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2020 Supreme(All) 410
IN THE HIGH COURT OF ALLAHABAD
Rajeev Singh, J.
Akhil Sharda & Others - Applicant
Versus
State Of U.P. & Others - Opposite Party
U/S 482/378/407 No. - 2005 of 2019
Decided On : 06-03-2020
For the Applicant : Baljeet Singh, Dr. Lalta Prasad Misra
For the Opposite Party :Govt. Advocate, Kunwar Sushant Prakash, Nadeem Murtaza, Nagendra Mohan, Nilesh Anand, Shubham Tripathi, Sushil Kumar Singh
Point of Law:
Under Section 482 Cr.P.C., High Court may intervene in cases where manifest error has been committed by the Magistrate in issuing process despite the fact that the alleged facts did not at all constitute offences
Headnote:
Criminal Procedure Code, 1973 – Section 482 – Penal Code, 1860 – Section 406, 420, 467, 468, 471, 120- Offence of cheating – Conspiracy – Supply of Beer – Quash of summoning order, charge sheet and entire proceedings of the Case - Held, there is no evasion of tax and it seems that there is a dispute of rebate between the parties and, therefore, the impugned criminal prosecution is a sheer abuse of the legal process. It is in view of the reasons, as observed above that no ingredients of deception, fraudulent or dishonest act by inducing the person or criminal breach of trust or forgery are found – since it is evident from the record that the owner of the vehicle nos. UP32 HN 3209 and UP32 FN 8048 stated that the vehicles were standing in his yard, meaning thereby, either the owner is a falsehood or the service provider of the vehicles to the Company is plying illegal vehicles on the aforesaid numbers, which is a matter of investigation – Hence investigation of Case Crim be transferred to C.B.C.I.D – Ordered accordingly
Facts of the Case:
M/s. Sical Logistics Ltd. lodged under Sections 420, 406 I.P.C., P.S. Badalpur, District Gautam Budh Nagar with the allegation that two vehicles, were checked out from the factory premises carrying 1180 cases of Beer –owner of the vehicle stated that the vehicles were standing in his yard, goods were supplied by the Company, but the same did not reach to the destination
Finding of the Court:
There is no evasion of tax and it seems that there is a dispute of rebate between the parties and, therefore, the impugned criminal prosecution is a sheer abuse of the legal process. It is in view of the reasons, as observed above that no ingredients of deception, fraudulent or dishonest act by inducing the person or criminal breach of trust or forgery are found – since it is evident from the record that the owner of the vehicle nos. UP32 HN 3209 and UP32 FN 8048 stated that the vehicles were standing in his yard, meaning thereby, either the owner is a falsehood or the service provider of the vehicles to the Company is plying illegal vehicles on the aforesaid numbers, which is a matter of investigation – Hence investigation of Case Crime be transferred to C.B.C.I.D.
Result: investigation of Case Crime transferred to C.B.C.I.D.
JUDGMENT :
1. Heard Shri L.P. Mishra, learned counsel assisted by Shri Baljeet Singh appearing for the applicants, Shri V.K. Shahi, learned Additional Advocate General assisted by Shri Anurag Verma, learned A.G.A. for the State and Shri Prashant Chandra, learned Senior Counsel assisted by Ms. Mahima Pahwa appearing for the complainant-respondent no. 2.
2. This application under Section 482 Cr.P.C. has been filed seeking the following main relief’s:
“I. set aside the impugned summoning order dated 13.02.2019 passed in Criminal Case No. 5694/2019, Case Crime No. 0260/2018, under Section 406, 420, 467, 468, 471, 120-B I.P.C., Police Station-Husainganj, district Lucknow.
II. set aside the impugned charge sheet dated 10.02.2019, filed by the Investigating Officer in Case Crime No. 0260/2018, under Section 406, 420, 467, 468, 471, 120-B I.P.C., Police Station-Husainganj, District Lucknow.
III. set aside the entire proceedings of the Case Crime No. 0260/2018, under Section 406, 420, 467, 468, 471, 120-B I.P.C., Police Station-Husainganj, District Lucknow.”
3. Shri L.P. Mishra, learned counsel appearing for the applicants submitted that applicant no. 4, i.e., M/s. United Breweries Ltd. (hereinafter referred to as the ‘Company’), which is a registered company engaged in manufacture and sale of Beer, received a demand order on 7th September, 2018 at 7.56 p.m. through e-mail by the Manager of the licensee-Ashok Jaiswal, on which, the Company directed its transporter, namely, M/s. Sical Logistics Ltd. to arrange vehicles to deliver the goods from its go-down located at Ghaziabad to the licensee at Lucknow.
4. M/s. Sical Logistics Ltd. has a contract for arrangement of trucks for transportation services with New Fatehpur Kolkata Transport Company, which, in turn, hires several trucks from open market. In the aforesaid transaction, New Fatehpur Kolkata Transport company had hired truck nos. UP32 HN 3209 and UP32 FN 8048 for delivery of consignment of respondent no. 2 to Lucknow. In the course of process, M/s. Sical Logistics Ltd. issued BT/consignment note dated 11 September, 2018 for delivering the Beer to the consignee, namely, Ashok Kumar Jaiswal, Station Road, Lucknow. After arrangement of the trucks by the transporter, transport permit-F.L. 36 was taken from Excise Department on 11.09.2018 for supply of the Beer by 13th September, 2018. Consignment of Beer was dispatched for delivery to the licensee at Lucknow on 11.09.2018 by truck nos. UP32 HN 3209 and UP32 FN 8048 after payment of excise duty, in advance. It is, thus, submitted by learned counsel for the applicants that the Company consigned the entire goods/Beer in respect of the demand order dated 7th September, 2018 through Company’s registered transporter by the aforesaid trucks, which were having GPS systems as mandated by Excise department’s Track and Trace Policy.
5. He further submitted that one QTS Solutions Pvt. Ltd. was the contractor, authorised by the Excise department for tracking the location of the trucks and both the trucks were in contact of the said Agency through GPS upto the outer limit of city of Lucknow. The GPS device of both the trucks lost contact with GPS tracker Agency on 13th September, 2018 after 11.41 p.m., on which, QTS Solutions Pvt. Ltd. sent a message through e-mail on 14.09.2018 at 4.15 p.m. to Mr. Dharam Chand, who was working as Depot In-charge under the Company, who, in turn, informed to the two officials of Company as well as the transporters M/s. Sical Logistics Ltd. about the lost of the trucks. Learned counsel for the applicants submited that QTS Solutions Pvt. Ltd. and M/s. Sical Logistics Ltd. were instructed by the Company to make serious efforts for tracing the trucks. The officers of the Company also inquired about the location of the truck from respondent no. 2 through telephone forthwith, but respondent no. 2 informed that the trucks had not yet come at his place. Thereafter, the Company apprised the said fact to the Excise department, on wh
