SUNIL AGARWALversusSTATE OF UP AND ANOTHER

          HIGH COURT OF JUDICATURE AT ALLAHABAD

                 CRIMINAL REVISION No. - 589 of 2024

Sunil Agarwal
                                                               .....Revisionist(s)
                                     Versus
State of U.P. and Another
                                                                    .....Opposite
                                                                          Party(s)

Counsel for Revisionist(s)                :   Pawan Kumar Shukla
Counsel for Opposite Party(s)             :   G.A., Ved Prakash Mishra

Court No. - 87
                      HON'BLE ABDUL SHAHID, J.

1. Counter-affidavit is already on record.

2. Learned counsel for the revisionist submits that he does not propose to file
any rejoinder affidavit and is ready to argue the matter finally.

3. Heard learned counsel for the revisionist, learned counsel appearing for
opposite party no. 2, and the learned A.G.A. for the State.

4. The instant criminal revision has been filed against the impugned order
dated 16.11.2023, passed by the learned Judge, Small Cause Court/Criminal,
Moradabad, in Complaint Case No. 2626 of 2014 (Tanbir Husain vs. Sanjay
Rastogi and others), under Sections 420, 468, 471, 504, and 506 I.P.C.,
Police Station Mughalpura, District Moradabad, whereby the discharge
application under Section 245(2) Cr.P.C. filed by the revisionist has been
rejected.

5. Learned counsel for the revisionist submits that the impugned order dated
16.11.2023, passed by the learned Judge, Small Cause Court/Criminal,
Moradabad, is illegal and liable to be set aside. The discharge application
has been rejected without proper application of judicial mind. The trial court,
while deciding the discharge application, failed to consider the specific plea
taken by the revisionist that the receipt filed by the complainant is only a
photocopy and the original has not been produced; hence, such photocopy is
not admissible under the Evidence Act.

6. It is further submitted that the revisionist neither issued the said receipt in
the name of Sanjay Rastogi nor was any courier dispatched from his
company to America. The said receipt is forged and fabricated. The
revisionist did not know Sanjay Rastogi and has no concern with him; he has
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                                2

been falsely implicated. From a perusal of the complaint as well as the
statements, not a single reason has been stated as to why, if the courier was
not delivered, the complainant did not meet Sanjay Rastogi. If any forgery
was committed, the responsibility lies with Sanjay Rastogi and not with the
revisionist. Neither did the complainant book any courier from the
revisionist's company, nor did the revisionist issue any receipt in favour of
the complainant. From a perusal of the alleged receipt, no address of the
revisionist's company is mentioned therein. It is a forged document, either
prepared by Sanjay Rastogi or by the complainant; the revisionist has no
concern with the said courier receipt. The revisionist did not make any
wrongful gain for himself or for any other person, nor did he cause wrongful
loss to any person. No offence under Sections 420, 468, 471, 504, or 506
I.P.C. is made out against the revisionist, as he has not committed any
offence as alleged in the impugned complaint.

7. Learned counsel appearing for opposite party no. 2 has opposed the
revision and contended that the revisionist, in collusion with Sanjay Rastogi,
committed the offence and is not entitled to discharge.

8. The original complaint filed by opposite party no. 2, Tanvir Husain, states
that he had registered a firm in the name of "Overseas," through which he
carries on export business. On 01.04.2014, one Sanjay Rastogi, son of
unknown parentage, resident of Govind Nagar, Gali No. 5, opposite Mohan
Merchant, Police Station Katghar, Moradabad, approached the complainant
and stated that he arranges foreign orders for export firms and works as a
buying agent. He further stated that the name of his company is "SNR
Export" and that he procures large orders for reputed firms.

9. As the complainant had recently started his business and wanted to
expand it, he inquired about the terms and conditions for obtaining orders
through his company. Sanjay Rastogi stated that he would charge 10%
commission on each order and that the complainant would have to bear the
courier expenses for sending samples. He assured the complainant that
within one or two months he would secure large orders. The terms were
settled accordingly.

10. Thereafter, on 03.04.2014, the complainant withdrew Rs. 5,000/- from
his current account (United Bank of India, Account No. 0932050003150,
Cheque No. 762863) and paid the same in cash to Sanjay Rastogi towards
registration charges. After taking the said registration fee, Sanjay Rastogi
allegedly misappropriated a total sum of Rs. 5,38,280/- from the
complainant, the details of which are supported by bank statements and a
handwritten list annexed as Annexures 1 to 9 with the complaint.

11. It is further alleged that Sanjay Rastogi sent fake emails purportedly
from an American email address, "[email protected]," to the
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                                3

complainant through his own email ID, "[email protected]," and
continued to mislead, blackmail, and defraud the complainant. Copies of
such emails are annexed as Annexures 10 to 28.

12. On 02.09.2014, Sanjay Rastogi emailed the complainant stating that the
samples had been approved by an American party and that a large order was
likely to be received soon, and requested that all samples be sent to America
through courier at the earliest. Acting on his instructions, the complainant
prepared three cartons containing 12 pieces, weighing 95.500 kg, and
handed them over to Sanjay Rastogi. The value of the goods was Rs.
25,000/-. Sanjay Rastogi allegedly took Rs. 61,365/- in cash as courier
charges and assured that he would dispatch the goods and provide the
receipt.

13. Subsequently, he provided a photocopy of a receipt of a courier service
named "Team Express Worldwide Service." When the complainant
examined the receipt, he found that the address of the consignee in America
was incomplete, which raised suspicion that no courier had actually been
sent. The complainant then visited the courier company and met its
proprietor, Sunil Agarwal, who admitted that the receipt format belonged to
their company but stated that no consignment had been dispatched through
it. He further stated that whatever had been done was done by Sanjay
Rastogi and asked the complainant to take up the matter with him. Copies of
the receipts are annexed as Annexures 29 and 30.

14. It is further alleged that Sanjay Rastogi used to misappropriate goods in
the name of sending consignments abroad and embezzle money on the
pretext of courier charges, supported by receipts annexed as Annexures 31
and 32, and that courier staff were also involved.

15. On 05.12.2014, at about 9:30 a.m., the complainant, along with his father
Tabassur Hussain and supervisor Mohammad Arif, went to the residence of
Sanjay Rastogi and demanded the return of the money, alleging that he had
been cheated. It is alleged that Sanjay Rastogi behaved abusively, used filthy
language, and threatened to kill the complainant if he was seen there again.

16. Accordingly, it was prayed that the accused persons be summoned and
punished under Sections 420, 466, 468, 470, 471, 474, 323, 504, and 506
I.P.C.

17. The revisionist filed a discharge application, which was rejected by the
learned trial court. Hence, the present criminal revision has been filed.

18. From a perusal of the record, it is evident that the genesis of the case
arises from the complaint filed by opposite party no. 2. All the allegations in
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                                4

the complaint are primarily against Sanjay Rastogi. All negotiations,
payments, and assurances are alleged to have been made by Sanjay Rastogi.
In the complaint, no specific allegation has been made against the
revisionist.

19. The Supreme Court in Sanjay Kumar Rai Vs. State of U.P. and
another; 2022 (5) SCC 720 by Three Judges Bench, (Authored by Hon.
Surya Kant, J) held as under:-

"12. At the outset, we may note that the High Court has dismissed the
Criminal Revision on the ground of lack of jurisdiction under section 397 of
Cr.P.C. The High Court did not examine the issue in detail to find out
whether the continuation of proceedings will amount to abuse of process of
law in this case. The impugned order cites the decision of this Court in Asian
Resurfacing (supra) wherein it was noted as under:

"Thus, we declare the law to be that order framing charge is not purely an
interlocutory order nor a final order. Jurisdiction of the High Court is not
barred irrespective of the label of a petition, be it under Sections 397 or 482
Cr.P.C.or Article 227 of the Constitution. However, the said jurisdiction is
to be exercised consistent with the legislative policy to ensure expeditious
disposal of a trial without the same being in any manner hampered. Thus
considered, the challenge to an order of charge should be entertained in a
rarest of rare case only to correct a patent error of jurisdiction and not to
re- appreciate the matter."

13. It appears to us that while limiting the scope of a criminal revision to
jurisdictional errors alone, the High Court apparently underappreciated the
Judgment in Asian Resurfacing (supra). We say so at least for two reasons.
First, the material facts in the abovecited case dealt with a challenge to the
charges framed under the Prevention of Corruption Act, 1988 ("POCA").
The cited judgment itself enlightens that not only is POCA a special
legislation, but also contains a specific bar under Section 19 against routine
exercise of revisional jurisdiction. Second, This Court in Asian Resurfacing
(Supra) while expressing concern regarding the need to tackle rampant
pendency and delays in our criminal law system, followed the ratio laid
down in an earlier decision in Madhu Limaye V. State of Maharashtra as
can be seen from the following extract: "

27. Thus, even though in dealing with different situations, seemingly
conflicting observations may have been made while holding that the order
framing charge was interlocutory order and was not liable to be interfered
with under Section 397(2) or even under Section 482 CrPC, the principle
laid down in Madhu Limaye [Madhu Limaye V. State of Maharashtra,
(1977) 4 SCC 551: 1978 SCC (Cri) 10] still holds the field. Order framing
charge may not be held to be purely an interlocutory order and can in a
given situation be interfered with under Section 397(2) CrPC or 482 Cr.P.C.
or Article 227 of the Constitution which is a constitutional provision but the
power of the High Court to interfere with an order framing charge and to
                                                            CRLR No. 589 of 2024
                                 5

grant stay is to be exercised only in a exceptional situation."

14. In Madhu Limaye (supra), this Court authoritatively held:-

"9... Sometimes the revisional jurisdiction of the High Court has also been
resorted to for the same kind of relief by challenging the order taking
cognizance or issuing processes or framing charge on the grounds that the
Court had no jurisdiction to take cognizance and proceed with the trial, that
the issuance of process was wholly illegal or void, or that no charge could
be framed as no offence was made out on the allegations made or the
evidence adduced in Court.

10. ....Even assuming, although we shall presently show that it is not so, that
in such a case an order of the Court taking cognizance or issuing processes
is an interlocutory order, does it stand to reason to say that inherent power
of the High Court cannot be exercises for stopping the criminal proceeding
as early as possible, instead of harassing the accused up to the end? The
answer is obvious that the bar will not operate to prevent the abuse of the
process of the Court and/or to secure the ends of justice. The label of the
petition filed by an aggrieved party is immaterial.

15. The correct position of law as laid down in Madhu Limaye (supra), thus,
is that orders framing charges or refusing discharge are neither
interlocutory nor final in nature and are therefore not affected by the bar of
Section 397 (2) of CrPC. That apart, this Court in the abovecited cases has
unequivocally acknowledged that the High Court is imbued with inherent
jurisdiction to prevent abuse of process or to secure ends of justice having
regard to the facts and circumstance of individual cases. As a caveat it may
be stated that the High Court, while exercising its aforestated jurisdiction
ought to be circumspect. The discretion vested in the High Court is to be
invoked carefully and judiciously for effective and timely administration of
criminal justice system. This Court, nonetheless, does not recommend a
complete hands off approach. Albeit, there should be interference, may be,
in exceptional cases, failing which there is likelihood of serious prejudice to
the rights of a citizen. For example, when the contents of a complaint or the
other purported material on record is a brazen attempt to persecute an
innocent person, it becomes imperative upon the Court to prevent the abuse
of process of law.

16. Further, it is well settled that the trial court while considering the
discharge application is not to act as a mere post office. The Court has to
sift through the evidence in order to find out whether there are sufficient
grounds to try the suspect. The court has to consider the broad probabilities,
total effect of evidence and documents produced and the basic infirmities
appearing in the case and so on. [ Union of India V. Prafulla Kumar
Samal].Likewise, the Court has sufficient discretion to order further
investigation in appropriate cases, if need be. It is also held that discharge is
a valuable right provided to the accused."

20. It is held by the Hon'ble Supreme Court in Dr. Anand Rai Vs. State of
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                                    Madhya Pradesh and another; 2026 INSC 141. In paragraph no. 21 it held
                                    as under:-

                                    "Before parting with the matter, it is observed that at the stage of framing of
                                    charge or considering discharge, the Court is not dealing with an abstract
                                    legal exercise. It is dealing with real people, real anxieties, and the real
                                    weight of criminal prosecution. Judicial responsibility at this stage calls for
                                    care, balance, and an honest engagement with the facts on record. The
                                    power to frame a charge is not meant to be exercise by default or out of
                                    caution alone. When the material placed before the Court, take at the face
                                    value, does not disclose the ingredients of an offence, the law expects the
                                    Court to have the clarity and courage to say so and to keep such a case
                                    aside."

                                    21. In view of all these facts and in view of the law laid down by the Hon'ble
                                    Supreme Court, the impugned order dated 16.11.2023 is liable to be set aside
                                    and same is hereby set aside. Learned trial court is directed to reconsider the
                                    application for discharge afresh in accordance with law.

                                    22. With these observation, the present criminal revision is finally disposed
                                    of.



                                    February 24, 2026
                                    M. Tarik
                                                                                               (Abdul Shahid,J.)




Digitally signed by :-
MOHD TARIK
High Court of Judicature at Allahabad