YOGESH TIWARI Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri V.P. Srivastava, learned senior advocate assisted by Sri P.N. Singh learned counsel for the applicant and the learned A.G.A. and have taken through the record. By means of the present application under Section 482, Cr.P.C. the applicants have invoked Inherent jurisdiction of this Court with a prayer to quash the charge-sheet dated 11.9.2012 arising out of Case Crime No. 39 of 2012 (now Sessions Trial No. 1877 of 2012) under Sections 420 /467 /468 /469 /471 /506, I.P.C., P.S. Sisamau District Kanpur Nagar whereof cognizance has been taken by the learned Metropolitan Magistrate VIII, Kanpur Nagar against the applicant.

(2.) The facts emanating from the prosecution in a short conspectus is that the opposite party No. 2 filed an application under Section 156(3), Cr.P.C. in the Court of Additional Chief Metropolitan Magistrate 1st Kanpur Nagar stating therein that the applicant and co-accused introduced themselves men of high status having approaches with high dignitaries in the Irrigation department. They will get the tender of Om Hut Pump Canal Phase-II to the tune of Rs. 7,368.62 lacs in favour of the complainant and demanded Rs. 75.00 lacs for greasing the palm of higher authorities. Rest of the amount will be taken after finalisation of tender in his favour. The complainant paid Rs. 5.00 lacs on 30.4.2010, Rs. 20.00 lacs on 1.5.2010 and Rs. 50,000 on 6.5.2010. The complainant was in contact with the accused persons on their assurances that he should wait. In the month of September 2010, the aforesaid accused persons showed the complainant forged departmental order demanding rest of the amount. When the complainant enquired from the department concern. It emerged that no such tender was passed in his favour. On the demand of the complainant, accused persons returned Rs. 18,00,000/-. On demand of return of entire amount, the accused persons lost their temper and were highly infuriated extending threats to his life. The complainant approached to the Director General of Police U.P. Lucknow who directed to Deputy Director General of Police Kanpur for enquiry. The Deputy Director General of Police Kanpur referred the matter to the Circle Officer Sisamau District Kanpur but no first Information report was lodged. Pursuant to the order of the Magistrate, first Information report was lodged against the accused persons. The Investigating Officer collected credible and clinching material against the applicants on the basis of which charge-sheet was submitted and the learned Magistrate has taken cognizance of the aforesaid offence.

(3.) It is contended by learned senior counsel appearing on behalf of the applicant that the investigation of the case was done in very pedantic and casual manner as the Investigating Officer while recording the statement of the witnesses has taken their affidavits on record as part of their statement under Section 161, Cr.P.C. In their statement the witnesses have stated that they have already filed affidavits which may be treated part of their statement. Such affidavits signed and given by the witnesses to the Investigating Officer will not have any evidentiary value and is also hit by the provisions of Section 162 of Cr.P.C. The entire story set up by the prosecution is a bundle of concoction and fabrication as it is not possible and comprehensible that the complainant had paid such hefty amount in cash on different dates to the accused persons of which there is no documentary proof. The cash book produced by the clerk during investigation does not indicate that the cash balance which is alleged to have been paid was deducted for that purpose from the total balance amount. There is no entry of deduction in the cash book on the alleged dates. In case the complainant has paid any amount, he can approach before the appropriate forum for the recovery of same. The Initiation of the criminal proceeding at the instance of the complainant for money transaction is nothing but sheer abuse of process of law. The Investigating Officer has not Investigated the matter fairly and impartially manner. The charge-sheet has been submitted in very pedantic and perfunctory manner without delving into the depth about the truth and veracity of allegation.