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Mahesh Tejwani And Others vs State Of U.P. And Another on 11 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 65

Case :- APPLICATION U/S 482 No. – 8245 of 2013

Applicant :- Mahesh Tejwani And Others

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Virendra Sharma,Dr. Akhilesh Kumar

Counsel for Opposite Party :- Govt. Advocate,M.C. Tiwari

Hon’ble Dinesh Kumar Singh-I,J.

Learned counsel for the opposite party no. 2, Sri J.S. Pandey, has filed supplementary affidavit today, the same is taken on record

Heard Sri Virendra Sharma, learned counsel for the applicants, Sri J.S. Pandey, learned counsel for the opposite party no. 2 and Sri A.D. Mishra, learned A.G.A. for the State.

The present application u/s 482 SectionCr.P.C. has been filed with a prayer to quash the entire proceedings of Case No. 1290 of 2011, under Section 406 IPC, P.S. New Agra, District Agra.

It has been argued by the learned counsel for the applicants that accused-applicant no. 2 Ghanshyam Tejwani, who is the father of the husband of opposite party no. 2, has expired, hence the present application u/s 482 SectionCr.P.C. stands abated on behalf of the accused-applicant no. 2.

As regards the other accused-applicant no. 3, Lila Tejwani, who is mother-in-law of the opposite party no. 2, it is argued that there prima facie no case made out on the basis of evidence on record to constitute offence under Section 406 IPC as there is no entrustment made to her, therefore, complaint against her needs to be quashed. He has also drawn attention to two affidavits, one filed by Mahesh Tejwani S/o Ghan Shyam Tejwani, which is a joint affidavit of opposite party no. 2 and accused-applicant no. 1, in which, it has been mentioned that opposite party no. 2 has received all the articles, which were given at the time of marriage. Attention is also drawn to the other affidavit, which is sworn before Sindhi Panchayat, Kamla Nagar, Agra, containing the same facts but he has failed to convince the court as to under what provisions, these affidavits can be taken into consideration at this stage. It is further argued that applicant no. 3 is an old lady and she has been implicated falsely only with a view to harassing her.

On the other hand, learned counsel for the opposite party no. 2 has opposed the prayer of quashing and has relied upon the judgment in the case of Md. Allauddin Khan Vs. State of Bihar, Crl. Appeal No. 675 of 2019 (arising out of S.L.P. (Crl.) No. 1151 of 2018), in which it has been laid down that the High Court has no jurisdiction to appreciate the evidence in proceedings under Section 482 Cr.P.C.. Whether there are contradictions or inconsistencies in statements of witnesses is essentially issue relating to appreciation of evidence, the same cannot be gone into by Judicial Magistrate during trial when entire evidence is adduced by the parties. Relying upon the said ruling, he has drawn attention to the averments made in complaint in paragraph 4, in which it has been clearly stated that the jewellery (details of which have also been given) and cash amount of Rs. 20,000/- are stated to have been given by the opposite party no. 2 to the accused-applicants when she came to her matrimonial house after marriage and these articles were not being returned as per the complaint.

I have gone through the record.

After recording statements of complainant and two other witnesses, the trial court has come to the conclusion that prima facie case is made out against the accused-applicants also along with two others. The said statements cannot be scrutinized in proceedings u/s 482 SectionCr.P.C. by this court as has been held by the Hon’ble Supreme Court, which has been relied upon by the learned counsel for the opposite party no. 2. In view of above, I am of the opinion that quashing of proceedings in this case against the accused-applicant no. 3 deserves to be refused and is, accordingly, refused.

From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 SectionCr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon’ble Supreme Court in cases of SectionR. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.

The prayer for quashing the proceedings is refused.

However, looking to the fact that accused-applicant no. 3 is an old lady and accused-applicant no. 1, is husband of opposite party no. 2, it is directed that if they appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail may be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon’ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. For a period of 30 days from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicant no. 1 3. However, in case, the applicant no. 1 7 3 do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

With the aforesaid directions, this application is finally disposed of.

Order Date :- 11.7.2019

A.P. Pandey

 

 

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