Rakesh Awasthi and Others vs State of U.P. and Another

Hon''ble Bala Krishna Narayana, J.—Heard Learned Counsel for the applicants as well as learned A.G.A. and perused the material placed on record. The applicant by way of filing present application u/s 482 Cr.P.C. has sought to quash the impugned summoning order dated 6.7.2011 and all consequential proceedings of Case No. 3095 of 2011 (Kamlesh Kumar Versus Rakesh Awasthi and others) pending in the court of A.C.M.M.-II, Kanpur Nagar.

It is contended by Learned Counsel for the applicants that the applicants are auction purchasers and the opposite party No. 2 is the borrower and on account of proceedings initiated under the provisions of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against him for recovery of outstanding amount he moved an application u/s 156(3) Cr.P.C. with certain allegations against the applicants and Senior Branch Manager, Bank of Baroda, Anwarganj Branch, G.T. Road, Kanpur Nagar which was rejected by the learned Magistrate vide order dated 21.1.2011 and thereafter opposite party No. 2 moved another application u/s 156(3) Cr.P.C. on which cognizance was taken by the learned Magistrate and process was issued in routine and arbitrary manner without application of judicial mind. He has further argued that the allegation was substantially the same as was made in the application earlier filed by the opposite party No. 2 u/s 156 (3) Cr.P.C. which was rejected on 21.1.2011.

Thus the present complaint instituted by the opposite party No. 2 is manifestly attended with the mala fides and falls under the category of maliciously instituted prosecution with ulterior motive.

Therefore, continuance of the criminal proceeding against the applicant is nothing but an abuse of process of law which deserves to be set at rest.

Learned A.G.A. has accepted notices on behalf of opposite party No. 1.

Issue notice to respondent No. 2 through R.P.A.D. returnable at an early date.

The opposite party No. 2 may file counter affidavit within three weeks from the date of receipt of notice. Learned A.G.A. may file counter affidavit within the same period.

Rejoinder affidavit may be filed within two weeks'' thereafter.

Connect and list along with Application U/s. 482 No. 331 of 2012 in the week commencing 19th of March, 2012 before appropriate Bench. Till the next date of listing, further proceeding in the aforesaid case shall remain stayed.