# Amitabh Kumar Das v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 491
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-09
- **Case number:** Application U/S 482 No. 39796 of 2017
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amitabh-kumar-das-v-state-of-u-p-anr-45090
- **Pages:** 5

## Headnote

A. Inherent Jurisdiction - Section 482 -
Cr.P.C. - Scope - the Trial Court and not
the High Court is expected to analytically
analyze the facts and factual matrix of
case.

Application u/s 482 rejected. (E-10)

List of cases cited: -

## Text

1 All. Amitabh Kumar Das Vs. State of U.P. & Anr.
491
'much
stronger
evidence
than
mere
possibility of their (i.e. appellants) complicity
has come on record. There is no satisfaction
of this nature. Even if we presume that the
trial court was not apprised of the same at the
time when it passed the order (as the
appellants were not on the scene at that time),
what is more troubling is that even when this
material on record was specifically brought to
the notice of the High Court in the Revision
Petition filed by the appellants, the High
Court too blissfully ignored the said material.
Except reproducing the discussion contained
in the order of the trial court and expressing
agreement therewith, nothing more has been
done. Such orders cannot stand judicial
scrutiny."

10. In this case the Investigating Officer
has found that the accused Anil @ Anil
Kumar was not present at the place of
occurrence at the time of incident and that
evidence has been ignored by the trial court
while summoning the present accused and the
trial court went by the depositions of the
complainant and some other persons and the
evidence recorded during trial was nothing
more than the statements which were already
there under Section 161 Cr.P.C. recorded at
the time of investigation of the case. No
doubt, the trial court would be competent to
exercise its power even on the basis of such
statements recorded before it in examinationin-chief. However, in a case like the present
where plethora of evidence was collected by
the IO during investigation which suggested
otherwise, the trial court was at least duty
bound to look into the same while forming
prima facie opinion and to see as to whether
'much stronger evidence than mere possibility
of their (i.e. appellants) complicity has come
on record. No satisfaction of this nature has
been recorded by the trial court while
disposing of the application moved under
Section 319 Cr.P.C.

11. The application is allowed and
the order of summoning of applicant under
Section 319 Cr.P.C. is set aside and in the
interest of justice it is directed that the trial
court shall pass order on the application
moved under Section 319 Cr.P.C. after
considering the evidence recorded by the
trial court and considering the evidence
which was collected by the Investigating
Officer during investigation afresh.
----------
(2020)1ILR 491

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 39796 of 2017

Amitabh Kumar Das ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ayush Khanna

Counsel for the Opposite Parties:
A.G.A., Sri Ankur Singh Kushwaha

A. Inherent Jurisdiction - Section 482 -
Cr.P.C. - Scope - the Trial Court and not
the High Court is expected to analytically
analyze the facts and factual matrix of
case.

Application u/s 482 rejected. (E-10)

List of cases cited: -
1. G. Sagar Suri and anr Vs. State of U.P. and
ors (2000) 2 SCC 636
2. Sunil Kumar Vs. Excorts Yamaha Motors Ltd.
and ors (1999) 8 SCC 468
3. Sangeetaben Mahendrabhai Patel Vs. State
of Gujrat and anr 2012 LawSuit (SC) 236
492 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Sau. Kamal Sivaji Pokarnekar Vs. The State
of Maharashtra and ors Criminal Appeal No.
255 of 2019 (Arising out of SLP (Crl.) No. 7513
of 2014)
5. State of Andhra Praesh Vs. Gaurishetty
Mahesh JT 2010(6) SC 588: (2010) 6 SCALE
767: 2010 Cr. LJ 3844
6. Hamida Vs. Rashid (2008) 1 SCC 474
7. Monica Kumar Vs. State of Uttar Pradesh
(2008) 8 SCC 781
8. Popular Muthiah Vs. State, Represented by
Inspector of Police, (2006) 7 SCC 296
9. Dhanlakshmi Vs. R.Prasana Kumar (1990) Cr.
LJ 320 (DB): AIR 1990 SC 494
10. State of Bihar vs. Murad Ali Khan (1989) Cr
LJ 1005: AIR 1989 SC 1

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

1. The applicant Amitabh Kumar
Das, by means of this application under
Section 482 Cr.P.C., has invoked the
inherent jurisdiction of the Court with
prayer to quash the entire proceeding of
Case No. 4026 of 2017, based on cahrgesheet dated 16.8.2016, arising out of case
crime No. 551 of 2017, for an offence
unde Sections 420, 406 IPC, P.S. Nai
Mandi, District Muzaffar Nagar, pending
in the curt of Special Chief Judicial
Magistrate, Muzaffar Nagar.

2. Heard learned counsel for the
applicant and learned A.G.A. for the State.

3. Learned counsel for the applicant
argued that no ingredients of offence
required to constitute offence punishable
under Section 420 and 406 of IPC, were
made out. Even then, charge-sheet has
been filed whereas it was a transaction
based
on
the
basis
of
mutual
understanding, by way of memorandum of
understanding,
wherein
terms
and
conditions were mentioned. Subsequently,
informant-complainant
withdrew
from
above business
by
way
of
mutual
settlement and due amount of Rs 52 lacs
were paid by applicant. But under coercion
amount was raised 1.24 crores and
cheques were taken in blank for rest of
amount and for this a case for offence
punishable under Section 138 of N.I. Act
has been filed and is pending whereas
much before this alleged report as well as
filing of complaint, the applicant started
making payment back for the amount and
he paid back Rs. 52 lacs. Hence, there was
no mensrea or aim of deceit since the
beginning of business or criminal breach
of trust. Moreso, Apex Court in G. Sagar
Suri and another Vs. State of U.P. and
others, (2000) 2 SCC 636 and Sunil
Kumar Vs. Excorts Yamaha Motors
Ltd. and others, (1999) 8 SCC 468, has
propounded that once a complaint case has
been filed for offence punishable under
Section 138 of N.I. Act, subsequently, for
the same transaction, if case is being filed
for offences punishable under Sections
420, 406 I.P.C., then certainly, this is a
misuse of process of law because it is to
coerce for ensuring payment in a case
under N.I. Act. Hence, High Court is well
within
jurisdiction
to
quash
this
proceeding.

4. Learned counsel for the opposite
party No. 2 argued that it was a case
wherein deceit was since the beginning.
Amitabh Kumar Das entered in friendship
with son of complainant-informant i.e.
Devendra Kumar. He came Muzaffar
Nagar, he showed his business plan with
deceitful assurance for return under his
persuasion, complainant, who is retired
1 All. Amitabh Kumar Das Vs. State of U.P. & Anr.
493
Professor and Member of U.P. Higher
Education
Commission
and
his
son
Devendra Kumar invested huge amount
under trust of return of same by accused
but he proved to be non performer of his
promise. Then informant's son withdrew
himself with a request for making his
settlement clear. Applicant entered in
settlement whereupon 1.24 crores liability
existed but he made payment of Rs. 52
lacs only, for rest amount he has deposited
15 cheques and he made conversation for
making payment by way of depositing the
same as per his request. Cheques were
deposited but dishonoured. This too, was
conspiracy and deceitful act, for which
subsequent
offence
punishable
under
Section 138 of N.I. Act was made out and
complaint for same was filed and is still
pending but the offence which was
committed
since
the
beginning
by
inducing for payment of such a huge
amount
under
deceitful
assurance
punishable under Section 420 of IPC, was
since the beginning of transaction and as
money paid under the trust of its return,
was not paid back deliberately with
malice. Hence, it was criminal breach of
trust punishable under Section 406 of IPC,
for which a police report under Section
173 of Cr.P.C. has been filed and
cognizance
for
it
taken.
There
is
judgement of Apex Court in 2012
LawSuit
(SC)
236
Sangeetaben
Mahendrabhai Patel Vs. State of Gujrat
and another as well as a judgment in
Criminal Appeal No. 255 of 2019
(Arising out of SLP (Crl.) No. 7513 of
2014) Sau. Kamal Sivaji Pokarnekar Vs.
The State of Maharashra and others,
wherein Apex Court has propounded that
civil liability and offence punishable
regarding it under Section 420 and 406 of
I.P.C. may run concurrently beside being a
proceeding pending. Hence, dishonour of
cheque and this under conspiracy was
there, for which specific offence of
Section 138 of N.I. Act made out, for
which cognizance have been taken and
case is pending but the offence of deceit
and cheating since the beginning of this
transaction under fraudulent assurance for
investing money and getting return in a
business plan, which was deceitful since
the beginning and thereby invested such
huge amount and then after breach of trust
under Section 420 and 406 of IPC, was
offence, which was other than offence
punishable under Section 138 of N.I. Act.
Hence, both proceeding were for those two
offences. Moreso, this Court in exercise of
inherent power power under Section 482
of Cr.P.C., is not expected to make
analytical analysis of evidence and fact of
the case because the same is within the
domain of trial Court and is question of
trial, to be seen during trial. Hence, this
proceeding be dismissed.

5. Learned AGA has vehemently
opposed the above prayer.

6. Having heard learned counsel for
both sides and gone through the material
placed on record, it is apparent that First
Information Report of Case Crime No. 551
of 2017, for offence punishable under
Sections 406 and 420 of I.P.C. was filed
by Dr. Dharampal Singh against Amitabh
Kumar Das. Subsequently, it became a
business
with
no
assurance,
when
Devendra
Kumar
along
with
and
demanded back his money, which was said
to be of 1.24 crores, then a cash of Rs. 52
lacs were paid back to Devendra Kumar
and it was said that for remaining amount
15 cheques were delivered but those
cheques were dishonoured, for which
criminal case for offence punishable under
Section 138 of N.I. Act, is pending. But,
494 INDIAN LAW REPORTS ALLAHABAD SERIES
for the offence of deceit and cheating
punishable under Section 420 of I.P.C. and
criminal breach of trust under section 406
of I.P.C. is there. This investigation
resulted in submission of charge-sheet,
over which cognizance was taken by
Magistrate concerned. For this Criminal
case the accusation is of deceit since the
beginning
of
transaction
i.e.
under
fraudulent plan, this was acted upon by
Amitabh Kumar Das and investigation has
resulted in submission of charge-sheet.
Payment of Rs. 52 lacs has been accepted
by learned counsel for the applicant. Rest
of amount is disputed but dues of Rs. 52
lacs were said to be there and this amount
was paid since 2015 to 2017, whereas
communication in between both sides, has
been appended as a part of affidavit, from
which it is apparent that rest of amount
were also assured to be paid on deposit of
cheque. Though, it is a question of fact to
be seen and analysed by trial Court and
this Court in exercise of inherent power
power under Section 482 of Cr.P.C., is not
expected to analyse analytically the facts
and factual matrix of case because the
same is to be seen by trial Court. At the
stage of summoning or taking cognizance
over a police report, Magistrate has gone
through evidence collected by I.O. and on
the basis of it, cognizance has been taken.
Accused has been summoned for offence
punishable under Sections 406 and 420
I.P.C. Those facts is not to be interfered by
this Court in exercise of above inherent
jurisdiction rather it is Magistrate to see
through the course of trial.

7. This Court in exercise of inherent ,
as the same is the question before trial
court. has held as under:-

8. Apex Court in State of Andhra
Pradesh v. Gaurishetty Mahesh, JT 2010
(6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ
3844 has propounded that "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".

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
1 All. Ajay Katara Vs. State of U.P. & Anr.
495
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".

9. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded as
above. The impugned order was well
based on evidence and facts collected by
Magistrate in its enquiry. There seems to
be no misuse of process of law. Hence,
this proceeding merits its dismissal.

10. Dismissed, accordingly.
----------
(2020)1ILR 495

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2019

BEFORE
THE HON'BLE RAJUL BHARGAVA, J.

Application U/S 482 Cr. P.C. No. 41533 of 2019

Ajay Katara ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vimlendu Tripathi, Sri Ajay Kumar Srivastava, Sri
Andleeb Naqvi, Sri Bhavya Sahai, Sri Brajesh Sahai

Counsel for the Opposite Parties:
G.A., Sri Santosh Kumar Yadav, Sri
Pradeep Kumar, Sri Anoop Trivedi
A. Code of Criminal Procedure - Section 482 -
Malicious
Prosecution-Absence
of
corroborative
evidence-Except
for
the
statements of the victim, her husband (
accused/witness) no other corroborative
evidence against applicant and co-accusedNo date, time, parentage and residence of the
accused, whose names were introduced by
the prosecutrix with an ulterior motive after
two
months
of
kidnapping
by
accused/witness regarding commission of
gang-rape as alleged has been disclosed by
the victim-No response/counter affidavit
whatsoever filed by the informant/opposite
party no.2 to the averments made in the
application-Hence averments made in the
application assumed to be correct-No test
identification-Fit case where the Court in
exercise of its inherent power under Section
482
Cr.P.C.
should
quash
the
entire
proceedings against the applicant as the
same squarely falls within the para 3 & 7 of
Bhajan Lal's case. (Para 20, 21, 22 & 24)

Criminal Misc. Application u/s 482 Cr.P.C
allowed. (E-3)

List of cases cited: -

1. Ram Dayal & ors. Vs. St. of U.P. & ors.
[2019 (4) ADJ 404]

2. Kaleem & 04 ors. Vs. St. of U.P. & anr. 2019
LawSuit(All) 1513

3. Parbatbhai Aahir Vs. St. of Guj. 2017 SCC
OnLine SC 1189

4. St. of Bih. Vs. Rajendra Agrawal 1996
LawSuit (SC) 143

5. Mushtaq Ahmad Vs. Mohd. Habibur Rehman
Faizi 1996 LawSuit (SC) 230

6. St. of U.P. Vs. O.P. Sharma 1996 LawSuit (SC) 276

7. St. of H.P Vs. Pirthi Chand 1995 LawSuit (SC) 1177
8. Herrignton Vs. British Railways Board (1972
(2) WLR)
9. St. of Har. Vs. Bhajan Lal 1992 SCC (Crl) 426