Bobby Anand @ Yogesh Anand vs State of U. P.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 907

IN THE HIGH COURT OF ALLAHABAD
SHIV SHANKER PRASAD, J.
Bobby Anand @ Yogesh Anand – Appellant
Versus
State of U.P. and Another – Respondents
Application U/s 482 No. 7631 of 2008
Decided On : 17-05-2023

Advocates:
Advocate Appeared:
For the Appellants : Punit Kumar Gupta, A.P. Paul.
For the Respondents: Rahul Chaturvedi, Suresh Chandra Pandey.

Headnote:
Constitution of India, 1950 – Article 32, 226 – Indian Penal Code, 1860 – Sections 381, 420, 511, 34 – Criminal Procedure Code, 1973 – Section 200, 210, 482 – N.I. Act – Section 138 – Quashing the entire proceedings of Case – Dishonour of cheque – Cheating and dishonestly inducing delivery of property – Extraordinary, Equitable and Discretionary – Held, Court finds no substance in submissions made by learned counsel for opposite party no. 2 and learned A.G.A. for State and also finds that case laws relied upon by them are clearly distinguishable in facts of present case – Court is of firm opinion that present criminal proceedings initiated against applicant are not only malicious but also amount to an abuse of process of Court – As such, proceedings of above mentioned complaint case are liable to be quashed by this Court – Application allowed.

JUDGMENT :

SHIV SHANKER PRASAD, J.

1. Heard Anil Tiwari, learned Senior Counsel assisted by Sri A.P. Paul, learned counsel for the applicant, Sri Suresh Chandra Pandey, learned counsel for opposite party no. 2 and learned A.G.A. for the State.

2. This application under Section 482 Cr.P.C. has been preferred for quashing the entire proceedings of Case No. 235/IX of 2003 (Dina Nath Chaturvedi vs. Maa Sherwali Production and Others), under Section 138 of N.I. Act, Police Station Kotwali, District Mathura, pending in the court of Judicial Magistrate, Mathura.

CASE OF THE APPLICANT:

3. The applicant had given a complaint letter dated 31.10.2002 with Oshiwara Police Station, Mumbai wherein he informed that two cheques bearing No. 210547 and 210546 were stolen from his office. The applicant has also informed his bank i.e. Punjab and Sind Bank, Juhu Branch, Mumbai through the same letter dated 31.10.2002 (Annexure No. 1), wherein he informed the bank not to clear the above mentioned cheques. On 01.01.2003 a phone call was received from the Bank that one of the cheques mentioned in his letter dated 31.10.2002 was presented before the Bank for clearance. The applicant immediately approached the Senior Inspector of Police, Oshiwara and registered an F.I.R. No. 1/2003 dated 01.01.2003 (Annexure No. 2) against the respondents under Sections 381, 420 read with Section 34 I.P.C.

4. On 11.03.2003 as a counter blast to the aforesaid FIR lodged by the applicant, respondent no. 2 filed a complaint against the applicant (Annexure No. 3) alleging therein that the applicant borrowed Rs.30 lacs from the complainant 10 years ago and after settlement, applicant gave Cheque No. 210547 on 13.12.2002 and the same has been bounced.

5. Earlier on 22.02.1998 the opposite party no. 2 gave an undertaking on the notary stamp paper stating therein that he had no title or interest in the firm named as “M/s. Maa Sherawali Production” and all assets and liabilities pertaining to the said firm belongs to applicant, namely, Sri Bobby Anand @ Yogesh Anand. (Annexure No. 4.).

6. On submission of the said complaint by respondent no. 2, the concerned Magistrate recorded the statement of the complainant under Section 200 Cr.P.C. on 28th March, 2003, which is contradictory and creates doubt in the prosecution case (Annexure No. 5). After that on 1st May, 2003, the concerned Magistrate without perusing the material on record and without application of mind, took cognizance thereon and summoned the applicant in a mechanical manner (Annexure No. 6).

7. On the other hand, in F.I.R. No. 1/2003 dated 01.01.2003 lodged by the applicant, the Investigating Officer after completing investigation under Chapter XII Cr.P.C. submitted the charge-sheet against the opposite party no. 2 and his associates, namely, Santosh, Rakesh Chaturvedi and Manoj Chaturvedi before Xth Metropolitan Magistrate Court at Andheri, Mumbai in Criminal Case No. 371/TW/2004. One accused Santosh arrested by the police on 22.01.2003 and he was granted bail by the X Metropolitan Magistrate. Thereafter opposite party no. 2 and other co-accused persons moved anticipatory bail application before the Sessions Court, Greater Mumbai, and the same was rejected vide order dated 19.09.2003 (Annexure No. 7). After rejection of anticipatory bail by the court below, the opposite party no. 2 and other co-accused approached the Hon’ble High Court, Bombay and the Court passed a descriptive order mentioning therein that opposite party and other co-accused undertake to deposit the second cheque to the Investigating Officer forthwith (Annexure No. 8).

8. The opposite party no. 2 and other co-accused did not comply with their own undertaking given before the Hon’ble Bombay High Court while obtaining order of anticipatory bail and in order to safeguard themselves, as a counter blast opposite party no. 2 maliciously filed the present complaint before the Judicial Magistrate, Mathura under Section 138 N.I. Act.

9. For compliance of the order of