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HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 83
Case :- APPLICATION U/S 482 No. – 10704 of 2021
Applicant :- Vijay Gautam
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Shashi Prakash Pandey
Counsel for Opposite Party :- G.A.
Hon’ble Rajeev Misra,J.
Heard Mr. Shashi Prakash Pandey, learned counsel for applicant and learned A.G.A. for State.
This application under Section 482 Cr.P.C. has been filed challenging charge sheet dated 23.09.2020 submitted in Case Crime No. 357 of 2020, under Sections 406, 420, 323, 504, 506 IPC, Police Station Anoopshahar, District Bulandshahr, as well as entire proceedings of consequential Case No. 330 of 2020 (State Vs. Vijay Gautam), under Sections 406, 420, 323, 504, 506 IPC, Police Station Anoopshahar, District Bulandshahr, pending in the Court of Additional Chief Judicial Magistrate, Anoopshahar, District Bulandshahr.
Learned counsel for applicant contends that with regard to dishonour of cheque, complainant opposite party No. 2 has filed complaint in terms of Section 138 N.I. Act. Copy of the same is on record as Annexure 7 to the affidavit. On the aforesaid premise, it is urged that no F.I.R. could have been lodged. Learned counsel for applicant has then referred to various documents appended along with the application and pleadings raised to demonstrate that offence under Section 406, 420 IPC etc., is made out. False implication of applicant is also alleged. He, therefore, contends that present criminal proceedings arising out of above mentioned case crime number are not only malicious, but also an abuse of process of Court. Consequently, same are liable to be quashed by this Court.
Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that there is no bar for lodging an F.I.R. for an offence under Section 138 N.I. Act. along with an offence under Section 406 IPC. He further contends that law has been settled by Supreme Court in Kolla Veera Raghav Rao Vs. Gorantla Venkateswara Rao, (2011) 2 SCC 703 that once accused has been convicted under Section 138 N.I. Act, then he cannot be convicted under Section 406 IPC on account of same offence. However, in the present case, complaint Case No. 530 of 2020 (Smt. Monika Vs. Vijay Gautam), under Section 138 N.I. Act filed by complainant opposite party 2 has not been decided till date. Therefore, no good ground exists for quashing of the proceedings of above mentioned case.
When confronted with above, learned counsel for applicant could not overcome the same.
Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of 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 applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence, as such an exercise can be undertaken only by trial court. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.
In view of above, application fails and is liable to be dismissed.
It is accordingly dismissed.
Order Date :- 15.7.2021
HSM
