NAGENDRA KUMAR JAIN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE applicant has been summoned under Section 409 I.P.C. and Section 3/7 of the Essential Commodities Act in pursuance of a complaint lodged against him. As the complaint is very long one and it would be needless to deal with the entire allegations. I may refer to salient features. THE applicant is a licenced Cement dealer. THE allegation is that from the cement factory the applicant lifted a larger quantity of cement and he has not accounted for 92 M.T. of such cements. As to what actual quantity the applicant lifted and how much was accounted for are both questions of fact. THE averment is there, the prosecution will stand upon its own legs, papers of the applicant would also be available and in light of the cumulative evidence it is the trial court which can examine as to find out whether the allegations are raise or correct. If this Court starts functioning as a court of inquiry and trial, and it starts trying cases itself on the strength of affidavits and counter affidavits, etc., it would instead of serving the ends of justice rather defeat it and disturb the normal procedure regarding trial of cases laid down in the Cr. P.C. That is why the Supreme Court has repeatedly pronounced that the powers under Section 482 Cr. P.C. are to be exercised in very rare cases and certain criteria have also been laid down. THE leading cases on the point are the cases the of R.P. Kapur v. State of Punjab1, Madhu Limaye v. State of Maharashtra2, and latest ponouncement Delhi Municipality v. Ram Kishan3. What has been laid down in these rulings is that the Court has to examine whether accepting the allegations in the complaint, without adding or subtracting thereto and the materials before the Magistrate a prima facie case is disclosed or not. So that is the approach which has to be made.

(2.) I have gone through the recitals of the F.I.R. I find that the submission of the learned counsel for the applicant that as any offence under Section 409 I.P.C. would not be made out not without force. His submissions are supported by the pronouncement in the case of State of Gujarat v. Jaawant La14, but the crux of the, matter is whether any other offence on the recitals of the complaint is made out or not. To be more specific as the applicant has also been summoned under Section 3/7 of the Essential Commodities Act, the court has to consider whether the complaint discloses prima facie and any offence under that section. As regards that aspect it would, no doubt, appear that a number of allegations including black marketing have been made, but the stand is not only on black-marketing of the cement. I may refer to last paragraph of the complaint in which it has been specifically averred that contravention of certain orders of the Cement Control Order have been made. In fact, he would have avoided to refer to the specific provisions, but as the matter has been vehemently argued and much stress is being laid down, I may in brief mention the gist of Order 11 and Order 12 of the U.P. Cement Control Order, 1973. It requires the dealer to maintain the correct account books concerning the cements received and distributed and such books have also be made open for instruction. It empowers the State Government under Order 11 to regulate the supply and distribution of cement. When that is the position, any contravention of these orders by not accounting for any quantity of cement received by the licenced dealer may prima facie constitute an offence, though during trial, it is always open to explain away all circumstances or to show that actually any contravention is not made out. That is a matter for consideration by the trial court itself. In the circumstances, I am unable to say that prima facie any offence under Sections 3/7 of the Essential Commodities Act is not disclosed by reading of the complaint. When that is the position, neither the complaint nor the criminal proceedings against the applicant can be quashed and this application is summarily rejected.