The State Of Uttar Pradesh vs Akhil Sharda

State of Uttar Pradesh & Anr. ...Appellants

Versus

Akhil Sharda & Ors. ...Respondents

With

CRIMINAL APPEAL NO.841 OF 2022

Sanjeet Jaiswal …Appellant

Versus

State of Uttar Pradesh & Ors. …Respondents

JUDGMENT

M. R. Shah, J.

Signature Not Verified Digitally signed by

1. Feeling aggrieved and dissatisfied with the impugned SWETA BALODI Date: 2022.07.11 17:21:52 IST Reason:

judgment and order dated 06.03.2020 passed by the High

1 Court of Judicature at Allahabad, Lucknow Bench, Lucknow

in a Case under Sections 482/378/407 No.2005 of 2019 by

which the High Court in exercise of powers under Section 482

Cr.P.C. has quashed the criminal proceedings arising out of

FIR bearing Case Crime No.260 of 2018 lodged under Section

406, registered at PS – Husainganj, District – Lucknow, the

State of U.P. as well as the original informant have preferred

the present appeals.

2. The facts leading to the present appeals in a nutshell are

as under:

For the sake of convenience, the parties are referred as

per the cause title in Criminal Appeal No.840 of 2022 filed by

the State of U.P. That the respondent no.4 herein M/s.

United Breweries Limited is engaged in manufacture of sale of

beer which is regulated and governed by the Excise Act and

other relevant clause of the State. Respondent No.5 – M/s

Beehive Alcoveb is the licenced Firm having F.L. 2B licence,

engaged in the business of beer etc. by purchasing the goods

from the company, Respondent No.5 ­ Sanjeet Jaiwal –

original informant of FIR No.260 of 2018, Manager of the

2 company – M/s Beehive Alcoweb. On 07.09.2018 at 7.56 p.m.

respondent no.5 sent a demand order at 7.56 p.m. and on

11.09.2018 through e­mail for delivery of three trucks of beer

to respondent No.4 – M/s United Breweries Limited and

transferred a total sum of Rs.92,98,902/­ to deliver two

trucks in Lucknow and one in Varanasi. The Respondent

no.4 directed its transporter SICAL Logistics Limited Company

to arrange a vehicle and deliver goods to Respondent no.5/the

informant. That in furtherance of the same, M/s. SICAL

Logistics Limited Company contacted another transport

company, who in turn, hired two trucks vide truck

registration numbers UP­32HN/3209 and UP­32FN/8048 for

delivery of consignment of respondent no.5/informant to

Lucknow after obtaining transfer permit FL­36 from Excise

Department. The trucks were enabled with GPS systems as

maintained by the Excise Department Track and Trace policy.

2.1 The consignment of beer was dispatched on 11.09.2018

through the aforesaid two trucks. The GPS devices of both

the trucks lost contact with GPS tracking agency on

13.09.2018 after 11.41 pm. On 13.09.2018 at about 16.40

3 hrs. when the transporter contacted through his mobile phone

to driver Mukesh on his mobile phone, he was informed that

the vehicles were standing near Junabganj, Lucknow at

Chauhan Dhaba (outer area of Lucknow) due to “no entry”. It

appears that thereafter neither the tracer could be contacted

nor the vehicles could be traced. With no positive response

from the supplier, respondent no.1 and the goods not being

delivered though full payment was made and the goods being

missing midway, respondent no.5 lodged the present FIR

bearing Case Crime No.260 of 2018 for the offence under

Sections 406 & 420 IPC. In the meantime, the Manager of

M/s SICAL Logistic also lodged a separate FIR bearing Case

Crime No.390 of 2018 under Sections 420 & 406 IPC PS

Badalpur, Gautam Budha Nagar against two truck drivers

and one unknown person. After the conclusion of the

investigation, the Investigating Officer filed the charge­sheet

against respondent no.5 in Case Crime No.26 of 2018 dated

10.02.2018 and thereafter the learned Magistrate passed the

summoning order dated 13.02.2019. Even subsequently the

Investigating Officer PS Badalpur has also filed the charge­

sheet in the case arising out of Case Crime No.227 of 2019 PS

4 – Banthra, District Lucknow (Old No.390 of 2018). Thereafter

goods were delivered to the original informant. Also,

respondent no.1 to respondent no.4 herein, accused in

Criminal Case No.5694 of 2019 (arising out of FIR No.260 of

2018) approached the High Court by way of an application

under Section 482 Cr.P.C. being Case Crime No.2005 of 2019

seeking the following main reliefs:

“(i) set aside the impugned summoning order dated 13.02.2019 passed in Criminal Case No. 5694/2019, Case Crime No. 0260/2018, under Section 406, 420, 467, 468, 471, 120­B I.P.C., Police Station­Husainganj, district Lucknow.

(ii). set aside the impugned charge sheet dated 10.02.2019, filed by the Investigating Officer in Case Crime No. 0260/2018, under Section 406, 420, 467, 468, 471, 120­B I.P.C., Police Station­ Husainganj, District­ Lucknow.

(iii) set aside the entire proceedings of the Case Crime No. 0260/2018, under Section 406, 420, 467, 468, 471, 120­B I.P.C., Police Station­ Husainganj, District­ Lucknow.”

2.2 By the impugned judgment and order the High Court in

exercise of powers under Section 482 Cr.P.C. has quashed the

entire criminal proceedings including the charge­sheet and

the summoning order arising out of Criminal Case No.5694 of

5 2019 (arising out of Case Crime No.260 of 2018 PS –

Husainganj, District – Lucknow).

2.3 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court quashing the

criminal proceedings and the summoning order passed by the

learned Trial Court in Criminal Case No.5694 of 2019 (arising

out of Case Crime No.260 of 2018 PS – Husainganj, District –

Lucknow), the State as well as the original informant have

preferred the present appeals.

3. Ms. Aishwarya Bhati, learned ASG has appeared on

behalf of the appellant ­ State of UP and Dr. Abhishek Manu

Singhvi, learned Senior Advocate has appeared on behalf of

the original informant. Shri Ranjeet Kumar, learned Senior

Advocate and Shri Sidharth Dave, learned Senior Advocate

have appeared on behalf of the original accused.

4. Ms. Bhati, learned ASG and Dr. Singhvi, learned Senior

Advocate appearing on behalf of the original informant have

vehemently submitted that in the facts and circumstances of

6 the case the High Court has committed a grave/serious error

in quashing the entire criminal proceedings in exercise of

powers under Section 482 Cr.P.C.

4.1 It is submitted on behalf of the State as well as the

original informant that while passing the impugned judgment

and order while quashing the criminal proceedings arising out

of Case Crime No.260 of 2018 the High Court has not properly

appreciated and/or considered the larger conspiracy.

4.2 It is submitted that the High Court has not appreciated

and/or considered the fact that both the FIRs being Case

Crime Nos.260 of 2018 and 227 of 2019 are interconnected

and cannot be separated. It is submitted that the High Court

ought not to have set aside the criminal proceedings arising

out of one FIR being Case Crime No.260 of 2018.

4.3 It is submitted that the High Court has failed to note

and/or appreciate the allegations in the FIR being FIR No.260

of 2018 which were relating to disappearances of trucks

loaded with beer from highways in Uttar Pradesh which

7 involve allegations of forging data and uploading incorrect data

against the Respondent ­Accused.

4.4 It is further submitted that by passing the impugned

judgment and order the High Court has curtailed and

narrowed the scope of the investigation.

4.5 It is submitted that even the High Court agrees that the

allegations are serious and require investigation. However,

without a further prayer in that regard and at the instance of

the accused, the High Court has transferred the investigation

to CB­CID to investigate the FIR being FIR No.227 of 2019

lodged by the accused themselves.

4.6 It is further submitted that while passing the impugned

judgment and order and quashing the criminal proceedings

the High Court has not properly appreciated and considered

various aspects of the case and the complicity of the accused

have not been considered.

8 4.7 It is submitted that two whole trucks loaded with beer

went missing and the beer bottles was not found. There was

no recovery or seizure of the goods concerned. It had come

during investigation that there were other such instances of

disappearance of trucks loaded with beer bottles. It is

submitted that there is a syndicate operating with the

connivance of the accused persons.

4.8 It is submitted that the manner in which the trucks

loaded with beer bottles went missing and the modus operandi

adopted, in such a serious matter but the High Court has

quashed the criminal proceedings; that the High Court has

exceeded its jurisdiction while exercising the powers under

Section 482 Cr.P.C.

4.9 It is submitted that while quashing the criminal

proceedings in exercise of powers under Section 482 Cr.P.C.

the High Court has conducted a mini trial which as such is

not permissible while exercising the powers under Section 482

Cr.P.C.

9 4.10 Learned Counsel appearing on behalf of the respective

appellants have heavily relied upon the following decisions of

this Court in support of their above submissions and the

prayer to quash and set aside the impugned judgment and

order.

(i) Odisha vs. Pratima Mohanty, 2021 SCC Online SC

1222 [paras 14, 15, 16, 18 & 22]

(ii) CBI vs. Thommandru, 2021 SCC Online SC 923

(iii) Rajeev Kourav vs. Baisahab, (2020) 3 SCC 317

(iv) Neeharika Infrastructure vs. Maharashtra, 2021

SCC Online SC 315

(v) Rajiv Thapar vs. Madan Lal Kapoor, (2013) 3 SCC

330.

(vi) Divine Retreat vs. Kerala, (2008) 3 SCC 542.

4.11 It is further submitted by learned counsel appearing on

behalf of the appellants that in the present case the High

Court delivered the judgment after a period of six months from

the date it was reserved for judgment. Therefore, the

impugned judgment and order passed by the High Court

deserves to be quashed and set aside. Reliance is placed in

the decision of this Court in the case of Anil Rai vs. State of

Bihar, (2001) 7 SCC 318.

10 Making the above submissions and relying upon the

above decisions it is prayed to allow the present appeals and

quash and set aside the impugned judgment and order passed

by the High Court quashing and setting aside the criminal

proceedings arising out of FIR bearing Case Crime No.260 of

2018 lodged under Section 406, registered at PS –

Husainganj, District – Lucknow.

5. Both these appeals are vehemently opposed by Shri

Ranjeet Kumar, learned Senior Advocate and Shri Sidhartha

Dave, learned Senior Advocate appearing on behalf of the

respective accused.

5.1 Learned counsel appearing on behalf of the original

accused have vehemently submitted that in the facts and

circumstances of the case and after having satisfied that the

ingredients of Sections 406, 420 IPC are not made out and the

case falls within the parameters laid down by this Hon’ble

Court in the case of Ch. Bhajan Lal vs. State of Haryana

1992 Supp (1) SCC 335 which are required to be considered

while quashing the criminal proceedings, the Hon’ble High

11 Court has not committed any error in quashing and setting

aside the criminal proceedings.

5.2 It is submitted that as such the respondents herein ­

original accused are not at all in anyway responsible for the

missing of the trucks loaded with beer after the same were

dispatched from their company. It is submitted that in fact

the respondents – original accused delivered the goods to the

transporter namely SICAL Logistic and in turn hired two

trucks. It is submitted that it was the SICAL Logistic who

arranged the vehicles to deliver goods to the informant. It is

submitted that thereafter the goods have been delivered. It is

also found by the High Court that there was no loss caused to

the Excise Department. It is submitted that the main

grievance/dispute by the informant was with respect to the

rebate and therefore with a mala fide intention, the FIR was

lodged. That so far as the rebate is concerned, no allegation

was made in the FIR. Therefore, in the facts and

circumstances of the case the High Court has not committed

any error in quashing and setting aside the criminal

proceedings, as it was nothing but an abuse of process of law.

12 Relying upon the decision of this Court in the case of Ch.

Bhajan Lal (supra); Indian Oil Corporation vs. N.E.P.C.

India Ltd. and others­ reported in (2006) 6 SCC 736; Rajiv

Thapar (supra) and Jetking Infotrain Ltd. vs. State of U.P.,

(2015) 11 SCC 730., it is prayed to dismiss the present

appeals.

6. We have heard learned counsel for the respective parties

at length.

6.1 At the outset, it is required to be noted that by the

impugned judgment and order the High Court in exercise of

powers under Section 482 Cr.P.C. has quashed the criminal

proceedings arising out of FIR bearing Case Crime No.260 of

2018 including the charge­sheet filed by the Investigating

Agency as well as the summoning order passed by the learned

Trial Court.

6.2 At the outset, it is required to be noted that the High

Court has delivered the impugned judgment and order after a

period of six months after the matter was reserved for

13 judgment. Though the judgment and order passed by the High

Court may not be set aside on the aforesaid ground only,

however it is always advisable that the High Court delivers the

judgment at the earliest after the arguments are concluded

and the judgment is reserved. While emphasizing the need to

pronounce the reserved judgment at the earliest and within a

reasonable time this Court in the case of Anil Rai (supra) has

observed and held in para 9 as under:

“9. It is true, that for the High Courts, no period for pronouncement of judgment is contemplated either under the Civil Procedure Code or the Criminal Procedure Code, but as the pronouncement of the judgment is a part of the justice dispensation system, it has to be without delay. In a country like ours where people consider the Judges only second to God, efforts be made to strengthen that belief of the common man. Delay in disposal of the cases facilitates the people to raise eyebrows, sometimes genuinely which, if not checked, may shake the confidence of the people in the judicial system. A time has come when the judiciary itself has to assert for preserving its stature, respect and regards for the attainment of the rule of law. For the fault of a few, the glorious and glittering name of the judiciary cannot be permitted to be made ugly. It is the policy and purpose of law, to have speedy justice for which efforts are required to be made to come up to the expectation of the society of ensuring speedy, untainted and unpolluted justice.”

In the aforesaid decision this Court has also taken note

of the observations made by this Court in another case in the

14 case of Bhagwandas Fatechand Daswani and Ors. vs. HPA

International and Ors., (2000) 2 SCC 13 that “a long delay

in delivery of the judgment gives rise to unnecessary

speculations in the minds of the parties in a case”.

7. Having gone through the impugned judgment and order

passed by the High Court by which the High Court has set

aside the criminal proceedings in exercise of powers under

Section 482 Cr.P.C., it appears that the High Court has

virtually conducted a mini trial, which as such is not

permissible at this stage and while deciding the application

under Section 482 Cr.P.C. As observed and held by this

Court in a catena of decisions no mini trial can be conducted

by the High Court in exercise of powers under Section 482

Cr.P.C. jurisdiction and at the stage of deciding the

application under Section 482 Cr.P.C., the High Court cannot

get into appreciation of evidence of the particular case being

considered.

(See Pratima (supra); Thom (supra); Rajiv (supra) and

Niharika (supra).

15 7.1 Applying the law laid down by this Court in the aforesaid

decisions to the facts of the case on hand and the manner in

which the High Court has allowed the petition under Section

482 Cr.P.C., we are of the opinion that the impugned

judgment and order passed by the High Court quashing the

criminal proceedings is unsustainable. The High Court has

exceeded in its jurisdiction in quashing the criminal

proceedings in exercise of powers under Section 482 Cr.P.C.

7.2 It is also required to be noted that even the High Court

itself has opined that the allegations are very serious and it

requires further investigation and that is why the High Court

has directed to conduct the investigation by CB­CID with

respect to the FIR No.227 of 2019. However, while directing

the CB­CID to conduct further investigation/investigation, the

High Court has restricted the scope of investigation. The High

Court has not appreciated and considered the fact that both

the FIRs namely FIR Nos.260 of 2018 and 227 of 2019 can be

said to be interconnected and the allegations of a larger

conspiracy are required to be investigated. It is alleged that

the overall allegations are disappearance of the trucks

16 transporting the beer/contraband goods which are subject to

the rules and regulations of the Excise Department and Excise

Law.

7.3 The High Court has quashed the criminal proceedings by

observing that there was no loss to the Excise Department.

However, the High Court has not at all appreciated the

allegations of the larger conspiracy. The FIR need not be an

encyclopedia (See Satpal vs. Haryana, (2018) 6 SCC 110

Para 7).

7.4 Even otherwise, it is required to be noted that the

allegation of missing of two trucks was the beginning of the

investigation and when during the investigation it was alleged

that earlier also a number of trucks were missing transporting

contraband goods, the FIR should not have been restricted to

missing of the two trucks only and return of on the goods

thereafter. The High Court has not at all appreciated and/or

considered the allegation of the larger conspiracy and that

both the FIRs/criminal cases are interconnected and part of

the main conspiracy which is very serious if found to be true.

17 We however refrain from making any further observations as

at this stage of proceedings as we are at the stage of deciding

the application under Section 482 Cr.P.C. only and as the trial

of both the cases have yet to take place. Therefore, we refrain

from making any further observations which may affect the

case of the either of the parties. Suffice it to say and mention

that in the facts and circumstances of the case the High Court

has committed a grave/serious error in quashing and setting

aside the criminal proceedings arising out of Criminal Case

No.5694 of 2019 and Case Crime No.260 of 2018 PS lodged

under Section 406, registered at PS – Husainganj, District –

Lucknow.

8. In view of the above and for the reason stated above both

these Appeals Succeed. The impugned judgment and order

passed by the High Court is hereby quashed and set aside to

the extent quashing and setting aside the criminal

proceedings Criminal Case No.5694 of 2019 arising out of

Case Crime No.260 of 2018 PS lodged under Section 406,

registered at PS – Husainganj, District – Lucknow.

18 The proceedings before the learned Trial Court in

Criminal Case No.5694 of 2019 are ordered to be restored to

file. Present Appeals are accordingly Allowed to the aforesaid

extent.

…………………………………J. (M. R. SHAH)

…………………………………J. (B.V. NAGARATHNA) New Delhi, July 11, 2022.

19