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NEERAJ KUMAR SRIVASTAVA versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Neeraj Kumar Srivastava v. State Of U.P. And Another - APPLICATION U/s 482 No. 9314 of 2005 [2005] RD-AH 1835 (6 August 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 49

Criminal Misc. Application No. 9314 of 2005

Neeraj Kumar Srivastava Vs.State of U.P. And others

Counsel for the petitioner:- Sri Vikas Srivastava,

Counsel for the respondents: A.G.A., Sri S.K.Pandey.

Hon'ble M. K. Mittal, J.

Application has been filed under Section 482 Cr.P.C. with the prayer to quash the proceedings in Criminal Case no. 763 of 1999 pending in the Court of Chief Judicial Magistrate, Bhadohi under Sections 420, 406, 467, 468, and 471 IPC. The opposite party no. 2 has also filed counter affidavit. The application has been filed with the allegation that the opposite party no. 2 Vinod Kumar Pandey filed a complaint in the Court of Addl. Civil Judge, Bhadohi against the applicant and  seven others with the allegation that the accused opened the branch office of M/s Becan Green Hindustan Agro Limited with Head Office at Kanpur. The branch was inaugurated in Kasba Khamaria in a rented house on 2.8.1997. According to the complainant the accused applicant was branch manager of that branch. Complainant was also employed but no salary was paid to him. The complainant and his family members also opened recurring deposit account and  deposited money but it was not paid back and it came to light that the accused persons had cheated the depositors and had thereafter absconded. On that complainant the accused after necessary enquiry were summoned by the learned Magistrate vide order dated 5.9.1998 under Sections 420, 406, 467, 468, 471 IPC. The further case of the applicant is that he filed protest petition against the summoning order on 19.5.2004 but the same was rejected by the learned Addl. and Sessions Judge, Bhadohi vide order dated 22.6.2005 and thereafter the applicant filed the present application claiming that he has been falsely implicated in this matter and that the proceedings are liable to be quashed.

The opposite party no. 2 has filed counter affidavit and has contended that the applicant has concealed the material fact that he had earlier filed a Cri. Misc. Application No. 4527 of 1998 under Section 482 Cr.P.C. challenging the summoning order dated 5.9.1998 and the same was rejected by this Court on merit vide order dated 11.2.1999. The opposite party no. 2 has deposed this fact in the counter affidavit and has also filed the copy of the order as annexure-CA-1.The perusal of this order dated 11.2.1999 shows that the applicant Neeraj Kumar Srivastava and one more co-accused Pankaj Kumar Srivastava had filed the application challenging the summoning order dated 5.9.1998 passed in complaint case no. 101 of 1998 and it was held that impugned order does not attract the illegality or improbability, which can justify interference by this Court under Section 482 Cr.P.C.

Learned counsel for the applicant could not give any explanation about this  concealment. Learned counsel for the opposite party no. 2 and learned A.G.A. have contended that the application under Section 482 Cr.P.C. of the applicant has already been rejected against the summoning order and now the present application is not maintainable. This contention has force. The applicant has challenged the summoning order in the earlier application and the same was rejected but the applicant concealed that fact and has now filed the present application challenging the summoning order, although in between the protest petition had also been rejected by the learned Trial court and also by the Revisional Court. But the rejection of protest petition does not absolve him of his conduct and does not entitle him to any relief. Rather it shows the malafide conduct of the applicant in as much as he filed the protest petition although his application under Section 482 Cr.P.C. had already been rejected by this Court in the year 1999.

Before parting with the case I will like to mention that conduct of the applicant in concealing the filing of the earlier          application in respect of the same summoning order is condemnable and is deprecated. In the circumstances, application filed under Section 482 Cr.P.C. is liable to be dismissed and the cost of Rs. 5000/- is to be imposed on him which shall be payable to opposite party no. 2.

Application under Section 482 Cr.P.C. is hereby dismissed. Applicant shall deposit Rs. 5000/- as cost in the Lower Court within 15 days and after    it is deposited the same shall be paid to opposite party no. 2 that is the complainant of the case.

Dated:6.9.2005

9314/05


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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