema v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2019) 2 ILRA 559
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-17
- **Case number:** Application u/s 482 No. 32621 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-cheema-v-state-of-u-p-anr-opp-parties-44830
- **Pages:** 4

## Headnote

A. Indian Penal Code, 1860 - Sections 420
and 406 - Prima facie offences of fraud and
deception, thereby, delivery of property by
fraudulent acts made out against the
applicant- summoned on the basis of
evidence recorded under Sections 200 and
202 Cr.P.C. - Exercise of inherent powers
under section 482 Cr.P.C. - High Court is not
expected to analyse factual evidence, which
is to be placed during trial before the Trial
court. (Para 4,5,6 & 7)

It is apparent that this was not a case
regarding an embezzlement of capital of the
Company, rather the Company, in question,
was constituted upon the instigation of Arjun
Cheema, with three other Directors, in which
complainant, was an authorised signatory, on
behalf of other Directors of the Company and
while there occurred loss in the business of
the Company, in the year 2011, the Company
was wound-up, however, till then there was no
loss, rather a capital was to be refunded back
to the Uro Tiles Private Company Limited for
having its payment back. There was no
investment
by
other
Directors,
except
investment of Rs. 27 Lakhs by the complainant
and this payment, on being returned back by
the Uro Tiles Private Company Limited, was to
be
refunded
to
the
complainant.
For
completion of this winding up proceeding,
Arjun Cheema and Applicant were authorised
and handed over documents, seal and
password etc. They made promise of winding
up of the Company, but it came to notice that
the Company was not wound-up rather it was
kept on running till 2018, with fraudulent
signature of the complainant. Then, effort was
made for getting this fact known to those
Companies, which were dealing with the
Company, in question, under fraud. On
demand
of
money
being
made,
they
threatened of sending the complainant to jail
and demanded money for winding up of the
Company.

While exercising jurisdiction under section 482
of the Code, the High Court would not
ordinarily embark upon an enquiry whether
the evidence in question is reliable or not or
whether on a reasonable apprehension of it
accusation would not be sustained. That is the
function of the trial Judge/Court.

There was fraud and deception, thereby,
delivery of property by fraudulent acts by
those two persons, who have been summoned
and this was on the basis of evidenced,
recorded, under Sections 200 and 202 Cr.P.C.
Magistrate,
after
appreciating
facts
and
evidence, brought on record, has passed the
impugned
summoning
order.
Hence,
Application under Section 482 of Cr.P.C., stands
dismissed accordingly.

Application u/s 482 Cr.P.C. dismissed (E-3)

Case law relied upon/discussed: -

## Text

2 All. Amar Cheema Vs State of U.P. & Anr.
559
B(4) of the Evidence Act, if he is so
advised and, the trial court will take
appropriate
decision
on
such
an
application in accordance with law.
----------

(2019)10ILR A 559

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.09.2019

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application u/s 482 No. 32621 of 2019

Amar Cheema ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Vidit Narayan Mishra

Counsel for the Opposite Parties:
G.A.

A. Indian Penal Code, 1860 - Sections 420
and 406 - Prima facie offences of fraud and
deception, thereby, delivery of property by
fraudulent acts made out against the
applicant- summoned on the basis of
evidence recorded under Sections 200 and
202 Cr.P.C. - Exercise of inherent powers
under section 482 Cr.P.C. - High Court is not
expected to analyse factual evidence, which
is to be placed during trial before the Trial
court. (Para 4,5,6 & 7)

It is apparent that this was not a case
regarding an embezzlement of capital of the
Company, rather the Company, in question,
was constituted upon the instigation of Arjun
Cheema, with three other Directors, in which
complainant, was an authorised signatory, on
behalf of other Directors of the Company and
while there occurred loss in the business of
the Company, in the year 2011, the Company
was wound-up, however, till then there was no
loss, rather a capital was to be refunded back
to the Uro Tiles Private Company Limited for
having its payment back. There was no
investment
by
other
Directors,
except
investment of Rs. 27 Lakhs by the complainant
and this payment, on being returned back by
the Uro Tiles Private Company Limited, was to
be
refunded
to
the
complainant.
For
completion of this winding up proceeding,
Arjun Cheema and Applicant were authorised
and handed over documents, seal and
password etc. They made promise of winding
up of the Company, but it came to notice that
the Company was not wound-up rather it was
kept on running till 2018, with fraudulent
signature of the complainant. Then, effort was
made for getting this fact known to those
Companies, which were dealing with the
Company, in question, under fraud. On
demand
of
money
being
made,
they
threatened of sending the complainant to jail
and demanded money for winding up of the
Company.

While exercising jurisdiction under section 482
of the Code, the High Court would not
ordinarily embark upon an enquiry whether
the evidence in question is reliable or not or
whether on a reasonable apprehension of it
accusation would not be sustained. That is the
function of the trial Judge/Court.

There was fraud and deception, thereby,
delivery of property by fraudulent acts by
those two persons, who have been summoned
and this was on the basis of evidenced,
recorded, under Sections 200 and 202 Cr.P.C.
Magistrate,
after
appreciating
facts
and
evidence, brought on record, has passed the
impugned
summoning
order.
Hence,
Application under Section 482 of Cr.P.C., stands
dismissed accordingly.

Application u/s 482 Cr.P.C. dismissed (E-3)

Case law relied upon/discussed: -

1. St. of A.P. Vs Gaurishetty Mahesh JT 2010
(6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ
3844

2. Hamida Vs Rashid (2008) 1 SCC 474
560 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Monica Kumar Vs St. of U.P. (2008) 8 SCC
781
4. Popular Muthiah Vs St. Represented by
Inspector of Police (2006) 7 SCC 296
5. Dhanlakshmi Vs R. Prasana Kumar (1990)
Cr LJ 320 (DB): AIR 1990 SC 49
6. St. of Bihar Vs Murad Ali Khan (1989) Cr LJ
1005: AIR 1989 SC 1
7. Amrawati & anr. Vs St. of U.P. reported in
(2004) 57 ALR 290
8. (2009) 3 ADJ 322 (SC) Lal Kamlendra
Pratap Singh Vs St. of U.P.

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. Heard learned counsel for
applicant, moved by the applicant, Amar
Cheema, under Section 482 of Criminal
Procedure Code, 1973 (in short 'Cr.P.C.')
as well as learned AGA, appearing on
behalf of State of U.P. and perused the
record.

2. Learned counsel for the applicant
argued that the applicant has been
summoned because of being brother of
Arjun Cheema. He is neither Director of
Company, in question, nor was having
any concern with the Company. A
complaint was filed with incorrect facts
that there were three Directors of the
Company, whereas the documents, filed
with this Application, are to the effect that
there were four Directors of the Company
and the complainant was neither Director
nor is having any concern with above
Company. It was said that Company was
wound-up in the year 2011, whereas the
Company was running till 2018. All taxes
were being paid. If any embezzlement in
the capital of the Company was there, the
Directors will be responsible for the same,
whereas present applicant, Amar Cheema,
has no concern with the Company, but the
Trial court of Additional Chief Judicial
Magistrate, Gautam Buddh Nagar, vide
summoning order, dated 22.10.2018,
passed in Criminal Complaint No. 4645
of 2018 (Abhimanyu Ahlawat vs. Amar
Cheema & others), has summoned the
applicant,
alongwith one other,
for
offence, punishable, under Sections 420
and 406 IPC, Police Station Sector 39,
NOIDA, District Gautam Buddh Nagar.
Hence, this Application, under Section
482 of Cr.P.C., with a prayer for quashing
of the impugned summoning order and
entire criminal proceeding of Complaint
Case No. 4645 of 2018 (Abhimanyu
Ahlawat vs. Amar Cheema & others),
with a further prayer for staying further
proceeding of above case till disposal of
this Application.

3. Learned AGA, appearing for the
State of U.P, has vehemently opposed this
Application, under Section 482 of Cr.P.C.

4. From very perusal of the of the
complaint and the impugned summoning
order, it is apparent that this was not a
case regarding an embezzlement of
capital
of
the
Company,
rather
complainant, Abhimanyu Ahlawat, by his
complaint as well as statement, recorded,
under Section 200 of Cr.P.C., has said
that the Company, in question, was
constituted upon the instigation of Arjun
Cheema, with three other Directors, in
which complainant, was an authorised
signatory, on behalf of other Directors of
the Company and while the there occurred
loss in the business of the Company, in
the year 2011, the Company was woundup, however, till then there was no loss,
rather a capital was to be refunded back to
2 All. Amar Cheema Vs State of U.P. & Anr.
561
the Uro Tiles Private Company Limited
for having its payment back. There was
no investment by other Directors, except
investment of Rs. 27 Lakhs by the
complainant and this payment, on being
returned back by the Uro Tiles Private
Company Limited, was to be refunded to
the complainant. For completion of this
winding up proceeding, Arjun Cheema
and Amar Cheema were authorised and
handed
over
documents,
seal
and
password etc. They made promise of
winding up of the Company, but it came
to notice that the Company was not
wound-up, rather it was kept on running
till 2018, with fraudulent signature of the
complainant. Then, effort was made for
getting
this
fact
known
to
those
Companies, which were dealing with the
Company, in question, under fraud. On
demand of money being made, they
threatened of sending the complainant to
jail and demanded money for winding up
of the Company. Meaning thereby, there
was
fraud
and
deception,
thereby,
delivery of property by fraudulent acts by
those two persons, who have been
summoned and this was on the basis of
evidenced, recorded, under Sections 200
and
202
Cr.P.C.
Magistrate,
after
appreciating facts and evidence, brought
on record, has passed the impugned
summoning order.

This Court, in exercise of inherent
jurisdiction, under Section 482 of Cr.P.C.,
is not expected to appreciate factual
aspect because the same is a question of
trial before the Trial.

5. As per law propounded by the
Apex Court in State of Andhra Pradesh
v. Gaurishetty Mahesh, JT 2010 (6) SC
588: (2010) 6 SCALE 767: 2010 Cr. LJ
3844 "While exercising jurisdiction under
section 482 of the Code, the High Court
would not ordinarily embark upon an
enquiry whether the evidence in question
is reliable or not or whether on a
reasonable apprehension of it accusation
would not be sustained. That is the
function of the trial Judge/Court". In
another subsequent Hamida v. Rashid,
(2008) 1 SCC 474, hon'ble Apex Court
propounded that "Ends of justice would
be better served if valuable time of the
Court is spent in hearing those appeals
rather than entertaining petitions under
Section 482 at an interlocutory stage
which after filed with some oblique
motive in order to circumvent the
prescribed procedure, or to delay the trial
which enable to win over the witness or
may disinterested in giving evidence,
ultimately resulting in miscarriage of
Justice". In again another subsequent
Monica Kumar v. State of Uttar
Pradesh, (2008) 8 SCC 781, the Apex
Court
has
propounded
"Inherent
jurisdiction under Section 482 has to be
exercised sparingly, carefully and with
caution and only when such exercise is
justified by the tests specifically laid
down in the section itself." While
interpreting this jurisdiction of High
Court Apex Court in Popular Muthiah v.
State, Represented by Inspector of
Police,
(2006)
7
SCC
296
has
propounded "High Court can exercise
jurisdiction suo motu in the interest of
justice. It can do so while exercising other
jurisdictions
such
as
appellate
or
revisional
jurisdiction.
No
formal
application
for
invoking
inherent
jurisdiction
is
necessary.
Inherent
jurisdiction can be exercised in respect of
substantive as well as procedural matters.
It can as well be exercised in respect of
incidental
or
supplemental
power
irrespective of nature of proceedings".
562 INDIAN LAW REPORTS ALLAHABAD SERIES

Regarding prevention of abuse of
process
of
Court,
Apex
Court
in
Dhanlakshmi
v.
R.Prasana
Kumar,
(1990) Cr LJ 320 (DB): AIR 1990 SC 494
has propounded "To prevent abuse of the
process of the Court, High Court in exercise
of its inherent powers under section 482
could quash the proceedings but there
would be justification for interference only
when the complaint did not disclose any
offence or was frivolous vexatious or
oppressive" as well as in State of Bihar v.
Murad Ali Khan, (1989) Cr LJ 1005:
AIR 1989 SC 1, Apex Court propounded
"In exercising jurisdiction under Section
482 High Court would not embark upon an
enquiry whether the allegations in the
complaint are likely to be established by
evidence or not".

6. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded
as above.

7. In view of what has been
discussed above, there is no ground for
interference in the proceeding, as prayed
for by this Application, under Section 482
of Cr.P.C., thereby, this Application
merits
its
dismissal
and
it
stands
dismissed, accordingly.
----------

(2019)10ILR A 562

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2019

BEFORE

THE HON'BLE RAJEEV MISRA, J.

Application u/s 482 No. 38644 of 2016

Jaspreet Singh ...Applicant (In Jail)
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Sikandar B. Kochar

Counsel for the Opposite Parties:
A.G.A., Sri Anoop Trivedi, Sri Abhinav
Gaur, Sri Vibhu Rai

A. Cr.P.C., 1973 - Section 362 -Ex Parte
order finally deciding- Resulting in serious
prejudice to the Opposite Party No. 2-
Jurisdiction of the Court to entertain recall
application- Replied affirmatively. (Para
37,48,49,68,69,79, 83 & 84)

1. Following questions arise for determination
in this recall application:

I. Whether Complaint Case No.1716
of 2016 (Nirmal Singh Garewal Vs. Nitin
Jaiswal and others) under Sections 307, 436,
392, 380, 504 and 506 I.P.C., P.S. Kotwali
Bareilly, District-Bareilly, arising out of Case
Crime No. 2675 of 2012, under Sections 307,
452, 427, 504, 506, 380, 426 and 392 I.P.C.,
P.S. Kotwali Bareilly, District-Bareilly and S.T.
No. 123 of 2013 (State Vs. Nirmal Singh
Garewal and others) under Sections 452 and
307 I.P.C. P.S. Kotwali Bareilly, District-Bareilly,
arising out of Case Crime No. 2568 of 2012
under Sections 452, 307 I.P.C. P.S. Kotwali
Bareilly, District-Bareilly are cross-cases.

HELD :- Question No.1 is answered in
negative that two case crime numbers, are not
cross cases, but they relate to different
incidents which occurred at different places
and at different points of time.

II. Whether the ex-parte order dated
15.12.2016 passed by this Court in exercise of
its jurisdiction under Section 482 Cr.P.C. has
caused serious prejudice to opposite party
no.2, Nitin Jaiswal and can be recalled at the
behest of opposite party no.2, who admittedly
was not heard at the time of passing of order
dated 15.12.2016.

III. Whether the bar of Section 362
Cr.P.C. will come into play regarding recall of