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Manoj Kumar @ Manoj Kumar Gupta And … vs State Of U.P. And Another on 23 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 47

Case :- APPLICATION U/S 482 No. – 36873 of 2019

Applicant :- Manoj Kumar @ Manoj Kumar Gupta And 6 Others

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

Counsel for Applicant :- Vipin Kumar

Counsel for Opposite Party :- G.A.

Hon’ble Harsh Kumar,J.

Vakalatnama filed by Sri Sudhanshu Kumar, Advocate on behalf of opposite party no.2, is taken on record.

Heard Sri Vipin Kumar, learned counsel for applicants, Sri Sudhanshu Kumar, learned counsel for opposite party no.2, learned A.G.A. for the State and perused the record.

This application under Section 482 Cr.P.C. has been filed for quashing the entire proceedings of Complaint Case No.565 of 2019 (Smt. Pratibha Gupta Vs. Manoj Kumar and others), under Section 406 I.P.C., P.S. Ganjdundwara, District Kasganj pending in the court of Chief Judicial Magistrate, Kasganj.

Learned counsel for applicants contends that opposite party no.2 has falsely implicated applicant no.1, her husband as well as entire members of family including her married Nanad; that apart from it one more Criminal Case No.631 of 2019 is pending against applicants on the F.I.R. lodged by brother of opposite party no.2 at Case Crime No.18 of 2019, under Sections 498A, Section323, Section504, Section506 I.P.C. and Section 3/4 D.P. Act in which proceedings have been stayed vide order dated 25.6.2019; that no case is made out against applicants and jewellery shop from which ornaments are alleged to have been misappropriated including alleged Stridhan of opposite party no.2, was got opened by applicant no.1 in the name of opposite party no.2.

Per contra, learned counsel for opposite party no.2 and learned A.G.A. supported the impugned order and contended that Stridhan of opposite party no.2 have been misappropriated by applicants and cognizable offence under Section 406 I.P.C. is made out against all of them.

From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants no.1 to 5. All the submissions made at the bar relate to the disputed questions of fact, which require evidence and cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283, and the applicant has failed to prove any prima facie case.

In view of discussions made above, I have come to the conclusion that learned counsel for the applicants has failed to show that there is any abuse of process of court or likelihood of miscarriage of justice for prevention of which the exercise of inherent powers by this Court is required in favour of applicants no.1 to 5. The application in respect of applicants no.1 to 5 is devoid of merits and is liable to be dismissed.

The prayer for quashing of proceedings as against applicants no.1 to 5 has no force and is rejected accordingly.

However, if the applicants no.1 to 5 appear before the court below and moves application for bail, the same shall be disposed of expeditiously in accordance with law.

Upon hearing the parties counsel and perusal of record, I find that appellant nos.6 7 are married Nanad of opposite party no.2 and prima-facie no case appears to have been made out against them under Section 406 I.P.C. and their case requires consideration.

Issue notices to opposite party no.2 for filing counter affidavit, if any, in six weeks, rejoinder affidavit, if any, in two weeks thereafter and list thereafter on 13th January, 2020 for hearing before appropriate Bench.

Till next date of listing, further proceedings of Complaint Case No.565 of 2019 (Smt. Pratibha Gupta Vs. Manoj Kumar and others), under Section 406 I.P.C., P.S. Ganjdundwara, District Kasganj pending in the court of Chief Judicial Magistrate, Kasganj shall remain stayed only in respect of applicants no.6 7 Anita and Pinki.

Order Date :- 23.10.2019

Kpy

 

 

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