HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 41

Case :- APPLICATION U/S 482 No. – 36581 of 2019

Applicant :- Mohd. Waseem

Opposite Party :- State Of Up And Another

Counsel for Applicant :- Rajesh Kumar Roy Sharma

Counsel for Opposite Party :- G.A.

Hon’ble Bachchoo Lal,J.

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

The present application under Sectionsection 482 Cr.P.C. has been filed for quashing the entire proceeding of Complaint Case No. 4912 of 2016 (Om Prakash Sharma Vs. Mohd. Waseem) as well as to set aside the impugned order dated 15.5.2019 passed by Sessions Judge, Aligarh in Criminal Revision No. 78 of 2019 (Mohd. Waseem Vs. Om Prakash Sharma) and summoning order dated 21.10.2016 issued by C.J.M., Aligarh in Complaint Case No. 4912 of 2016 (Om Prakash Sharma Vs. Mohd. Waseem) under Sectionsection 406 IPC, P.S. Banna Devi, District Aligarh.

It is contended by the learned counsel for the applicant that offence under Sectionsection 406 IPC is not made out against the applicant. If the cheque issued by applicant dishonoured the O.P. No. 2 may file complaint under SectionNegotiable Instrument Act. It has further been contended that the applicant had not taken any money. He has falsely been implicated in the present case. The O.P. No. 2 has not disclosed the mode of transfer of money either by cash or other way. The witnesses are real son of O.P. No. 2. No offence is made out against the applicant. The present prosecution has been instituted only for the purpose of harassment.

On the other hand learned A.G.A. argued that in complaint it has been mentioned that applicant had taken Rs. 3 lac from O.P. No. 2 and at that time the family members of the O.P. No. 2 were also present. The applicant did not return the money of O.P. No. 2 and applicant also issued a cheque which was dishonoured by the bank concerned mentioning that account has already been closed which shows that at the time of issuing the alleged cheque the account of applicant was not in existence. The learned Magistrate after considering the entire evidence available on record and finding a prima facie case has summoned the applicant to face trial under Sectionsection 406 IPC. The learned lower revisional court has also not found any illegality or irregularity in the impugned summoning order. Consequently, dismissed the revision filed by the applicant. There is no illegality or irregularity in the impugned summoning order as well as order of lower revisional court.

A perusal of the record shows that O.P. No. 2 filed a complaint against the applicant stating therein that the applicant had taken Rs. 3 lac from O.P. No. 2 on 15.5.2015. The applicant did not return the money to O.P. No. 2 and he also issued a cheque which was dishonoured with the report that account is closed. The O.P. No. 2 in his complaint has disclosed the entire facts of the incident. The O.P. No. 2 in his statement recorded under Sectionsection 200 Cr.P.C. has supported the complaint version. The learned Magistrate after considering the entire evidence available on record and finding a prima facie case has summoned the applicant to face trial under Sectionsection 406 IPC. The summoning order is based on statements of complainant and witnesses recorded under Sectionsection 200 and Section202 Cr.P.C. The applicant has preferred a criminal revision no. 78 of 2019 against the impugned summoning order which was dismissed by the lower revisional court vide its judgment and order dated 15.5.2019. I do no find any illegality or irregularity in the impugned summoning order as well as the judgment and order of lower revisional court. The learned Magistrate dealing with the complaint at this stage has to see only prima facie case and it can not be said that no prima facie case is made out against the applicant.

Considering the facts and circumstances of the case, I do not find any ground to quash the entire proceeding of the aforementioned case as well as summoning order dated 21.10.2016 and the order dated 15.5.2019 passed by the lower revisional court, therefore, the prayer for quashing the same is hereby refused.

However, it is directed that if the applicant appears and surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall 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. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.

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

Order Date :- 21.10.2019

Masarrat