HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 78
Case :- APPLICATION U/S 482 No. – 42753 of 2017
Applicant :- Santosh Kumar Rana And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Suresh Chandra Pandey
Counsel for Opposite Party :- G.A.,Rajeev Kumar Ojha
Hon’ble Om Prakash-VII,J.
List revised. Learned counsel for the parties are present.
Learned counsel for the applicants states that he does not propose to file rejoinder affidavit in the matter and application be decided at this stage itself.
The present application under Section 482 Cr.P.C. has been filed by the applicants with the prayer to quash the entire proceedings of complaint case no. 483 of 2016 under Sections 406, 504, 506 IPC, Police Station Sigara, District – Varanasi as well as the summoning order dated 17.11.2017 pending in the court of Additional Chief Judicial Magistrate, Court No.9, Varanasi. Further prayer has been made to stay the further proceedings of the aforesaid case.
Heard Shri S.C. Pandey, learned counsel for the applicants, Shri R.K. Ojha, learned counsel for the opposite party no.2 and the learned AGA appearing for the State.
It is submitted by the learned counsel for the applicants that initially in the matter one application under Section 156(3) CrPC was filed which was treated as complaint and thereafter statements under Sections 200 and 202 CrPC were recorded and consequently applicants were summoned to face trial for the offence under Sections 406, 504 and 506 IPC. Referring to facts mentioned in the complaint / application u/s 156(3) CrPC as well as the statements recorded in support thereof, it is also submitted by learned counsel for the applicants that no prima facie case is made out against the applicants. Applicants have fulfilled the responsibility entrusted to them and completed the constructions work. Opposite party no.2 himself was creating hindrance and damaging the building in question. A civil suit regarding same subject matter was filed but the parties entered into compromise and fresh agreement was entered into between the parties and in lieu of that agreement applicants have completed construction work. Referring to contents of complaint as well as ingredients of offence under Section 406 IPC, it is also submitted that none of ingredients of the aforesaid offence are available in the matter. Concerned Magistrate while passing the impugned summoning order did not take into account the facts and evidence of the case in right perspective, which resulted into an illegal summoning order. The impugned order suffers from illegality and infirmity warranting interference by this Court.
On the other hand, learned counsel for the opposite party no.2 as well as the learned AGA has submitted that land in question is belonging to opposite party no.2 and his brothers. An agreement was entered into between the applicants and opposite party no.2 to construct fifty residential flats on the said land out of which thirty flats were for applicants and remaining twenty flats were meant for complainant / opposite party no.2. Since despite receiving of huge amount from the purchaser / buyers, construction of aforesaid flats were not completed in time, an application under Section 156(3) CrPC was moved and a civil suit was also filed. Despite fresh agreement entered into between the parties, applicants again did not complete the construction work and instead extended threat to opposite party no.2. All the offences levelled against the applicants in the summoning order are clearly attracted. Applicants have been summoned on the basis of statements recorded under Sections 200 Cr.P.C. and 202 Cr.P.C.. The impugned order does not suffer from any illegality or infirmity warranting interference by this Court.
I have considered rival submissions made by learned counsel for the parties and have gone through the entire record carefully.
Before dealing with the submissions raised by learned counsel for the parties, I find if necessary to quote provisions of Section 405 IPC, which are as under:
“405. Criminal breach of trust.?Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.
[Explanation [1].?A person, being an employer 3[of an establishment whether exempted under section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]
[Explanation 2.? A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and administered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]”
Now, the court feels it appropriate to refer settled legal position regarding power of the Magistrate/ Court at the stage of taking cognizance and summoning the accused.
It is settled legal position that at the stage of taking cognizance and summoning the accused, the Magistrate/ Court dealing with the matter is required to apply judicial mind only with a view to take cognizance of the offence to find-out as to whether prima-facie case has been made out to summon the accused person. The Court dealing with the matter is not required to analyze the material at this stage to find-out as to whether the matter will lead to conviction or not. Sufficiency of materials for the purpose of conviction is not required. It is also settled that even when there are materials raising strong suspicion against the accused, the Court will be justified in taking cognizance and summoning the accused. The Court / Magistrate is not required to analyze the evidence as is done after recording the evidence in trial.
In this matter, as is evident from the record, initially both parties entered into an agreement for construction of fifty residential flats. Land was belonging to opposite party no.2 and his brothers. Out of total flats, thirty flats were meant for applicants and remaining twenty flats were for opposite party no.2/complainant. A civil suit was also filed and both parties entered into compromise and suit was decided in terms of said compromise, as is clear from the record itself. Fresh agreement was also entered into between the parties. Keeping in view the above facts and applying the settled legal principles, as mentioned above, to the facts and evidence of the present case and comparing it with the observations recorded by the concerned Magistrate while passing the impugned order and also the ingredients of offence under Section 406 IPC, in my view, it cannot be said that no prima-facie case is made out against the applicants for the offence under Section 406 IPC. So far as other offences are concerned, same are also supported with evidence under Sections 200 and 202 CrPC.. The Magistrate has not committed any error in summoning the present applicants. There is no illegality, infirmity, impropriety or perversity in the impugned order dated 17.11.2017 passed by the Additional Chief Judicial Magistrate, Court No.9, Varanasi. Hence, prayer made in the application is refused.
In the last, learned counsel has urged that direction for expeditious disposal of bail application of the applicants be given.
Hence, it is observed that in case the applicants surrender before the court below and apply for bail within thirty days from today, the same shall be considered and decided in view of the settled law. For a period of thirty days from today, no coercive action shall be taken against the applicants.
It is made clear that no further time shall be allowed to the applicants to surrender before the court concerned.
With the above observations, the application stands disposed of.
Order Date :- 5.2.2020
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