Nagendra Kumar Jain vs State of U.P.

M. Wahajuddin, J.—The applicant has been summoned u/s 409 IPC and Section 3/7 of the Essential Commodities Act in pursuance of a complaint lodged against him. As the complaint is very long one and it would be needless to deal with the entire allegations, I may refer to salient features. The applicant is a licenced cement dealer. The allegation is that from the cement factory the applicant lifted a larger quantity of cement and he has not accounted for 92 M.T. of such cements. As to what actual quantity the applicant lifted and how much was accounted for are both questions of fact. The averment is there, the prosecution will stand upon its own legs, papers of the applicant would also be available and in light of the cumulative evidence it is the trial court which can examine as to find out whether the allegations are false or correct. If this Court starts functioning as a court of inquiry and trial, and it starts trying cases itself on the strength of affidavits and counter affidavits etc. it would instead of serving the ends of justice rather defeat it and disturb the normal procedure regarding trial of cases laid down in the Code of Criminal Procedure. That is why the Supreme Court has repeatedly pronounced that the powers u/s 482 Code of Criminal Procedure are to be exercised in very rare cases and certain criteria''s have also been laid down. The leading cases on the point are the cases of R.P. Kapur Vs. The State of Punjab, , Madhu Limaye v. State of Maharashtra 1978 AWC 96 and the latest pronouncement Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, . What has been laid down in these rulings is that the Court has to examine whether accepting the allegations in the complaint, without adding or subtracting thereto and the materials before the Magistrate a prima facie case is disclosed or not. So that is the approach which has to be made.

I have gone through the recitals of the FIR. I find that the submission of the learned Counsel for the applicant that as any offence u/s 409 IPC would not be made out is not without force. His submissions are supported by the pronouncement in the case of The State of Gujarat Vs. Jaswantlal Nathalal, but the crux of the matter is whether any other offence on the recitals of the complaint is made out or not. To be more specific as the applicant has also been summoned u/s 3/7 of the Essential Commodities Act, the court has to consider whether the complaint discloses prima facie any offence under that section. As regards that aspect it would no doubt appear that a number of allegations including black marketing have been made but the stand is not only on black marketing of the cement. I may refer to last paragraph of the complaint in which it has been specifically averred that contravention of certain orders of the Cement Control Order have been made. In fact, he would have avoided to refer to the specific provisions but as the matter has been vehemently argued and much stress is being laid down I may in brief mention the gist of Order 11 and Order 12 of the U.P. Cement Control Order 1973. It requires the dealer to maintain the correct account books concerning the cements received and distributed and such books have also to be made open for inspection. It empowers the State Government under Order 11 to regulate the supply and distribution of cement. When that is the position, any contravention of these orders by not accounting for any quantity of cement received by the licenced dealer may prima facie constitute an offence though during trial it is always open to explain away all circumstances or to show that actually any contravention is not made out. That is a matter for consideration by the trial court itself. In the circumstances, I am unable to say that prima facie any offence u/s 3/7 of the Essential Commodities Act is not disclosed by reading of the complaint. When that is the position neither the complaint nor the criminal proceedings against the applicant can be quashed and this application is summarily rejected.