IN THE HON’BLE COURT OF MS. SUGANDHA AGARWAL ADDL.

SESSION JUDGE, SAKET COURT NEW DELHI

APPLICATION NO. OF 2024

IN THE MATTER OF:

ABHISHEK SHARMA …. APPLICANT/ACCUSED
VERSUS
THE STATE (NCT OF DELHI) .…
RESPONDENT

FIR No: 109 / 2024

PS: TIGRI
U/S: 376/323/313/
506/509/174 IPC
INDEX
S. NO PARTICULAR PAGE NO
1. Memo of Parties
2. Application Under Section 227 of Cr. P.C. on behalf of
the applicant/alleged accused to discharge him from all
the charges in the captioned case.
3. Copy of FIR bearing no. 109/2024 Dated: 26.05.2024
4. List of documents along with documents

APPLICANT/ALLEGED ACCUSED
THROUGH
COUNSEL/S
HITESH KUMAR, YATIKA CHOUDHARY,
VIKAS SHARMA, SURAJ RAWAT
317, Lawyers Chamber Block,
Saket Court, New Delhi-110017
Mob: 8130668896
Email: [email protected]
 IN THE HON’BLE COURT OF MS. SUGANDHA AGARWAL ADDL.
SESSION JUDGE, SAKET COURT NEW DELHI
APPLICATION NO. OF 2024

IN THE MATTER OF:

ABHISHEK SHARMA …. APPLICANT/ACCUSED
VERSUS
THE STATE (NCT OF DELHI) .…
RESPONDENT
FIR No: 109 / 2024
PS: TIGRI
U/S: 376/323/313/
506/509/174 IPC
MEMO OF PARTIES
1. Abhishek Sharma
S/O Harihar Sharma
R/O H.No. 12 Deoria Sonda Road Tola
Chauraha Deoria uttar Pradesh
PRESENTLY IN J.C
…. Applicant/Alleged Accused

2. The State N.C.T of Delhi

THROUGH
APP FOR THE STATE
…Respondent/s

APPLICANT/ALLEGED ACCUSED
THROUGH
COUNSEL/S
HITESH KUMAR, YATIKA CHOUDHARY,
VIKAS SHARMA, SURAJ RAWAT
317, Lawyers Chamber Block,
Saket Court, New Delhi-110017
Mob: 8130668896
 Email: [email protected]
IN THE HON’BLE COURT OF MS. SUGANDHA AGARWAL ADDL.
SESSION JUDGE, SAKET COURT NEW DELHI
APPLICATION NO. OF 2024

IN THE MATTER OF:

ABHISHEK SHARMA …. APPLICANT/ACCUSED
VERSUS
THE STATE (NCT OF DELHI) .…
RESPONDENT

FIR No: 109 / 2024

PS: TIGRI
U/S: 376/323/313/
506/509/174 IPC

APPLICATION UNDER SECTION 227 OF Cr. PC. ON BEHALF THE

APPLICANT NAMELY ABHISHEK SHARMA, S/O SH. HARIHAR
SHARMAM SEEKING DISCHARGE FROM ALL THE CHARGES IN
CASE FIR NO. 109/2024 PS: TIGRI, U/S 376/323/313/506/509/174 IPC.

MOST RESPECTFULLY SHOWETH:

1. That present Application under section 227 of Cr.PC is being moved on

behalf of Applicant/Accused Namely Abhishek Sharma S/o Sh. Harihar
Sharma R/o EarthFit Club Sonda Purvi Tola, Sondha Deoria, Uttar
Pradesh – 274001 Presently in Judicial Custody. The Aadhar Card of the
Applicant/Accused is annexed herewith as ANNEXURE- A/1 and
Aadhar card of the Prosecutrix is annexed herewith as ANNEXURE-
A/2.

2. That the Applicant/Accused is law abiding citizen of India engaged in to

the business of health fitness and owner and proprietor of EARTHFIT
CLUB GYM.

BREIF CASE OF PROSECUTION:

3. That the Complainant has made a written complaint on 30.01.2024 at
about 3:17 P.M to the SHO Tigri Police Station and the same was
converted into FIR Vide FIR bearing No. 109/2024 dated 30.01.2024
against the Applicant alleged Accused namely Abhishek Sharma.

4. That as per the Prosecution case the alleged Accused namely Abhishek
Sharma was not traceable after the registration of the Fir No.109/2024
P.S TIGRI U/S 376/323/313/506/509/174 IPC.

5. That on Application filed by the prosecution agency, on 04.03.2024

Hon’ble Sh. Sankalp Kapoor Ld. MM South Distt was pleased to issue
Non Bailable warrant (NBW) against the alleged Accused /Applicant.

6. That on Application filed by the Prosecution agencies, vide order Dated

04.06.2024 the alleged Applicant/Accused was declared as Absconder by
the Hon’ble court of Sh. Sankalp Kapoor Ld.MM South, Saket New
Delhi.

7. That on 17.07.2024 the Prosecution agency Delhi Police arrested the

Applicant/ Accused in the present case from the Gardenia Gateway,
Sector-75 NOIDA, Uttar Pradesh and produced him before the Ld.
Magistrate on 18.07.2024 and seeks one day custody thereafter on
19.07.2024 the Applicant/Accused sent the Judicial Custody since then he
is in Custody till date.

8. That the Investigation in the present case has been completed and the
Chargesheet has been filed by the investigating agency in the present case
before the Ld. Magistrate, Saket Court, New Delhi on 12.07.2024 and
subsequently the investigating agency has filed a Supplementary
Chargesheet vide its Supplementary Chargesheet dated 13.09.2024 and
17.10.2024.

ALLEGATIONS IN FIR (VIDE FIR NO.109/24)

i. That it is further alleged that the alleged accused have assaulted the
complainant in Deoria, Lucknow and Gorakhpur and the alleged accused
have taken Rupees 11 lacs out of which 5 lacs online and 6 lacs through
offline transactions and many other valuables items/things. but now the
alleged accused have completely Blocked the complainant and denying
for the marriage.

SUBMISIONS VIS-VIS THE ALLEGATIONS LEVELLED IN THE

FIR

1. That the Applicant/Accused and complainant knows each other since

October 2022. That in the year 2023 That the complainant and the alleged
accused become friends in and frequently use to talk and chat on phone
became good friends.

2. That the complainant and the alleged accused /applicant both of them had
entered into a friendship but it was the complainant who always drag the
friendship into the love relationship, somehow the complainant succussed
and converted the feeling of applicant/alleged accused into relationship
and both of them entered into love relationship. Also, it is pertinent to
mention at the time when both enter into the love relationship the
prosecutrix is around 31 years of age and the Applicant/Accused was of
around 23 years of age accordingly the prosecutrix is much more mature
and elder to the accused.

Parawise reply to the FIR

A. IN FIR PROSECUTRIX STATES:

on 30.01.2024 at about 03:17 pm the complainant has given a written
complaint to SHO P.S TIGRI which was converted into fir vide FIR NO
109/2024 alleging that One Boy namely Abhishek sharma was known to
complainant from October 2022 through a common friend and in 2023
 the complainant was present at A-197 INDIAN APARTMENT DEVLI.
EXTENSION NEW DELHI -110062.

In reply to this para:

That it is failed prima facie case in favour of prosecution that also

prosecution failed to disclosed on what date she has visited Delhi also
for what reason she has visited Delhi and she was present at A-197,
Indian Apartment, Devli Extension, New Delhi-110062, prosecution has
completely failed to prima facie case made in its favour that she has
visited Delhi and was present in the place of Incident.

IN FIR PROSECUTRIX STATES:

A. the accused has made a phone call to the complainant stating that he
along with his friends wants to meet the complainant thereafter the
alleged accused reached at the above mention address i.e A-197 INDIAN
APARTMENT DEVLI EXTENSION NEW DELHI -110062.

In reply to this para: -

That the prosecution prima facie failed to established that when (the date
and time) the applicant/ accused has made call to the prosecutrix to meet
her, it is worth to mention here that it is on the prosecution to complete
the prima facie chain that when the applicant/ accused called her to meet
her which the prosecution has completely failed to established in its
chargesheet,
That it is also worth to mention here that prosecution has failed to made
out its prima facie case against the applicant accused that when (the date
and time) he visited the place of incident to meet the prosecutrix,
That thereafter the applicant/ accused has reached at the abovementioned
address is completely baseless allegation as the applicant / accused never
visited the place of incident, in this regard the prosecution has filed a
 CDR to find out the location of the accused wherein the prosecution has
completely failed to established that the applicant ever visited the place of
incident.
That as per the prosecution applicant has suffered the disclosure
statement wherein also the applicant accused suffered and states that “ I
never visited meet Ms. A in Delhi May, 2023 I am in Deoria”.
That the evidence i.e. CDR filed by the prosecution supported the version
of the applicant accused whereas not supported the case of prosecution
that the applicant has visited the place of incident.

B. IN FIR PROSECUTRIX STATES:

When he came to meet me he bring some KHANE PEENE ki cheezen
thereafter I was in drunkenness he made physical relation with me even
after on my refusal he earlier made promise to marry and made this
promise further.

IN 164 CrPC PROSECTRIX STATES:

That in the statement of prosecutrix recorded under section 164 CrPC
wherein she states differently that:
the accused came to Devli, he wanted to make physical relationship with
me, I refused the same, he did not accept my refusal, he physically
assaulted me, he made relationship with me, then he talked to me about
marriage, then he left.

In reply to these paras:

That the prosecution has again failed to establish its prima facie story and
having contradiction in the statements of prosecutrix,
That the prosecutrix is full grown lady having too much connections and
having roots in the society engaged into the entertainment industry, also
she was BIG BOSS 11 also doing videos and contents on social media
fame contestant having fame and connections, it is worth to mention here
that the prosecutrix is engaged in too many cases and used to appear
before police authorities and various court of laws (FIR No. 31/2023, PS
Bangur Nagar, SC no. 334/2023 before the Hon’ble session Court, at
Mumbai, FIR No. 400/2024 PS Malwani Mumbai, complaint dated
07.08.2018 before PS Bangur Nagar), the moral of the story is that the
prosecutrix is having sufficient means, person/s and having connection
even otherwise she was kept silence on her physical assault, Sexual
Assault and never complained about the same to anyone for a long period
of 9 months. The details of cases are annexed herewith as ANNEXURE-
A/3 (same was verified during discussion on bail application before this
Hon’ble court, by the IO of the case)
That the prosecution has filed a video made by the prosecutrix in June,
2023 made its picture very clear that the there was no promise of
marriage and it is not the case of prosecution that same was extorted
under any threat or fear of injury, or reputation.
During this period of 9 months her manager and prosecutrix herself
engaged into multiple litigation between them and applicant accused such
as complaint made by her manager against the applicant accused and the
complaint made by the applicant accused against the prosecutrix and her
manager also the manager and accused in the month of July, 2023.
That prosecution failed to established its prima facie case that the
applicant had ever visited the place of incident, again failed to
established that he bring any food items to the place of incident and
made physical assault and sexual extortion on the pretext of
marriage.

IN FIR PROSECUTRIX STATES:

C. That during the relationship period in the name of marriage he used to
demand nude pics and videos and whenever I asked for the marriage he
threatened me that he will viral the videos and due to the threats he
asked/ demand/ received the videos and that I wanted to be secure, all
time he physically involved with me in Gorakhpur, Lucknow, Deoria

In reply to this para:

That the prosecution has again failed to established that there is any
demand of pics and videos from the side of accused it is also failed case
of prosecution that the prosecutrix has send those picture and videos to
the accused on his demand, the entire chargesheet is silent upon this
question that at what time date and by what means the prosecutrix has
send the said picture and videos to the accused on his demand, not an iota
of evidence in the case file qua this effect that if the prosecution has
failed to established with any proof of evidence that the said pictures and
videos has demanded and send the same to the accused from prosecutrix
so there is not a question of threatening to viral/ spread those picture and
videos those have no existence.

It is worth to mention here that prosecution agency P.S. AATS has

recover one mobile phone MOTOROLA black color from the accused on
17.07.2024 in personal search same submitted in malkhana PS Saket in
unsealed condition, and after a lapse of huge period i.e. on 20.08.2024 the
investigating officer wake up from her sleep and take it in its possession
through road certificate vide its road certificate no. 152/21/24 same was
still in unsealed condition till 20.08.2024. the road certificate vide RC
No. 152/21/24 dated 20.08.2024 and the GD 0054A dated 20/08/2024 is
stated this facts very clearly;
 That it is very shocking to read the GD No. 0048A dated 06.09.2024 the
said mobile, MOTOROLA Black Colour was still in unsealed condition
till 06.09.2024 same was refused by the FSL as same was in unsealed
condition the prosecution has no serious qua the present case and behave
very casually, the said mobile phone was unsealed in condition from
17.07.2024 till 06.09.2024 and travelled two police station its malkhanas
and number of officer on duty in malkhanas.

That it is worth to mention here that how the prosecution agency careless
in investigation that vide same DD No. 0048 A/ 06.09.2024 as per the
prosecution on 19.07.2024 one mobile phone was recovered through
accused i.e. I PHONE 10X same was in damaged condition accordingly
the FSL refused to take the same, vis a vis on perusal of statement of Ct.
Rohit Bhati recorded under section 161 (who take the accused to
recovered the same ) is narrated the different story having no such version
of damaged I Phone 10 X is in the said statement of Ct. Rohit Bhati dated
19.07.2024.
It is worth to mention here that the investigating agencies are only to
collect the evidence not to create the evidence.

IN FIR PROSECUTRIX STATES:

D. whenever I pressurised him for marriage he told me that family members
will not agree as I am Muslim, Despite knowing about my pregnancy,
Abhishek Sharma postponed the talk of marriage. Abhishek Sharma got
me an abortion He always used to say that he will give birth to a child
next year and will also get married.

In reply to this para :

 That the prosecution again failed to prima facie establish that the
prosecutrix was pregnant and such pregnancy was aborted by the entire
chargesheet is absent qua the pregnancy and its abortion the prosecution
has failed case qua pregnancy as it was a fluke card of prosecution only to
drag the case emotionally and the purpose of prosecutrix will fulfil. That
in the present era the prosecutrix who is graduate 31 years old educated
lady has failed to consult with the doctor at the time of first knowledge of
pregnancy also failed to consult with the doctor when she aborted her
pregnancy.
That there is not a iota of evidence qua pregnancy and its abortion in the
case file the fluke guess to emotionally drag the case is failed guess of
prosecution.

IN FIR PROSECUTRIX STATES:

E. But now Abhishek Sharma has clearly refused to marry. Abhishek
Sharma beat me a lot in Doria, every time there has been a fight,
In reply to this para :

That the prosecution has failed to established that again there is no date
time place in deoria where she was subjected to any assault in deaori, A
self dependant Mumbai mature lady engaged into the film industry has
failed to made any complaint on the same day when she was subjected to
any assault is a strange story of prosecution.

IN FIR PROSECUTRIX STATES:

F. Deoria, Lakhnow, Gorakhpur, everywhere they have taken 11 lakhs from

me, 5 lakhs online, 6 lakhs offline transactions, There are many other
things as well, But at this time Abhishek Sharma has completely blocked
me, he is refusing to marry me and everything.
In reply to this para:

Now the prosecution and the prosecutrix came to the conclusion and on
right track that the prosecutrix issued a credit of Rs. 5 lakhs to the
accused but demanded 11 lakhs which become the bone of contention of
the present case it is correct that the accused was under the debt of 5 lakhs
but the prosecutrix has failed to disclosed the fact that same was returned
by the accused through online mode to the prosecutrix, the non-
disclosure of material fact is made the story doubtful and the prosecutrix
is become sterling witness , the prosecution in very cleaver manner did
not file the bank statement of the prosecutrix till date which shows that
the accused has returned the entire money to the prosecutrix and she
demanded extra 6 lakhs unlawfully.

That the case of prosecution is based on the statement of the sterling

witness i.e. prosecutrix, she has narrated her concocted story to the
prosecution agency only to extort the money more than her debt, it is
worth to mention here that it is admitted by the prosecution that there is a
financial transaction between the prosecutrix and the applicant/ accused
same was converted into the financial dispute it is very clear from the
complaint, FIR statement recorded under section 164 CrPC that she has
given an amount of Rs. 5 lac through transfer and 6 lacs in offline
transaction which complainant and prosecution has completely failed to
bring on record, it is worth to mention here that the prosecutrix has failed
to let the prosecution agencies that the she has received an amount of Rs.
1,99,000/- through UPI payments transfers from/between 08.01.2024 to
12.01.2024, same is annexed herewith as ANNEXURE- A/4.
3. That the non disclosure of correct facts that she has received an amount of
Rs. 1,99,000/- made the prosecutrix as sterling witness and her all
statements are under doubt and need to be verify very minutely at this
stage of framing of charges.

4. That it is worth to mention here that there is also one more non disclosure
of material fact that the prosecutrix has made a complaint before the
Mumbai Police against the applicant/ accused which was converted into
an FIR Vide FIR Bearing No. 109/2024 PS. Tigri same was verified by
the investigating agency at the time of bail application wherein she has
narrated no facts that she was subjected to any physical assault or Rape
under section 376 IPC in place of incident herein Delhi this made the
story of prosecutrix doubfull that she made complainants only to harass
the applicant accused in differ different states and cities only to fullfill her
agenda. The copy of FIR No. 109/2024 is annexed herewith as
ANNEXURE- A/5.

5. That the case of prosecution is based on concocted story of prosecutrix

where she made a complaint vide complaint dated 30.01.2024 for the
offence committed in the year 2023 the date and month is absent in the
COMPLAINT, FIR and the statement recorded under section 164 CrPC
vide statement dated 31.01.2024 very next day of the complaint where in
the date of incident was missing.

6. That in the absence of the date time of the incident is week case of
prosecution and the place of incident is also doubtful in the present case
prosecution has failed to prove its prima facie case against the accused.

7. The allegations are serious in nature as forceful rape followed by the

physical assault, the prosecutrix is full grown lady aged about 31 year old
engaged into the entertainment industry having multiple case before
 police authorities and court of law such as (FIR No. 31/2023, PS Bangur
Nagar, SC no. 334/2023 before the Hon’ble session Court, at Mumbai,
FIR No. 400/2024 PS Malwani Mumbai, complaint dated 07.08.2018
before PS Bangur Nagar, verified from the PS Tigri) also named in cases
in Pune and Goa, failed to complaint against her assault is little
indigestible, she failed to made any complaint before any authority,
police, Court of law made the story of the complainant itself doubtful.

8. That as per the allegation of the prosecution, no date and month

mentioned in the FIR, thereafter in the statement recorded under section
164 CrPC the allegation of said offences was commited in the month of
MAY 2023 (no date was mentioned) the alleged accused came to Delhi
and committed an offence of rape and physical assault on prosecutrix, the
prosecution in support of its case given a notice under section 91 to the
mobile connection service provider i.e. Jio and call CDR of the applicant/
accused the CDR of applicant accused suggested that the applicant.
Accused never visited the place of incident in the month of may, 2023, it
is worth to mention here that best case of prosecution qua presence of
applicant at place of incident is madeout from the CDR only also as per
the CDR and location of the alleged accused never visited the alleged
place of incident /place of occurrence.

9. That prosecution has failed to proof/bring on record that there is exchange

of nude photos or videos and nothing have been placed on record by the
prosecution or the complainant in regard to the same.

10.That the complainant in order to harass and to extort money have filed
number of complaints against the alleged accused and his friends which
are based on false and baseless allegations.
11.That it is clear that there is financial dispute between the complainant and
the alleged accused and because of the same the no of false and frivolous
complaint have been registered in different states.

12.That it is worth to mention here that prosecution has to stand on its on

leg, it is upon the prosecution to prima facie prove that the firstly,
prosecutrix herself has ever visited at the place of incident on the date of
incident secondly, that the accused has telephonically called the
prosecutrix on the date of incident to meet up on the date of incident,
thirdly, that the applicant / accused has visited the place of incident
fourthly, that the accused/ applicant in high dense society of Delhi,
visited the place of incident and committed first physical assault and then
rape upon the prosecutrix and prosecutrix has suffiecient means to
communicate, complaint before the authorities/ police/ court of law but
failed to do has answerless question still alive, fifthly, accused demanded
the nude photos and videos and the prosecutrix has send the same to the
accused in chargesheet there is neither demand of any nude photos and
videos nor any prove of sending the same to the accused all are in air,
sixthly, when prosecutrix came to know about the pregnancy whether she
consulted any doctor qua her pregnancy also on what date the accused
committed the abort her pregnancy without her knowledge whether she
has visited the doctor before or after her abortion, seventhly the
prosecutrix has not provide the details of receiving 1,99,000/- through
UPI till date, eightly, prosecutrix has failed to disclosed the material fact
the she made a complaint before the Mumbai police and same was
converted into an FIR wherein the incident starts from jan, 2023 and ends
in jan, 2024 but the incident at Delhi in may, 2023 is not mentioned in the
said FIR in Mumbai failed to all these relevant question are answerless in
 the chargesheet are abovesaid prima facie has to prove by the prosecution
in which the chargesheet filed by the prosecution is completely silent.

DEFENCE:-

9. Prosecution admitted the facts in its case :

A. That the entire chargesheet is silent about the date and time of incident.
That at column no. 16 i.e. in brief facts of the chargesheet at its para 5 last
line, the prosecution trying to established with a fluke/ guess the date of
incident with 27.05.2024 to 31.05.2024.
B. That as per the prosecution it is admitted fact that there is an
unnreasonable / unnecessary delay of 249 days in filing the complaint.
C. That it is an admitted by the prosecution in its case that the prosecutrix is
at her age of 31 Years (born in 1993) and the accused is at his age of 23
years (born in 2001), there is an age Gap of 8 Years and the prosecutrix is
elder than applicant accused, she is mature enough to understand the
consequences of her own acts.
D. That there is a financial dispute between the prosecutrix and the applicant
alleged accused.

10.Contradictions in the statements of prosectrix:-

That on 30.01.2024 at 3:17 PM the complainant made a written complaint

to the SHO PS Tigri same was converted into an FIR without even
attempt of any preliminary Enquiry on 30.01.2024 at 3:21PM as IO was
busy in investigationthe main contents are जबरन शारीरिक सम्बन्ध
बनाया, मैं नशे मैं थी वह मेरे माना करने पर भी physical
relationship बनाया thereafter the prosecutrix escorted by the W/CT
Dholi to the AIIMS Hospital, Delhi, here also the IO was absent, and the
prosecutrix with her new version gave her statement to the Medical
Practioner/ Doctor and states that he promised for marriage and
 following word sexual intercourse with her multiple times. Thereafter
again the prosecutrix added the contents in her version in the statement
recorded under section 164 CrPC.

11.Place of incident is concocted and the accused never visited the place
of incident :

That most respectfully submitted here that the prosecutrix narrated the
place of incident is A-197, Indian Apartment Devli Extention N.D.-
110062, it is worth to mention here that the applicant alleged accused
never visited the said address in his life also it is the concocted place of
prosecutrix, only to implicate the applicant falsely in the present case
only to register the FIR. The prosecution miserably failed to established
the place of incident in its own case, the CDR Filed by the prosecution
alongwith chargesheet is also not supported the case of prosecution that
the applicant accused never located at the Indian apartment, Devli
Extension.

12.That the scene of crime states that the place of incident is H. No. 1/ 97,
Indian Apartment, Devli Extension ND-62 read with the statements of
the author of the Crime scene Report i.e. statement recorded under
section 161 CrPC of SI AJAY and ASI Om Prakash stated that the place
of incident was A-200 Devli Extension Indian Apartment Tigri road
Delhi.

13.NO MATERIAL QUA NUDE PHOTOS AND VEDIOS IN THE

CHARGESHEET:-

That it is the false case of prosecution qua nude photos and vedios also
prosecution fails to produce any documents qua the said allegation
against the applicant/ alleged accused, it is worth to mention here that the
 prosecutrix has falsely implicate the with the allegations serious in nature
only to implicate him in the present case.

14.CASE OF DEFENCE:-

That the applicant were in friendly relationship with the prosecutrix same
was converted into the mutually consented relationship between both as
both were mature and know the consequences and both were enjoying the
company of each other.

A. That the prosecutrix in order to establish the relationship with the

applicant visit the place of applicant and booked the hotels on her own in
different-different place vis, Deoria, Lucknow, and Gorakhpur, it is worth
to mention here that the prosecutrix only booked hotel and ask the
applicant to join the company of prosecutrix and both were entered into
the relationship mutually without any coercion and undue influence as
well as any misrepresentation.
B. That the prosecutrix is mature lady and rich lady and famous lady
pressurising the applicant with regular physical relationship even the
applicant was busy in his business she never allows the applicant to do his
business whereas she started threatening him with dire consequences if he
fails to join her on her demand.
C. That the above mentioned act of the prosecutrix become worst and more
cruel she stalking the applicant day and night even she never allowed the
applicant during the night hours during his sleep she called repeatedly and
kept on call him numerously, the relationship become the burden on the
applicant.
D. That the applicant has sensed and apprehension with the regular visits of
the prosecutrix at his home town and his place that she wanted to thrown
him in the unethical and immoral field he may going to be pushed into
and asked the prosecutrix with his apprehension then the prosecutrix in
 her threatened voice asked him to do whatever she wants and she never
allows him to refuse of any order of prosecutrix, the applicant under the
threats refused to attend the calls of the prosecutrix in the month of may
2023.
E. That as the applicant avoids the calls of prosecutrix the prosecutrix with
her team of goons reached the place of residence from where he runs his
business and stalking him with her hidden agenda some how the applicant
manage to escape from the clutch of the prosecutrix and made a
complaint vide complaint dated 24.05.2023 to the Superintendent of
Police, Deoria, Uttar Pradesh thereafter the applicant filed a case before
the Concerned Court at Deoria Uttar Pradesh same is pending before the
Ld. MM, Deoria Uttar Pradesh, register vide case no. 10218/2023 /
1112/2023 and pending for adjudication under section punishable
undersection 295/323/363/383/388/392 IPC. The copy of complaint dated
24.05.2023 is annexed herewith as ANNEXURE- A/6 and the certified
copy of case pending before Ld. MM, Doria, UP is annexed herewith as
ANNEXURE- A/7(colly)
F. That it is worth to mention here that above mentioned case filed by the
applicant pending much prior to the present case of prosecution is
pending since 24.05.2023 the exact period of guessing/ fluke of
prosecution which the complainant claims the date of incident herein
Delhi, this act of complainant self-explanatory that the present complaint
is false having no legs in the eye of law.
G. That the applicant filed a number of cases against the illegal acts of the
prosecutrix against her, before the authorities and court of law and
wanted to protected from himself from the prosecutrix but it is the
prosecutrix who use her fame and approached threaten the applicant to
implicate him in the false case also threaten him to send him behind the
bar. The threatening videos played on various news channels in the area
 of Deoria uploaded on the news channels. The threatened videos are
annexed herewith the ANNEXURE- A/8.
H. That the above mentioned videos are self-explanatory that the prosecutrix
at what extend threatened and tortured the applicant to take his steps back
with the marriage with the prosecutrix.
I. That the prosecutrix in order to implicate the applicant in false and
frivolous case send her PA/ Manager to the resident/ work place of the
applicant and implicate him in a false case same was registered vide FIR
No. 0619/2023 against the applicant under section 323/341/354/504 IPC.

J. That on 25.07.2023 the Assistant/P.A of the complainant namely Sunaina

Gaur filed a complaint against the alleged accused and his friend namely
Abhishek Sharma, Veer Yadav, Vikas Shahi and Priyam Tiwari, which
was later converted into fir vide fir no. 619/2024 dated 25.07.2024 ,U/S
323/341/354/504, P.S Kotwali, distt.Deoria which was later settled by
complainant and accused/s on 14/08/2023.

K. That the applicant was harassed with the threatening of the prosecutrix
and same was executed by her in the name of above mentioned FIR No.
0619/2023, thereafter one approached from the prosecutrix that she is the
only person who take him out from the said false case, the promised
imposed was to reunite with the prosecutrix, the applicant refused the
same, she offered friendship which the applicant accepted and entered
into only friendship.
L. That the prosecutrix with her preplanned manner send the money in the
account of the applicant and laying a trap as she knows that I need money
during those days, on asking why she send these money in his account
she said this is her saving, the prosecutrix will take it when she need it,
those days the applicant had started his GYM Business and he need
 money for promotion etc. and he used that money in his Business with the
permission of prosecutrix and promised her to returned the same soon.
M. That the prosecutrix again done the same practice and forced him to make
relationship with her and pressurizing with the same as she done
previously under her debt, the applicant found himself in a worst situation
as he has no money to return total Rs. 1,99,000/- debt of the prosecutrix
and the prosecutrix pressurising him to return the same in a day or two
days which is completely impossible for the applicant and he was in
depressed situation trying to collect the money from the money lenders
and friends on high rate of interest and trying to return the debt of the
prosecutrix and returned an amount of Rs. 1,99,000/- to the prosecutrix
through transfer between 08.01.2024 to 12.01.2024.
N. That the prosecutrix with her all cruel behaviour pressurising the
applicant to return the entire debt otherwise she will implicate him in the
false case which is two edge weapon she takes the revenge as the
applicant refused to make relationship with the prosecutrix and refused to
take her orders also send him behind the bar for no reason. It is worth to
mention here that the applicant found himself at the end of his life or end
of his family reputation in the society he think even to take strict action
against himself for his fault of taking money from a wrong person who
told herself his friend but the old aged parent’s face always he takes his
step back.
O. That finally on non-return the debt completely on 31.01.2024 the
prosecutrix made a complaint here in Delhi where the applicant never met
physically and never made any relationship at the alleged place of
incident with the prosecutrix even no the applicant never visited at this
place, this is the concocted place.
P. That there is only financial dispute between the applicant and the
prosecutrix and the prosecutrix take an advantage of his friendship made
him under her debt which cost an innocent person behind the bar.
Q. That the applicant threaten the applicant and uploaded a video stating that
where he want to be arrested as she know that she can play with the
prosecution agency and she played very smartly and filed the complaint
with having no jurisdiction also there are too much vedios uploaded on
the social media threaten the applicant.
R. That the applicant shocked to know that one more complaint at Mumbai
at PS Malwani vide FIR No. 400/2024 under section 376, 376(2)(n), 377,
406, 504 IPC and 66 A and 67 of IT ACT 2000. with different version
against the applicant alleged accused with different allegation herein the
prosecutrix case is that the applicant committed rape on her first time in
Delhi and thereafter the prosecutrix made a complaint in Mumbai at PS
Malwani that the applicant alleged accused first time committed rape on
her in Mumbai at near Ganesh Mandir, Libra Society Malwani Church,
Malad West this is the intention of the prosecutrix as she threaten the
applicant in her video that from where he wanted to be arrested. The FIR
NO.400 of 2024 is annexed herewith ANNEXURE- A/9.
S. That the prosecutrix herself is committed the offence of false prosecution
against the victim applicant and the applicant/ victim reserve his all
rights to take a proper legal action against the prosecutrix for falsely
implicating him in a wrong cases.
T. That the applicant is an innocent person having family of old aged parents
behind him also bread earner of his family is behind the bar since
17.07.2024 for no offence ever done by him seeking regular/ interim bail
in the present case.

15.PROCEEDINGS OF 82 AGAINST THE APPLICANT :

a) That the investigating agency i.e. Delhi Police filed an application for
request to issue NBW against the alleged accused/ applicant vide
application dated 04.03.2024 seeking NBW against the applicant at para 3
it is clearly states that the investigating agencies has two addresses of the
applicant and they very well aware that the applicant has residing at the
Earthfit GYM Deoria U.P as well as at his parents place i.e. H. No. 12
Deoria Sonda Purwi Tola Chauhara Deoria UP 274001 but he
permanently residing at Earth fit GYM, the prosecutrix also aware with
the same.
b) That the Ld. Magistrate also found two addresses and found that on both
addresses the applicant not found and according issued NBW Vide its
order dated 04.03.2024.
c) That the investigating agency has filed an application with the same
contents with request to initiate the proceedings under section 82 CrPC
against the alleged accused and given the above mentioned addresses as
in corresponding paras along with one more addresses i.e. at NOIDA
from where the accused arrested and one at Bhore Gaon Gopal Ganj
Bihar to the Ld. MM Court of Sh Sankal Kapoor Ld. MM-04, Saket New
Delhi.
d) That Ld. MM Court failed to appreciate the contents of the application
filed by the Delhi Police through IO W/SI Sarita Kumar, PS Tigri, and
process under section 82 CrPC issued against the applicant alleged
accused only at one address, where the prosecution has all knowledge that
he is not residing there since long at H. No. 12, Sonda Purwi Tola
Chauhraha, Deoria, UP and forget about the other addresses viz, Earthfit
GYM Deoria, Uttar Pradesh, also at his Bhore Gaon, Gopal Ganj, Bihar,
also at the place of arrest i.e. NOIDA. Mentioned in the application for
 requesting to intiate the proceeding under section 82 of CrPC filed by the
Delhi Police IO of the present case.
e) That accordingly the publication was done only at one address of the
applicant where admittedly he is not residing since long.
f) That the investigating agency also confused the Ld. MM Court by filing
the misleading contents.
g) That the publication was also done as per the order dated 10.04.2024 and
left the above mentioned addresses where the applicant found present at
the time of arrest, made the picture clear that the Investigating office,
Delhi police never having any intention of communicating the order of
Ld. MM whereas they only wanted to extort the order without even
making any efforts, the applicant having all sensed that the investigating
agency never even visited the place of addresses of the applicant
originally/ ordinarily resides.

13.That besides and without prejudice to the above, Delay in lodging the FIR
is yet another strong plea in favour of the applicant /alleged accused. As
per the allegations, the sexual relationship took place fully substantiates
the version of the Alleged/Accused that he has been falsely implicated
with malafide motive/s.

14.That the allegations of the complainant are nothing but a blatant lies, the
same being totally false, baseless and concocted. the complainant has
levelled the allegations with malafide intentions and ulterior motives, just
to falsely implicate the alleged accused.

15.That the complainant has no proof of these false allegation levelled

against the alleged accused that can corroborate the frivolous allegations
made in FIR. The innocence of the applicant is self -evident from the
content of FIR.
16.That the complainant has filed no. of complaints against the same accused
and the allegations made by the complainant are contradictory in nature.

17.That in the month of June 2023 the complainant herself by her own
freewill made video stating that if the alleged accused marry someone
else, she has no issue. The video is part of chargesheet.

APPLICANT IS SEEKING DISCHARGE ON THE GROUNDS

THAT:

1. LAW ON FRAMING OF CHARGE:

with respect to framing of charge and discharge as provided under
Sections 227 and 228 of Cr.P.C. The same has been reproduced as under
for reference: -
227. Discharge.
If, upon consideration of the record of the case and the documents
submitted therewith, and after hearing the submissions of the accused and
the prosecution in this behalf. the Judge considers that there is not
sufficient ground for proceeding against the accused, he shall discharge
the accused and record his reasons for so doing."

228. Framing of charge.

(1) If, after such consideration and hearing as aforesaid, the Judge is of
opinion that there is ground for presuming that the accused has committed
an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a
charge against the accused and, by order, transfer the case for trial to the
Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate
shall try the offence in accordance with the procedure for the trial of
warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge
against the accused.
(2) Where the Judge frames any charge under clause (b) of sub- section
(1), the charge shall be read and explained to the accused and the accused
shall be asked whether he pleads guilty of the offence charged or claims
to be tried.

i. Judicial Precedents :
12. In Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4, the
Hon‘ble Supreme Court had laid down the following principles to be
considered at the stage of framing of charge/discharge: -
“10. Thus, on a consideration of the authorities mentioned above, the
following principles emerge:
1. That the Judge while considering the question of framing the
charges under Section 227 of the Code has the undoubted power to sift
and weigh the evidence for the limited purpose of finding out whether
or not a prima facie case against the accused has been made out.
2. Where the materials placed before the Court disclose grave suspicion
against the accused which has not been properly explained the Court
will be fully justified in framing a charge and proceeding with the trial.
3. The test to determine a prima facie case would naturally depend
upon the facts of each case and it is difficult to lay down a rule of
universal application. By and large however if two views are equally
possible and the Judge is satisfied that the evidence produced before
him while giving rise to some suspicion but not grave suspicion against
the accused, he will be fully within his right to discharge the accused.
4. That in exercising his jurisdiction under Section 227 of the Code the
Judge which under the present Code is a senior and experienced court
cannot act merely as a Post Office or a mouthpiece of the prosecution,
but has to consider the broad probabilities of the case, the total effect of
the evidence and the documents produced before the Court, any basic
infirmities appearing in the case and so on. This however does not
mean that the Judge should make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was conducting a
trial

13. The Hon‘ble Supreme Court in case of Sajjan Kumar v. CBI

(2010) 9 SCC 368, has considered the powers of Courts in respect of
the framing of charge and discharge and the fact that a prima facie
case would depend on the facts and circumstances of each case. The
relevant principles as enunciated in the said decision read as under:
―21. On consideration of the authorities about the scope of Sections
227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges
under Section 227 Cr.P.C. has the undoubted power to sift and weigh
the evidence for the limited purpose of finding out whether or not a
prima facie case against the accused has been made out. The test to
determine prima facie cases would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave
suspicion against the accused which has not been properly explained,
the court will be fully justified in framing a charge and proceeding with
the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the
prosecution but has to consider the broad probabilities of the case, the
total effect of the evidence and the documents produced before the
court, any basic infirmities, etc. However, at this stage, there cannot be
a roving enquiry into the pros and cons of the matter and weigh the
evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an
opinion that the accused might have committed offence, it can frame
the charge, though for conviction the conclusion is required to be
proved beyond reasonable doubt that the accused has committed the
offence.
(v) At the time of framing of the charges, the probative value of the
material on record cannot be gone into but before framing a charge the
court must apply its judicial mind on the material placed on record and
must be satisfied that the commission of offence by the accused was
possible.
vi) At the stage of Sections 227 and 228, the court is required to
evaluate the material and documents on record with a view to find out
if the facts emerging therefrom taken at their face value disclose the
existence of all the ingredients constituting the alleged offence. For this
limited purpose, sift the evidence as it cannot be expected even at that
initial stage to accept all that the prosecution states as gospel truth even
if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion
only, as distinguished from grave suspicion, the trial Judge will be
empowered to discharge the accused and at this stage, he is not to see
whether the trial will end in conviction or acquittal.

Hon’ble High Court of Delhi In State Vs Sudershan Kumar in Crl

Rev Petition : CRL.REV.P. 772/2018: held on 20.03.2023

Prima Facie View :

14. The very foundation of formation of opinion regarding framing of
charge is as to whether - there is sufficient material on record to prima
facie make out a case of commission of an offence. Therefore, a duty
has been cast on the Trial Court judges to apply their mind carefully to
the material before them to form such opinion.
15. The edifice of an order on charge is appreciation of prima facie
view of the matter. Therefore, it becomes important to address the
pertinent question as to what constitutes a prima facie‘ view qua the
stage of framing charges.
16. Prima facie refers to something that can be determined at first
glance, at first impression, on the surface, or inasmuch as it can be
inferred from the initial disclosure. Black‘s Law Dictionary, 5th Ed.
suggests that the prima facie case would mean that the evidence
brought on record would reasonably allow the conclusion that the
plaintiff seeks. Therefore, ‗prima facie‘ would mean the suggestion
that comes from having the first glance of anything.
17. According to the Oxford Dictionary of Modern Greek, the literal
meaning of prima facie is ‗on/at first viewing‘. It will necessarily mean
that looking at something at its face value and not going into any
intricate or detailed analysis, therefore, the word prima facie when used
in terms of prima facie view as far as consideration of charge is
concerned would mean there being enough material of substance
which will give rise to strong suspicion against the accused and holding
of a view in favour of prosecution.

LAW OF SECTION 375 AND 90 OF INDIAN PENAL CODE, 1860

18. An offence is punishable under Section 376 of the IPC if the
offence of rape is established in terms of Section 375 which sets out the
ingredients of the offence. In the present case, Section 375 along with
Section 90 of the IPC is relevant which is set out below: “375. Rape – A
man is said to commit ―rape‖ if he – under the circumstances falling
under any of the following seven descriptions (a) penetrates his penis,
to any extent, into the vagina, mouth, urethra or anus of a woman or
makes her to do so with him or any other person; or (b) inserts, to any
extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him
or any other person; or (c) manipulates any part of the body of a
woman so as to cause penetration into the vagina, urethra, anus or any
part of body of such woman or makes her to do so with him or any
other person; or (d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other person, under the
circumstances falling under any of the following seven descriptions: -
First. -Against her will. Secondly - Without her consent. Thirdly- With
her consent, when her consent has been obtained by putting her or any
person in whom she is interested, in fear of death or of hurt
Fourthly - With her consent, when the man knows that he is not her
husband and that her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent when, at the time of giving such consent, by
reason of unsoundness of mind or intoxication or the administration by
him personally or through another of any stupefying or unwholesome
substance, she is unable to understand the nature and consequences of
that to which she gives consent. Sixthly -With or without her consent,
when she is under eighteen years of age. Seventhly - When she is
unable to communicate consent. Explanation 1. - For the purposes of
this section, "vagina" shall also include labia majora. Explanation 2. -
Consent means an unequivocal voluntary agreement when the woman
by words, gestures or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as
 consenting to the sexual activity. Exception 1. - A medical procedure or
intervention shall not constitute rape. Exception 2 - Sexual intercourse
or sexual acts by a man with his own wife, the wife not being under
fifteen years of age, is not rape.

―90. Consent known to be given under fear or misconception - A

consent is not such a consent as is intended by any section of this Code,
if the consent is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act knows, or has
reason to believe, that the consent was given in consequence of such
fear or….

i. Judicial Precedents :
In Dr. Dhruvaram Murlidhar Sonar v. State of Maharastra (2019) 18
SCC 191, the Hon‘ble Apex Court had discussed the scheme of
aforesaid provisions as under: ―
15. Section 375 defines the offence of rape and enumerates six
descriptions of the offence. The first clause operates where the women
is in possession of her senses and, therefore, capable of consenting but
the act is done against her will and the second where it is done without
her consent; the third, fourth and fifth when there is consent but it is
not such a consent as excuses the offender, because it is obtained by
putting her, or any person in whom she is interested, in fear of death or
of hurt. The expression ―against her will‖ means that the act must
have been done in spite of the opposition of the woman. An inference
as to consent can be drawn if only based on evidence or probabilities of
the case. ―Consent‖ is also stated to be an act of reason coupled with
deliberation. It denotes an active will in mind of a person to permit the
doing of the act complained of.
16. Section 90 of the IPC defines ―consent‖ known to be given under
fear or misconception:- ―Section 90: Consent known to be given
under fear or misconception.—A consent is not such a consent as it
intended by any section of this Code, if the con- sent is given by a
person under fear of injury, or under a misconception of fact, and if the
person doing the act knows, or has reason to believe, that the consent
was given in consequence of such fear or misconception
17. Thus, Section 90 though does not define ―consent‖, but describes
what is not ―consent‖. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. If the consent is given
by the complainant under misconception of fact, it is vitiated. Consent
for the purpose of Section 375 requires voluntary participation not only
after the exercise of intelligence based on the knowledge of the
significance and moral quality of the act, but also after having fully
exercised the choice between resistance and assent. Whether there was
any consent or not is to be ascertained only on a careful study of all
relevant circumstances.

In the case of Kaini Rajan v. State of Kerala (2013) 9 SCC 113, the
Hon‘ble Supreme Court, while explaining the essentials and
parameters of the offence of rape, had observed as under: ―

Section 375 IPC defines the expression ―rape, which indicates that the
first clause operates, where the woman is in possession of her senses,
and therefore, capable of consenting but the act is done against her
will; and second, where it is done without her consent; the third, fourth
and fifth, when there is consent, but it is not such a consent as excuses
the offender, because it is obtained by putting her on any person in
whom she is interested in fear of death or of hurt. The expression
 ―against her will‖ means that the act must have been done in spite of
the opposition of the woman. An inference as to consent can be drawn
if only based on evidence or probabilities of the case. ―Consent‖ is also
stated to be an act of reason coupled with deliberation. It denotes an
active will in the mind of a person to permit the doing of an act
complained of. Section 90 IPC refers to the expression ―consent.
Section 90, though, does not define ―consent‖, but describes what is
not consent. ―Consent‖, for the purpose of Section 375, requires
voluntary participation not only after the exercise of intelligence based
on the knowledge of the significance and moral quality of the act but
after having fully exercised the choice between resistance and assent.
Whether there was consent or not, is to be ascertained only on a careful
study of all relevant circumstances relied upon State of H.P. v. Mango
Ram, (2000) 7 SCC 224.

In the present case, to establish whether the consent was obtained by fear
of defamation which primarily arose due to the alleged photographs and
video being in the possession of the accused, we takes note of the
following crucial facts:

ii. As per the case of prosecution There was continuous sexual

relationship between the prosecutrix and accused for 12 months,
while both of them were matured, prosecutrix is of age of 31 and the
applicant at his age of 24.
iii. The relationship between the parties continued when both the parties
are adults and both were working i.e. the prosecutrix was working in
entertainment industry youtuber, and the accused was businessman.
iv. There being no evidence of existence of any inappropriate
photograph, video or threat apparent from the record or any mobile
phone in which such photographs or videos could have been
recorded.
v. There being no evidence to support any allegation of being
intoxicating substance in broad day light in a heavily populated area.
vi. It is not the case of the prosecutrix that she lacked capacity to inform
the authorities or even her friends and family also not even
infortmend the owner of the said place of Incedent about alleged
sexual exploitation by the accused
vii. The prosecutrix was not confined and had remained free throughout
to live with her friend, visiting any place, attending to her work, and
even failed to visiting the doctor for the purpose of being physically
assault without there being any threat or fear from the accused.

PRAYER

In view of the aforesaid submissions, it is, therefore, most humbly prayed

that this Hon’ble Court may be pleased to: -

A. Applicant/ alleged accused namely Abhishek Sharma may kindly be

discharge from all charges allegation in case FIR No. 109/2024 under
section 376/323/313/506/509/174 IPC of Indian Penal Code registered at
Police Station: TIGRI

B. Any other relief in favor of the applicant as deem fit by this Hon’ble
Court in the interest of justice.

APPLICANT/ALLEGED ACCUSED
THROUGH
 COUNSEL/S
HITESH KUMAR, YATIKA CHOUDHARY,
VIKAS SHARMA, SURAJ RAWAT
317, Lawyers Chamber Block,
Saket Court, New Delhi-110017
Mob: 8130668896
Email: [email protected]