# Rohit Agarwal v. State of U.P

- **Citation:** (2023) 10 ILRA 446
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-05
- **Case number:** Application U/S 482 No. 8055 of 2023
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rohit-agarwal-v-state-of-u-p-49348
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Sections
409, 420, 467, 468, 471 & 408 - The Oaths
Act, 1969 - Section 7 - Proceedings and
evidence not invalidated by omission of oath
or irregularity - ,The Allahabad High Court
Rules' 1952 -Chapter IV Rule 17, 18 - oath
or
affirmation
by
the
deponent
and
correction
in
the
affidavit
-
'no
interlineation, alteration or erasures shall be
made in an affidavit after it has been sworn'
- two categories of defects in an affidavit:
'curable defect' and 'incurable defect' -
Curable defects do not cause prejudice or
substantially change the object for which
the affidavit is given - defects in the
affidavit can be removed, if it is curable -
Rules blatantly cannot be ignored but at
the same time, this cannot be allowed to
be a tool to circumvent the justice as the
Rules are framed to aid the speedy
dispensation of justice. (Para -10,12,13)

Application
filed
challenging
criminal
proceedings - preliminary objection - Rules 1952
does not permit any correction in the affidavit,
10 All. Rohit Agarwal Vs. State of U.P.
447
after it is sworn in - provision states that
affidavits cannot be corrected post-sworn - issue
of cured affidavits addressed using the Court's
inherent
powers
and
established
legal
propositions - FIR filed against applicant and
other accused persons - applicant, a Director of
Wealth Mantra Limited, conducted share trading
in collusion with other Directors since 1995 -
proceeds were misappropriated - multiple
requests for return - shares were not returned -
money in complainant's account not paid.(Para
- 9,10,17)

HELD:- Deponent's qualification in the affidavit
clause description is a curable defect, as it has
no substantial impact on the issue or likely to
cause prejudice to the other side. Preliminary
objection rejected. Applicant permitted to
correct affidavit clause.(Para -13, 14, 15)

Criminal proceedings stayed till the next
date of listing. (E-7)

LIST OF CASES CITED:-

## Text

446 INDIAN LAW REPORTS ALLAHABAD SERIES
the property lies with the Government of
India. Both the aforesaid letters were issued
in the matters of two specific persons
unconnected with the present matter and
letters those were not in existence when the
applicant
had
given
his
report
on
17.01.2015. The applicant had no occasion
to take into consideration the opinion of the
aforesaid two authorities.

34. Even in the letters dated
20.07.2017 issued by the Estate Officer &
Executive Officer, Municipal Council,
Ambala and the letter dated 14.10.2020
issued by the S.D.M., there is a gross
conflict of opinion as the former claims that
the property in cantonment vests in the
Government of Haryana whereas the latter
claims
that
the
same
vests
in
the
Government of India.

35. In the aforesaid circumstances, the
allegation of the applicant having entered into
a criminal conspiracy with unspecified
persons and having deliberately given a
wrong opinion in furtherance of the criminal
conspiracy, appears to be bald and omnibus
in character and it does not make out a case
for trial of the applicant, who is a practicing
Advocate
aged
about
71
years,
for
commission of the offence of criminal
conspiracy. The proceeding for his trial
would result in an abuse of the process of law
and it would not serve the ends of justice.

36. Accordingly, the application under
Section 482 Cr.P.C. filed by the applicant is
allowed. The impugned cognizance and
summoning order dated 27.01.2023 passed
by learned Special Judicial Magistrate, CBI
(Pollution), Lucknow in Criminal Case No.
126506 of 2022, arising out of FIR No.
RC2(E)/2022/CBI/SCB/Lucknow, and the
entire proceedings of the aforesaid case, so
far as the same relate to the applicant, are
hereby quashed.
---------
(2023) 10 ILRA 446
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.10.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 8055 of 2023

Rohit Agarwal ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Pranjal Krishna

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Sections
409, 420, 467, 468, 471 & 408 - The Oaths
Act, 1969 - Section 7 - Proceedings and
evidence not invalidated by omission of oath
or irregularity - ,The Allahabad High Court
Rules' 1952 -Chapter IV Rule 17, 18 - oath
or
affirmation
by
the
deponent
and
correction
in
the
affidavit
-
'no
interlineation, alteration or erasures shall be
made in an affidavit after it has been sworn'
- two categories of defects in an affidavit:
'curable defect' and 'incurable defect' -
Curable defects do not cause prejudice or
substantially change the object for which
the affidavit is given - defects in the
affidavit can be removed, if it is curable -
Rules blatantly cannot be ignored but at
the same time, this cannot be allowed to
be a tool to circumvent the justice as the
Rules are framed to aid the speedy
dispensation of justice. (Para -10,12,13)

Application
filed
challenging
criminal
proceedings - preliminary objection - Rules 1952
does not permit any correction in the affidavit,
10 All. Rohit Agarwal Vs. State of U.P.
447
after it is sworn in - provision states that
affidavits cannot be corrected post-sworn - issue
of cured affidavits addressed using the Court's
inherent
powers
and
established
legal
propositions - FIR filed against applicant and
other accused persons - applicant, a Director of
Wealth Mantra Limited, conducted share trading
in collusion with other Directors since 1995 -
proceeds were misappropriated - multiple
requests for return - shares were not returned -
money in complainant's account not paid.(Para
- 9,10,17)

HELD:- Deponent's qualification in the affidavit
clause description is a curable defect, as it has
no substantial impact on the issue or likely to
cause prejudice to the other side. Preliminary
objection rejected. Applicant permitted to
correct affidavit clause.(Para -13, 14, 15)

Criminal proceedings stayed till the next
date of listing. (E-7)

LIST OF CASES CITED:-

1. Associated Journals Ltd. Vs Mysore Paper
Mills Ltd, (2006) 6 SCC 197

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. At inception of argument, the
learned A.G.A. has raised preliminary
objection that learned counel for the
applicant
has
filed
a
supplementary
affidavit dated 8.8.2023 thereby seeking the
permission of this Court, for correction in
the affidavit, which has been filed in
support of the instant application.

2. He submits that Chapter IV Rule 18
of the Allahabad High Court Rules, 1952
(hereinafter referred to as 'the Rules 1952')
provides that 'no interlineation, alteration or
erasures shall be made in an affidavit after
it has been sworn'. He added that there is a
specific bar for any correction, alteration,
etc in all affidavits filed before this Court
and, therefore, it is not open for any of the
applicant or petitioner or the person who
has sworn in the affidavit, to subsequently
ask for any change, in the affidavit and,
therefore, submission is that the applicant
may not be permitted to correct the
affidavit
and,
therefore,
the
instant
application may be dismissed on this
ground alone.

3. Replying the aforesaid objections,
the counsel for the applicant submits that
the provisions of oath or affirmation by a
deponent, has been prescribed under
Chapter IV Rule 17 of Rules 1952 which
speaks in consonance with the provisions
of the Indian Oaths Act, 1873, which was
later on repealed and the Oaths Act, 1969
was promulgated. He submits that section
297 of Cr.P.C. says about the authorities
before whom, the affidavits, may be sworn.
Section
297
of
Cr.P.C.
are
quoted
hereinunder:-

"297. Authorities before whom
affidavits may be sworn.-(1) Affidavits to
be used before any Court under this Code
may be sworn or affirmed before- 4 [(a)
any Judge or Judicial or Executive
Magistrate, or] (b) any Commissioner of
Oaths appointed by a High Court or Court
of Session, or (c) any notary appointed
under the Notaries Act, 1952 (53 of 1952).

(2) Affidavits shall be confined to,
and shall state separately, such facts as the
deponent is able to prove from his own
knowledge and such facts as he has
reasonable ground to believe to be true,
and in the latter case, the deponent shall
clearly state the grounds of such belief.

(3) The Court may order any
scandalous and irrelevant matter in the
affidavit to be struck out or amended."

4. Referring the aforesaid, he submits
that sub clause (3) of Section 297 of Cr.P.C.
448 INDIAN LAW REPORTS ALLAHABAD SERIES
provides that 'the court may order any
scandalous and irrelevant matter in the
affidavit to be struck out or amended',
which shows the power vested with the
Court to allow amendment or to struck off
any fact or information from the affidavit. He
argued that in Chapter XII, Rule 1 (2) of the
Rules 1952, it has been provided that all
corrections and alterations, in the affidavit,
shall be initialed by the Oath Commissioners
before whom such affidavit (or affidavits) is
(or are) sworn in.'

5. Further added that Section 7 of the
Oaths Act 1969 also says that 'proceedings
and evidence would not invalidate by
omission of oath or irregularity. Section 7 of
Oaths Act is reproduced hereinunder:-

"7. Proceedings and evidence not
invalidated
by
omission
of
oath
or
irregularity.- No omission to take any oath or
make any affirmation, no substitution of any
one for any other of them, and no irregularity
whatever in the administration of any oath or
affirmation or in the form in which it is
administered, shall invalidate any proceeding
or
render
inadmissible
any
evidence
whatever, in or in respect of which such
omission, substitution or irregularity took
place, or shall affect the obligation of a
witness to state the truth."

6. In support of his contention, he has
placed reliance on the Judgment of the Apex
Court rendered in the case of Malhotra Steel
Syndicate Vs. Punjab Chemi-Plants Ltd,
1993 Supp (3) SCC 565, and submits that the
Hon'ble Apex Court has held that 'even if
there is some slight defect or irregularity in
filing of the affidavit, an opportunity should
be given to rectify the same'.

7. Further placing reliance on a
Judgment of the Apex Court in the case of
Associated Journals Ltd. Vs. Mysore
Paper Mills Ltd, (2006) 6 SCC 197, he has
referred paras 21, 22 and 23 of the aforesaid
Judgment, which are quoted as under:-

"21. A careful perusal of the
affidavit filed by the respondent and Form 3
as prescribed under Rule 21 would show that
there is substantial compliance with the said
rule. A three-Judge Bench of this Court in
an identical matter in Malhotra Steel
Syndicate v. Punjab Chemi-Plants Ltd. has
also opined that even if there is some slight
defect or irregularity in the filing of
affidavit, the appellant should have been
given an opportunity to rectify the same. In
the instant case, the same liberty was given
to the respondent by the Company Judge as
also by the Division Bench of the High
Court. We are, therefore, of the opinion that
the Division Bench was right in dismissing
the appeal filed by the appellant. 22. This
Court has in a catena of decisions held that
substantial compliance is enough. Rules
are undoubtedly statutory and the forms are
to be adopted wherever they are applicable.
The rules relating to the affidavit and the
verification cannot be ordinarily brushed
aside, but then what is required to be seen
is
whether
the
petition
substantially
complies with the requirements and,
secondly, even when there is some breach
or omission, whether it can be fatal to the
petition. In the instant case, both the
learned Company Judge and also the
Division Bench were of the opinion that
there is substantial compliance with Rule
21. In Khaitan Overseas & Finance Ltd. v.
Dhandhania Bros. (P) Ltd. a petition was
filed by the Chairman-cum-Director of the
Company. He annexed with the petition a
resolution of the Board of Directors
permitting him to execute
necessary
petitions,
documents,
applications,
affidavits and to lodge a suit to recover
10 All. Rohit Agarwal Vs. State of U.P.
449
dues from the debtor Company. This was
held to include the authority to file a
winding-up petition also. The affidavit
accompanying the petition was signed,
sworn and affirmed on oath in the
prescribed manner. The court said that the
affidavit conformed with the requirements of
law.

23. We are of the opinion that the
rules of procedure cannot be a tool to
circumvent the justice. In fact, the rules are
laid to help for speedy disposal of justice. The
learned Judges of the Division Bench have
appreciated that the technical plea raised by
the appellant regarding defective affidavit
was raised after seven years of filing the
petition. The learned counsel submitted that
the appellant is raising the defence of
technical plea to protect himself from the
consequence of his default and this plea
cannot be considered effective enough to
review the order of advertisement. Assuming
without admitting that the affidavit was not
verified as per the Company Rules, the
learned counsel has correctly submitted that
if this objection was taken earlier the
respondent would have cured the defect."

8. Concluding his arguments, he
submits
that
omission
of
educational
qualification in the affidavit is an inadvertent
error, which would not prejudice the other
side and that is not fatal too and, the same can
be cured by way of filing supplementary
affidavit and permitting the applicant to
correct the affidavit, would avoid the
multiplicity
of
proceedings.
Therefore,
submission is that the preliminary objection
raised by the learned A.G.A. may be rejected
and prayer for correction made in the
affidavit in support of the application may be
allowed.

9. Considering the submissions of the
learned counsel for the parties and after
perusal of material placed on record, it
transpires that the present application has
been
filed
challenging
the
criminal
proceedings of Criminal Case No.81893 of
2019 (State Vs. Sanjeev Agarwal) arising out
of Crime No.0784 of 2019, under Sections
409, 420, 467, 468, 471, 408 of the I.P.C.,
Police Station Vibhuti Khand, District
Lucknow. The preliminary objection is raised
by learned A.G.A.-I that the Rules 1952 does
not permit any correction in the affidavit
placed before this Court, after it is sworn in.

10. When this Court examines the
objection in the light of the provisions of
Rules 1952 and as per the settled
proposition of law, it emerges that the
Rules 17 and 18 of Chapater IV of the
Rules
1952
provides
the
provision
regarding oath or affirmation by the
deponent and correction in the affidavit. It
has been provided under Rule 18 thereof
that 'no interlineation, alteration or erasures
shall be made in an affidavit after it has
been sworn'. Bare reading of this provision
shows that no affidavit can be corrected by
the deponent after it has been sworn but
whether this can be cured is the issue to be
dealt with, in the light of the inherent
powers of this Court as well as settled
propositions of law.

11. Having at a glance on Section 7 of
Oaths Act 1969, it is crystal clear that 'no
omission to take any oath or make any
affirmation, no substitution of any one for
any other of them, and no irregularity
whatever in the administration of any oath
or affirmation or in the form, in which, it is
administered,
shall
invalidate
any
proceeding or render inadmissible any
evidence whatever, in or in respect of
which such omission, substitution or
irregularity took place, or shall affect the
obligation of a witness to state the truth'.
450 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Time and again, the Apex Court
has also taken up this issue and in case of
Malhotra Steel Syndicate (supra), it has
been held by the Apex Court that the
defects in the affidavit can be removed, if it
is curable. This Court is of the opinion that
Rules blatantly cannot be ignored but at the
same time, this cannot be allowed to be a tool
to circumvent the justice as the Rules are
framed to aid the speedy dispensation of justice.

13. So far as the present matter is
concerned, in the description of affidavit clause,
the qualification of the deponent has been left to
be transcribed, which, in opinion of this Court,
seems to be a curable defect as that has no
material or substantial impact on the issue or no
prejudice is likely to cause to the other side.
Meaning thereby that there are two categories
of the defect in the affidavit. One can be termed
as 'curable defect' and the second would be
'incurable defect'. The principle thus enunciated
that the defect which would not cause prejudice
to the other ends or also would not substantially
change the object for which the affidavit is
given, are the curable defects and there can be
no straitjacket formula so as to come to the
conclusion but it would depend on the fact of
the matter.

14. In view of the aforesaid submissions
and discussions, the preliminary objection
raised by the learned counsel for the State, is
hereby rejected.

15. Learned counsel for the applicant is
permitted to correct the affidavit clause as per
the prayer made in supplementary affidavit
dated 18.8.2023.

16. Heard Sri Pranjal Krishna, learned
counsel for the applicant, Sri Aniruddh Kumar
Singh, learned A.G.A.-I & Sri Sanjay Kumar
learned A.G.A. for the State.

17. Learned counsel for the applicant
submits that an FIR was lodged against the
applicant and other accused persons on
24.11.2019, under Sections 409, 420, 467, 468,
471 I.P.C., alleging therein that the applicant
being one of the Directors, in collusion with the
other Directors of 'Wealth Mantra Limited'
conducted the business of share trading, Since
1995 and, during the course of business, he
used to deposit the shares in Demat Account of
the Complainant, which in fact was operated by
the Wealth Mantra Limited and that has a stock
of Rs.27, 91, 089.60 and the said amount
was transferred from the Demat Account of
the complainant into the pool account and
the shares were sold out but the proceeds
were misappropriated and even after
several requests of the complainant for
return of his shares, neither the shares were
returned, nor the money in his account has
been paid and when the complainant met
with one of the co-accused, namely,
Sanjeev Agarwal, he made false promise to
return the amount but the same was not
done. The matter was investigated in a
cursory manner and the charge sheet was
filed on 17.11.2022 and the magistrate took
cognizance on 24.5.2023.

18. Contention of the learned counsel
for the applicant is that the applicant has no
role of any kind in misappropriation of
amount, if any, by Wealth Mantra Limited
and only being the father of the 'Director',
he has been implicated. He also added that
the applicant is neither director nor any
authorized signatory or employee of the
company and he was never involved in any
affairs or functioning of the company and
the applicant has his own business and he
had no interaction or contact with the
complainant but the Investigating Officer,
ignoring the fact that there is no 'mens rea'
or 'actus rea' for committing offence by the
applicant
and
without
collecting
the
10 All. Dildar Ahmad Vs. State of U.P. & Ors.
451
material evidence against the applicant,
submitted the charge sheet and this fact has
also been ignored by the learned trial court..

19. He further argued that the
complainant is using the criminal proceeding as
a tool, for some amount, which probably is in
dispute between Sanjeev Agarwal and the
complainant and the applicant is being made
scapegoat. He added that the applicant is of
considerable age and because of throwing him
to face the criminal proceeding, he is suffering
hard.

20. During the course of his arguments,
he has also pointed out that one of the accused,
namely, Sanjeev Agarwal has approached the
Apex Court by way of moving SLP (Cri)
No.9285 of 2021, wherein the criminal
proceeding pursuant to the FIR No. 784 of 2019
dated 24.11.2019, has been stayed on
6.12.2021. The order dated 6.12.2021 passed by
the Apex Court reads as under:-

"Applications for Exemption from
filing c/c of the impugned judgment, official
translation and affidavit are allowed.

Issue notice.

In the meantime, there shall be stay
of the proceedings in pursuance to FIR No.784
of 2019 dated 24.11.2019 registered at P.S.
Vibhuti Khand, District Lucknow, Uttar
Pradesh."

21. He submits that order of the Apex
Court is very clear that whole proceeding
arising out of F.I.R. No.784 of 2019 are stayed
but the trial court is still proceeding against the
applicant. Therefore, submission is that the
criminal proceeding against the applicant is
abuse of process of law and the same is liable to
be quashed.

22. Per contra, learned A.G.A. has
vehemently opposed the contention aforesaid
and submits that the applicant is named in the
F.I.R. and there is serious allegation against the
applicant for committing cheat and fraud, in
collusion with the other two accused persons
and after investigation, it was found that the
applicant was involved in committing the
offence and, therefore, after collecting the
substantial evidence against the applicant, the
charge sheet has been filed and, thus, the
learned trial court has rightly took cognizance
and has passed the order for summoning of the
applicant. Therefore, submission is that the
applicant is not entitled for any relief.

23. Prime facie, there seems to be
substance in the contention of the learned
counsel for the applicant, therefore, the matter
requires consideration.

24. Counter affidavit be filed by the State
within a period of three weeks.

25. A week thereafter is granted to the
applicant to file Rejoinder affidavit.

26. List thereafter.

27. Till the next date of listing,
criminal proceedings of Criminal Case
No.81893 of 2019 (State Vs. Sanjeev
Agarwal), arising out of Crime No.0784 of
2019, under Sections 409, 420, 467, 468,
471, 408 of the I.P.C., Police Station
Vibhuti Khand, District Lucknow, shall
remain stayed, so far as the applicant is
concerned.
---------
(2023) 10 ILRA 451
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.09.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 8149 of 2023