# Sri Rudra Prakash Tiwari & Anr v. State of U.P. & Anr

- **Citation:** (2020) 11 ILRA 58
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-09-21
- **Case number:** Application U/S 482 No. 12608 of 2020
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-rudra-prakash-tiwari-anr-v-state-of-u-p-anr-45427
- **Pages:** 4

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Sections 420, 504, 506 -
Negotiable Instrument Act, 1881-Sections
138-quashing
of
summoning
order
refused- complainant and witnesses were
examined-they were in corroboration with
complaint and on the basis of evidence
collected summoning order was passed by
the
magistrate-while
exercising
jurisdiction u/s 482 CrPC the High Court
would not 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 court.(Para 5 to 8)

B. To prevent abuse of process of law,
High Court in exercise of its inherent
powers 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.(Para 8)

In the instant case, complainant and the
applicants agreed on the basis of shared
commission for getting land and installation of
solar plant on the land. After execution of sale
deed of 60 Acres of land, a fraud was
committed with the complainant with regard the
payment of commission. On demand, promised
was made to be paid through cheque but the
cheque was dishonoured for which separate
proceeding u/s 138 N.I. Act was pending but for
offences of fraud, abuse and extension of
threat, complaint was filed.(Para 5)

The application is dismissed. (E-6)

List of Cases Cited:-

## Text

58 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

10. Accordingly, there remains
nothing
for
any
indulgence
in
this
proceeding. The prayer for quashing
summoning order as well as proceeding of
the aforesaid complaint case is refused and
the application u/s 482 Cr.P.C. is hereby
dismissed.
----------

(2020)11ILR A58
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.09.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 12608 of 2020

Sri Rudra Prakash Tiwari & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Shivakant

Counsel for the Opposite Parties:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Sections 420, 504, 506 -
Negotiable Instrument Act, 1881-Sections
138-quashing
of
summoning
order
refused- complainant and witnesses were
examined-they were in corroboration with
complaint and on the basis of evidence
collected summoning order was passed by
the
magistrate-while
exercising
jurisdiction u/s 482 CrPC the High Court
would not 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 court.(Para 5 to 8)

B. To prevent abuse of process of law,
High Court in exercise of its inherent
powers 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.(Para 8)

In the instant case, complainant and the
applicants agreed on the basis of shared
commission for getting land and installation of
solar plant on the land. After execution of sale
deed of 60 Acres of land, a fraud was
committed with the complainant with regard the
payment of commission. On demand, promised
was made to be paid through cheque but the
cheque was dishonoured for which separate
proceeding u/s 138 N.I. Act was pending but for
offences of fraud, abuse and extension of
threat, complaint was filed.(Para 5)

The application is dismissed. (E-6)

List of Cases Cited:-

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

2. Hamida Vs Rashid, (2008) 1 SCC 474

3. Monica Kumar Vs St. of U.P.,( 2008) 8 SCC
781
11 All. Sri Rudra Prakash Tiwari & Anr. Vs. State of U.P. & Anr.
59
4. Popular Muthiah Vs St. Reprtd. by Inspector
of Police , (2006) 7 SCC 296

5. Dhanlakshmi Vs R. Prasana Kumar,(1990) Cr
L J 320 (DB): (1990) AIR SC 494

6. St. of Bih. Vs Murad Ali Khan, (1989) Cr L J
1005: AIR (1989) SC 1

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

1. Heard learned counsel for the
applicants and learned A.G.A. representing
the State. Perused the records.

2. This application under Section 482
Cr.P.C. has been filed by applicants Rudra
Prakash Tiwari @ Raju Tiwari and Ashish
Tiwari against State of U.P. and Sushil
Kumar @ S.K. Singh with prayer to quash
summoning order dated 19.01.2019 as well
as entire proceedings of Complaint Case
No. 1123 of 2018, Sushil Kumar @ S.K.
Singh Vs. Rudra Prakash Tiwari @ Raju
Tiwari and others, under Sections 420, 504,
506 I.P.C., P.S. Barra, district Kanpur
Nagar, pending in court of Special C.J.M.,
Kanpur Nagar.

3. Learned counsel for the applicants
argued that for the same sequence of
occurrence, wherein a cheque was given
and the same was dishonoured, a complaint
u/s 138 of N.I. Act had been filed and
therein applicant no. 1 is on bail.
Subsequently,
for
the
same
set
of
circumstances this complaint has been
filed. Even though the offence punishable
u/s 420 I.P.C. is not made out, but for
which there is summoning. In Complaint
Case u/s 138 of N.I. Act only son was
implicated, whereas in subsequent case
father was also implicated. There was some
dispute in regard to commission for which
cheque was given and the cheque was
dishonoured, hence the subsequent case i.e.
the present case, is an abuse of process of
law. Hence this application with above
prayer.

4. Learned A.G.A. has vehemently
opposed the above argument.

5. From the very perusal of complaint,
it is apparent that Complaint No. 1123 of
2018 was filed by Sushil Kumar @ S.K.
Singh against Rudra Prakash Tiwari @
Raju Tiwari and Ashish Tiwari for the
offences punishable u/s 406, 420, 504, 506
I.P.C. with contention that the complainant
used to search unusable land of farmers for
sale on some commission basis for
installation of Solar Power Plant for Solar
Power Company in the year 2016 and
2017. During this exercise the opposite
parties (present applicants) met to the
complainant and assured him for getting
some land in village Raniganj, Tehsil
Hamirpur Sadar, for sale for installation of
Solar Power Plant. This was agreed to be
on the basis of shared commission. This
was agreed, wherein Rs. 30,000/- cash was
paid to opposite parties (applicants) for
getting those land and revenue documents
verified from revenue department. But after
execution of sale deed of 60 Acres of land,
as above, in favour of Ajyor Power Jupiter
Pvt. Ltd., New Delhi, a fraud was
committed with complainant with regard to
payment of commission. The same was got
transferred through RTGS in favour of
Rudra Prakash Tiwari and Ashish Tiwari
and when demand was made, it was
promised to be paid through cheque, it was
got issued and subsequently payment was
stopped. Hence when asked for, on
25.4.2018
a
threat
with
abuse
was
extended. Hence this complaint was filed
and for dishonour of cheque a separate
proceeding u/s 138 of N.I. Act is being said
60 INDIAN LAW REPORTS ALLAHABAD SERIES
to be pending. For offence of fraud and
abuse with extension of threat punishable
u/s 420, 504, 506 I.P.C., a separate
complaint was filed, as in the trial u/s 138
of N.I. Act, which is for specific
proceeding under special procedure given
in above Act, may not be properly
redressed. Hence for offences of fraud,
abuse and extension of threat, this criminal
case was filed, wherein the complainant
was examined u/s 200 Cr.P.C. and his
witnesses Chandrapal Yadav and Manoj
Gupta were examined u/s 202 Cr.P.C. They
are in corroboration with complaint and on
the basis of these evidence collected during
enquiry by Magistrate, the impugned
summoning order was passed against
applicants Rudra Prakash Tiwari @ Raju
Tiwari and Ashish Tiwari.

6. This court in exercise of its
inherent jurisdiction u/s 482 Cr.P.C. is not
expected to meticulously analyse the facts
and evidence as it is within the domain of
trial court.

7. Saving of inherent power of High
Court, as given under Section 482 Cr.P.C,
provides that 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.
Meaning thereby this inherent power is
with High Court (I) to make such order as
may be necessary to give effect to any other
order under this Code (II) to prevent abuse
of the process of any Court (III) or
otherwise to secure the ends of justice. But
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".

8. Regarding prevention of abuse of
process
of
Court,
Apex
Court
in
11 All. Kamal Chand Patel Vs. State of U.P. & Anr.
61
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".

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

10. Accordingly, there remains
nothing
for
any
indulgence
in
this
proceeding. The prayer for quashing
summoning order as well as proceeding of
the aforesaid complaint case is refused and
the application u/s 482 Cr.P.C. is hereby
dismissed.
----------

(2020)11ILR A61
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 No. 12997 of 2020

Kamal Chand Patel ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ravindra Kumar, Sri Arun Kumar Goyal

Counsel for the Opposite Parties:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 482 - Negotiable
Instrument
Act,
1881-Sections
138quashing of entire proceeding-admitted
fact of issuance of cheque is there,
dishonour of
it
by
bank
concerned,
dishonour memo and receipt of issuance
of
notice
to
accused/applicant
by
complainant by registered post is there
and non-payment of amount is also
undisputed- Hence, prima facie case for
issuance of process for offence punishable
u/s 138 N.I. Act, but those facts were to
be decided by trial court after getting
evidence-quashing of complaint case is
refused.(Para 2 to 11)

B. In exercising jurisdiction u/s 482 CrPC
High Court would not embark upon an
enquiry whether the allegations in the
complaint are likely to be established by
evidence or not.it 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.(Para 9,10)

The application is dismissed. (E-6)

List of Cases Cited:-

1. Fiona Shri khande Vs St. of Mah. & anr.,
(2014) AIR SC 957,

2. St. of A.P. Vs Gaurishetty Mahesh, JT (2010)
6 SC 588: (2010) 6 SCALE 767: (2010) Cr L J
3844

3. Hamida Vs Rashid, (2008) 1 SCC 474

4. Monica Kumar Vs St. of U.P. ,( 2008) 8 SCC
781

5. Popular Muthiah Vs St. Reprtd. by Inspector
of Police , (2006) 7 SCC 296