HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. – 13
Case :- U/S 482/378/407 No. – 3852 of 2008
Applicant :- Jaideep Pati Tripathi
Opposite Party :- State of U.P.
Counsel for Applicant :- Anil K.Tripathi
Counsel for Opposite Party :- Govt.Advcoate,J.P.Pandey,Nishant Shukla,P.C.Srivastava
Hon’ble Dinesh Kumar Singh,J.
The present petition under Section 482 Cr.P.C. has been filed impugning the summoning order dated 15.5.2008 passed by the Chief Judicial Magistrate, Lucknow in Compliant Case No.1911 of 2003, under Sections 406, Section420, Section467, Section468, Section471 IPC, Police Station Hazratganj, District Lucknow.
The petitioner is broker in the share market. The petitioner and other partners carrying the business of dealing in shares in the name of J.D. Investment Company. Respondent no.2 invested some amount with the petitioner’s firm for purchasing the shares of different companies. It appears that the shares, which were bought from the money of respondent no.2, did not yield the desired return and because of crashing of the share market, respondent no.2 suffered losses, and he did not realise the investment made by him. Respondent no.2, therefore, lodged an FIR against the petitioner and two other partners under Sections 406, Section420, Section467, Section468 and Section471 IPC, which was registered at Case Crime No.506 of 2000 at Police Station Hazratganj, District Lucknow.
Police after investigation of the offence, filed final report under Section 173(2) Cr.P.C. and absolved the petitioner and others inasmuch as no evidence could be collected for committing any offence by them as alleged in the FIR.
Respondent no.2 filed protest petition against the submission of the final report. Learned Magistrate rejected the final report and treated the protest petition as complaint and after recording statement of respondent no.2 and one witness Ms.Shashi Srivastava, who is wife of respondent no.2, summoned the petitioner and two others under Sections 406, Section420, Section467, Section468 and Section471 IPC vide impugned summoning order dated 15.5.2008.
Heard Sri Anil K.Tripathi, learned counsel for the petitioner, Sri Nishant Shukla, learned counsel for respondent no.2 and Sri S.K. Tiwari, learned AGA.
It is not in dispute that shares were purchased with the money invested by respondent no.2 in his name. The share market is such that a person may suffer losses or the investment made by him may yield very good return. There is always uncertainty and, there is risk involved in the investment made in share market. Once the shares were purchased in the name of respondent no.2, and if the share market got crashed and he suffered losses, it cannot be said that he was cheated by the petitioner and others in any manner, for which the offence under Section 420 IPC is said to have been committed by them. Similarly, there was no entrustment of the money with the petitioner and other partners, which they misappropriated to attract the offence under Section 406 IPC. It is also not in dispute that there is no manipulation or forgery committed by the petitioner and others, where they had manufactured any valuable security etc. for which offences under Sections 467, Section468 and Section471 IPC can be said to have been committed by the petitioner and others.
The issue involved in the present case, at best can be said to have civil consequences, but certainly there is no element of criminal act involved in the present case. It appears that the summoning order passed by the learned Magistrate is without applying his judicial mind to the facts and circumstances of the case. The proceedings initiated on the protest petition of respondent no.2, on which the petitioner and others have been summoned vide impugned order dated 15.5.2008, are an abuse of process of the Court inasmuch as no element of any criminal offence which has been committed by the petitioner and others and, therefore, it would be appropriate to quash the impugned proceedings in exercise of powers under Section 482 Cr.P.C..
Thus, the petition is allowed and, the proceedings of Compliant Case No.1911 of 2003, under Sections 406, Section420, Section467, Section468, Section471 IPC, Police Station Hazratganj, District Lucknow and the summoning order dated 15.5.2008 passed by the Chief Judicial Magistrate, Lucknow, are hereby quashed.
Order Date :- 11.12.2019
Rao/-
