Allahabad High Court
Shyam Gupta Alias Shyam Ji Gupta vs State Of U.P. Thru. Prin. Secy. Home … on 13 September, 2024
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:63524 Court No. - 13 Case :- APPLICATION U/S 482 No. - 8252 of 2024 Applicant :- Shyam Gupta Alias Shyam Ji Gupta Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Govt. Of U.P. Civil Secy. Lko.And Another Counsel for Applicant :- Shishir Pradhan Counsel for Opposite Party :- G.A. Hon'ble Saurabh Lavania,J.
Heard.
Present application has been filed by the applicant to quash the entire criminal proceedings including the order dated 05.08.2022 passed in Criminal Case No. 1900 of 2019, arising out of Case Crime No. 283 of 2018 under Section 419, 420, 506, 120-B IPC and Section 66 IT Act, P.S.-Inayat Nagar, District-Faizabad/Ayodhya as also the order dated 21.10.2023 passed in Criminal Revision No. 187 of 2022 (Shyam Gupta vs. State of U.P. and Another) whereby the revision has been rejected.
Considered the following facts, as indicated:- (i) In relation to embezzlement of amount of the Postal Department, an FIR, registered as Case Crime No. 283 of 2018, under Section 419, 420, 409 IPC & 66 of IT Act, P.S.-Inayat Nagar, District-Faizabad/Ayodhya by one Rajesh Kumar, Nirikshak Dakghar, against Abhilash Awasthi. (ii) According to the FIR, Abhilash Awasthi embezzled Rs. 2,37,000/- and the applicant was not named in the FIR. (iii) The name of applicant surfaced during investigation alongwith three persons namely Mohit Kumar Rastogi S/o Rajendra Kumar Rastogi, Rammohan Gupta S/o Late Rajaram Gupta and Pamesh Rastogi S/o Late Swami Dayal. (iv) After some investigation, the charge sheet No. 01 CSN. 147/18 dated 24.04.2019 under Section 419, 420, 120-B IPC & 66 of the IT Act, annexed as Annexure No. 4. (v) During investigation, in relation to other accused namely Abhilash Awasthi, Mohit Kumar Rastogi, Ram Mohan Gupta and Pamesh Rastogi, the amount in issue was deposited and thereafter as appears impugned order dated 05.08.2022, the final report was submitted against all these accused. (vi) In the inquiry report carried out by the Department the inquiry officer vide its report dated 27.09.2015 indicated the names of the persons involved in the embezzlement and the same are Abhilash Awasthi, Vijay Prakash Tiwari, Prem Sagar, Uday Shankar Singh, Neeraj Singh, K.P. Ojha, Jitendra Kumar, Durga Prasad Yadav and Ram Shankar Pandey. (vii) It is apparent that the applicant was not involvement in the crime.
Also considered the scope of the instant application. This Court in exercise of jurisdiction under Section 482 of CrPC (Now repealed) and Section 528 of BNSS, enforced w.e.f. 01.07.2024, should not meticulously examine the evidence filed along with charge-sheet by the Investigating Officer, as the same is an issue relating to appreciation of evidence and the same can be gone into by the concerned court during trial when the entire evidence is adduced by the parties. The power exercised by this Court is discretionary in nature. This Court in exercise of its inherent powers cannot go into the disputed question of facts. In exercise of power under the said provisions, this court is required to consider the case set up by the prosecution/ complainant for coming to the conclusion as to whether the criminal proceedings are required to be quashed at the initial stage. The accused person during trial is required to place and prove/ establish its defence in accordance with the law of evidence. The defence of the accused is required to be taken note of in the trial by the trial Court. At this stage, a mini trial is not permissible. At the stage of framing of charge as also while exercising power under the said provision, the material/ evidence collected during investigation by the Investigating Officer and in the case of complaint the documents and evidence produced by the complainant before the court concerned can only be considered. [See: Mohd. Allauddin Khan Vs. The State of Bihar And Others (2019) 6 SCC 107); R. P. Kapur Vs. State of Punjab AIR 1960 SC 866; State of Haryana And Others Vs. Ch. Bhajan Lal And Others 1992 Supp. (1) SCC 355; State of Bihar & Anr. Versus P. P. Sharma & Anr.; 1992 Supp (1) SCC 222; Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005 (1) SCC 122; M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682; Rajeev Kourav Vs. Baisahab & Others (2020) 3 SCC 317; State of U.P. Vs. Akhil Sharda & Others 2022 SCC OnLine SC; Salib alias Shalu alias Salim Vs. State of U.P. and Others]. The defence which is irrefutable/ indisputable/ undeniable/ unquestionable/ irrefragable/ beyond suspicion may be considered in exceptional circumstances in the peculiar facts of a given case by this Court while exercising its power/ jurisdiction under the said provisions. [See: Harshendra Kumar D. Vs. Rebatilata Koley and Others, (2011) 3 SCC 351; G. N. Mishra And Another Vs. Smt. Divya Awasthi And Another, MANU/UP/1879/2012].
On being pointed out aforesaid, learned counsel for the applicant stated that the applicant may be permitted to withdraw the present application with liberty to file fresh application with proper pleadings and documents in support thereof including relevant documents related to the disciplinary proceedings initiated against the concerned.
To the aforesaid prayer, there is no objection.
Accordingly, the application is dismissed as withdrawn with aforesaid liberty.
Office is directed to return the certified copies of the documents, if any, to the learned counsel for the applicant, as per Rules in this regard.
Order Date :- 13.9.2024
Vinay/-