Navneet Kumar and Others vs State of U.P. and Another

Rajesh Dayal Khare, J.—Heard learned Counsel for the applicants and learned A.G.A. for the State-respondent.

This Court vide order dated 31.3.1998 had issued notice and in the mean time further proceedings of case No. 1561 of 1997, u/s 406 IPC, pending before the Additional Chief Judicial Magistrate-III, Muzaffrar Nagar, was stayed. In spite of the service of notice upon the opposite party No. 2, no counter affidavit has been filed till date.

The present 482 Cr.P.C. petition has been filed for quashing the proceedings of complaint case No. 1561 of 1997, u/s 406 IPC, pending before the Additional Chief Judicial Magistrate-III, Muzaffrar Nagar.

It is contended by the learned Counsel for the applicants that for the same property, State Bank of India had filed original suit before the Civil Judge, Muzaffar Nagar, being Suit No. 138 of 1993 against Saraswati Steel and Alloys Ltd. Co., which is still pending. It is thus contended that the civil matter has been dragged into criminal prosecution of the applicants at the behest of opposite party No. 2, which is bad in law.

The contention of the counsel for the applicants is that no offence against the applicants is disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He pointed out certain documents and statements in support of his contention.

From the perusal of the 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 the applicants. All the submission made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. The State of Punjab, 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 Anr. (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicants have got right of discharge under Sections 239, 227/228 or 245(2) Cr.P.C. as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court.

The prayer for quashing of the complaint case, is hereby refused.

However, it is directed that the applicants shall appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and Anr. v. State of U.P. reported in 2004 (57) ALR 290 as well as Judgment passed by Hon''ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh v. 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 applicants. However in case the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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

Interim order dated 31.8.1998 is hereby vacated.