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Subhash Chand Jain And Others vs State Of U.P. And Others on 12 December, 2019


?Court No. – 34

Case :- APPLICATION U/S 482 No. – 17253 of 2005

Applicant :- Subhash Chand Jain And Others

Opposite Party :- State of U.P. and Others

Counsel for Applicant :- Chetan Chatterjee

Counsel for Opposite Party :- Govt. Advocate

Hon’ble Sudhir Agarwal,J.

1. Heard Sri Chetan Chatterjee, learned counsel for applicants and learned A.G.A. for State of U.P.

2. Applicants have invoked jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as “SectionCr.P.C.”) with a prayer to quash charge sheet dated 16.01.2005 as well as further proceedings in Criminal Case No.624 of 2005 pending in the Court of Chief Judicial Magistrate, Saharanpur.

3. It is contended that charge sheet is barred by limitation, inasmuch as, amount was borrowed by applicant on 03.12.1999 but, FIR was lodged on 19.11.2004, therefore, it is barred by limitation.

4. I find that charge sheet has been submitted under Sections 406, Section504, Section352, Section506 IPC. Allegations with regard to non payment of loan amount in and only with respect to Section 406 IPC and no other provisions. Further for the purpose of limitation question is what should be the date of commencement. FIR says that amount was given by cheque on 03.12.1999 and applicant promised to return the same within a period of one year along with interest, therefore, on his own applicant was supposed to return money by 03.12.2000. FIR further says that informant demanded money but applicant deferred payment on one or other ground but not denied to make payment. On 17.11.2004 when he went to residence of applicant, applicant and others attacked him and abused him also. Therefore, as per FIR limitation commenced on 17.11.2004, when applicant denied refund of said amount. Hence, ex facie it cannot be said that charge under Section 406 IPC is barred by limitation.

5. It is further said that applicants have been falsely implicated. At the stage of charge sheet, Court concerned has to examine only investigation and documents collected by Police, who submitted charge sheet and defence will be examined during trial when defence is adduced by both the parties.

6. Similarly, while seeking a prayer for quashing of charge sheet in application under Section 482 Cr.P.C., this Court also cannot examine any defence of accused, which has yet to be placed before Court below. Stage of placing defence of accused does not arise at the stage of charge sheet and, therefore, this Court also will not examine such defence at this stage.

7. Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under :

“15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, Section379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.

16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.

17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short “SectionCr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.”

(emphasis added)

8. No material irregularity in the procedure followed by Court below has been pointed out. It is not a case of grave injustice justifying interference in this application at this stage.

9. In view thereof, I do not find any illegality or infirmity in impugned charge sheet. This application lacks merit and is accordingly dismissed.

10. Interim order, if any, stands vacated.

Order Date :- 12.12.2019

Manish Himwan



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