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Sushil Kumar And Others v. State Of U.P. And Another - APPLICATION U/s 482 No. 14461 of 2006  RD-AH 20351 (30 November 2006)
(Court No. 48)
Criminal Misc. Application No. 14461 of 2006
1. Sushil Kumar son of Prem Shanker,
R/o Mohalla Baksaria, P.S. Kotwali,
2. Sanjau Kumar S/o Chandrapal Mishra,
R/o Mohalla Roshanganj, P.S. Kotwali,
3. Shiv Kumar @ Shibbu, son of Prakash,
R/o Khwaja Firoj, P.S. Kotwali,
District Shahjahanpur. ....... Accused-.Applicants
1. State of U.P.
2. Mnoj son of Salik Ram,
R/o Village Reharia, P.S. Sindhauli,
District Shahjahanpur. ( Informant)
Hon'ble Barkat Ali Zaidi, J
1. Heard Sri B.B. Jaiswal, advocate for the applicants Sushil Kumar and three others and Sri Ashutosh Srivastava, Addl. Government Advocate for the State.
2. In Criminal Complaint Case No. 1651 of 2004, presently pending in the Court of IInd Addl. Chief Judicial Magistrate, Shahjahanpur filed by the Opp.Party No. 2 Manoj son of Saliq Ram besides other Rakesh and Manoj partners of form Ganga Sahai Bhagwan Sahai, the process was also issued against the present applicants under Sections 420,406,504 and 506 I.P.C.
3. The allegation is that applicants Sushil Kumar Sanjau Kumar are the Munims and applicant no.3 Shiv Kumar @ Shibbu is the weighmen of the firm. Opp. Party No. 2 sells the grain collected from the farmers, in Mandi Samiti. During a transaction in question between him and the firm, all these three applicants and the partners of the firm defrauded him with an amount of Rs. 6,82,000/-.
4. The applicants have, therefore, come here under Section 482 Cr.P.C. for termination of the criminal proceedings.
5. It is contended on behalf of the applicants that there was no criminal intent on the part of the applicants. The transaction was exactly between the firm and the seller, Opp.Party No. 2. The applicants are merely the servants of the firm, and, they cannot be fastened with any criminal liability.
6. All these questions are the questions of fact, which can be determined by the trial Magistrate in view of the facts and circumstances of the case and there is no such material on the record, on the basis whereof, it may be said that no case is made out against the applicants-accused.
7. Even the Judicatory Principle and the practice require that such grievances be first raised before the Trial Magistrate by filing a discharge application and in case the applicant raise them before the trial Magistrate, the Trial Magistrate will decide them after considering all the facts and circumstances of the case before he further proceeds with the trial.
8. With this observation, this application under Section 482 Cr.P.C. is disposed of finally.
9. However, incase, the applicants apply for bail, their bail application will be considered the same day.
14461/ 06 n.u.
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