# 974 INDIAN LAW REPORTS ALLAHABAD SERIES [2010 others v. Umadevi(3) and others

- **Citation:** (2010) 3 ILRA 974
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-26
- **Case number:** Criminal Misc. Application No. 12014 of 1987
- **Bench:** S.K. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/974-indian-law-reports-allahabad-series-2010-others-v-umadevi-3-and-others-41762
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 482summoning order by magistrate-offence
under Section 415, 417,418, 420 I.P.C.-
allegations
disclose
breech
of
agreement-not constitute any criminal
charges-but
purely
civil
nature-held
complaint can not proceed.

Held: Para 9 and 10

A mere breach of promise does not
constitute any criminal charge. There is
nothing in the entire complaint to show
that the intention of the applicants were
dishonest from the very beginning. If
they changed their attitude later on, the
3 All] Dharmendra Singh and others V Sant Saran Gupta and another
975
same cannot constitute the criminal
charges levelled against them.

In my opinion, the dispute is of civil
nature and as such the complaint can not
proceed.
Case law discussed:
(2009) 6 SCC 77

## Text

974 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
others
Vs.
Umadevi(3)
and
others
reported in 2006 (4) SCC 1", "National
Fertilizers Ltd. and others Vs. Somvir
Singh reported in 2006(5) SCC 493, and
"Mohd. Sartaj and another Vs. State of
U.P. and others reported in 2006 (1) JT
331 it has been laid down in para 19 as
follows:-

19. If the essential educational
qualification for recruitment to a post is
not satisfied, ordinarily the same cannot
be condoned. Such an act cannot be
ratified.
An
appointment
which
is
contrary to the statute/statutory rules
would be void in law. An illegality
cannot
be
regularized,
particularly,
when the statute in no unmistakable term
says so. Only an irregularity can be (See
Secretary, State of Karnataka and others
v. Umadevi (3) and others, ((2006) 4
SCC 1) National Fertilizers Ltd. And
Ors. v. Somvir Singh, ((2006) 5 SCC
493) and Post Master General, Kolkata
and Ors. v. Tutu Das (Dutta), ((2007) 5
SCC 317))."

24. The judgment in the case of
Naresh Chand (supra) lay down any
binding proposition of law as is clear
from the opening sentence of para 9
quoted above. The direction has been
issued in the facts of the case. Such
exercise of jurisdiction is referable to
Article 142 of the Constitution of India.

25. The law as explained by the
Division Bench of this Court in the case
of Dr. Prabhu Narain Saxena (supra)
stand
impliedly
overruled
by
the
judgment of the Apex Court in the case
of Proamod Kumar (supra).

26. The judgment in the case of
H.C. Puttaswamy deals with the powers
of the Hon'ble Chief Justice under
Article 229 of the Constitution of India
and is clearly distinguishable with the
facts of the case in hand.

27. The writ petition is dismissed.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2010

BEFORE
THE HON'BLE S.K. TRIPATHI, J.

Criminal Misc. Application No. 12014 of 1987

Dharmendra Singh and others

 ...Petitioner
Versus
Sant Saran Gupta and another

 ...Respondents

Counsel for the Petitioner:
Sri V.S.Singh

Counsel for the Respondents:
Sri G.S.Dwivedi
Sri A.G.A.
Sri C.P.Mishra

Code of Criminal Procedure-Section 482summoning order by magistrate-offence
under Section 415, 417,418, 420 I.P.C.-
allegations
disclose
breech
of
agreement-not constitute any criminal
charges-but
purely
civil
nature-held
complaint can not proceed.

Held: Para 9 and 10

A mere breach of promise does not
constitute any criminal charge. There is
nothing in the entire complaint to show
that the intention of the applicants were
dishonest from the very beginning. If
they changed their attitude later on, the
3 All] Dharmendra Singh and others V Sant Saran Gupta and another
975
same cannot constitute the criminal
charges levelled against them.

In my opinion, the dispute is of civil
nature and as such the complaint can not
proceed.
Case law discussed:
(2009) 6 SCC 77

(Delivered by Hon'ble S.K. Tripathi, J.)

1. Heard learned counsel for the
applicants and the learned A.G.A. for the
respondent no. 2 and perused the record. None
is present for the respondent no. 1.

2. This is an application under section
482 Cr.P.C. for quashing the proceedings of
criminal complaint case no. 373/IX-1987
under sections 417/420 I.P.C., Sant Saran
Gupta Vs. Dharmendra Singh and others
pending in the court of Judicial Magistrate-Ist
Class, Karvi, District Banda.

3. The learned counsel for the applicants
submitted that according to the allegations
made in the complaint no criminal charge is
made out and the dispute is of civil nature.
The respondent no. 1 had given the dealership
on the basis of an agreement and if any breach
of the agreement was committed, the same
does not constitute the offences under sections
415, 417, 418, 420 and 120-B I.P.C.

4. It appears that the respondent no. 1,
Sant Saran Gupta is the proprietor of Sant
Agencies, Ganesh Bazar, Karvi. The applicant
nos. 1 and 3 are the proprietor of the
Hindustan Sales Corporation, Chandigarh and
the applicant no. 2 is the Manager of the
Hindustan Sales Corporation. An agreement
between the applicants and the respondent no.
1 took place whereby the applicants agreed to
appoint the respondent no. 1 as their dealer for
supplying gas and the dealership continued for
certain period and when the applicants
stopped the supplies to the respondent no. 1,
he contacted the applicants and any how get
executed a fresh agreement and the dealership
thereafter continued on the basis of the fresh
agreement.
But
again,
the
applicants
committed breach of the agreement and failed
to supply despite taking security money of Rs.
10,000/-. In this way, the applicants
committed forgery and cheated the respondent
no. 1.

5. The learned counsel for the applicants
submitted that according to the allegations
made in the complaint, only a dispute of civil
nature is made out, therefore, the complaint
was not maintainable. If the applicants, in
pursuance of the agreement, made supplies to
the respondent no. 1 for certain period and
later on stopped the supplies, the intention of
the applicants cannot said to have been
dishonest at the beginning of the contract.
Therefore, the proceedings of the complaint
case are liable to be quashed.

Section 415 IPC defines cheating, which
reads:

"415. Cheating.-Whoever, by deceiving
any person, fraudulently or dishonestly
induces the person so deceived to deliver any
property to any person, or to consent that any
person
shall
retain
any
property,
or
intentionally induces the person so deceived to
do or omit to do anything which he would not
do or omit if he were not so deceived, and
which act or omission causes or is likely to
cause damage or harm to that person in body,
mind, reputation or property, is said to 'cheat'."

6. An offence of cheating, therefore,
is not made out unless the following
ingredients exist:

(i) deception of a person either by
making
a
false
or
misleading
976 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
representation or by other action or
omission;

(ii)
fraudulently
or
dishonestly
inducing any person to deliver any
property; or to consent that any person
shall retain any property and finally
intentionally inducing that person to do or
omit to do anything which he would not
do or omit.

7. In the case of V.Y. Jose and
another (supra), the Apex Court has held
that for the purpose of constituting an
offence of cheating the complainant is
required to show that the accused had
fraudulent or dishonest intention at the
time of making promise or representation.
Even in a case where allegations are made
in regard to failure on the part of the
accused to keep his promise, in the
absence of a culpable intention at the time
of making initial promise, no offence
under section 420 IPC can be said to have
been made out. In para 21 and 28 the
Apex Court further observed:

"21. There exists a distinction
between pure contractual dispute of a civil
nature and an offence of cheating.
Although breach of contract per se would
not come in the way of initiation of a
criminal proceeding, there can not be any
doubt whatsoever that in the absence of
the averments made in the complaint
petition where from the ingredients of an
offence can be found out, the court should
not hesitate to exercise its jurisdiction
under section 482 of the Code of Criminal
Procedure.

...........

28. A matter which essentially
involves dispute of a civil nature should
not be allowed to be the subject matter of
a criminal offence, the latter being not a
short cut of executing a decree which is
non-existent. The superior courts, with a
view
to
maintain
purity
in
the
administration of justice, should not allow
abuse of the process of court. It has a duty
in terms of section 483 of the Code of
Criminal Procedure to supervise the
functioning of the trial courts."

8. A similar principle has been
propounded in the case of S.V.L. Murthy
vs. State represented by CBI, Hyderabad
(2009) 6 SCC 77. In that case the Apex
Court has held that one of the ingredients
of cheating, as defined in section 415 IPC,
is existence of an intention to cheat at the
time of making initial promise or
existence thereof from the very beginning
of formation of contract.

9. A mere breach of promise does
not constitute any criminal charge. There
is nothing in the entire complaint to show
that the intention of the applicants were
dishonest from the very beginning. If they
changed their attitude later on, the same
cannot constitute the criminal charges
levelled against them.

10. In my opinion, the dispute is of
civil nature and as such the complaint can
not proceed.

11. The application is allowed.
Consequently, the summoning order as
well as the proceedings of the aforesaid
complaint case are quashed.
---------
3 All] Raj Kumar V. State of U.P. and another
977
ORIGINAL JURISDICTION
CIVIL SIDE'
DATED ALLAHABAD 31.08.2010

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 13684 of 2010

Raj Kumar

 ...Petitioner
Versus
State Of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri Vinod Kr. Agrawal

Counsel for the Respondent:
Sri Y.S.Bohra (A.C.S.C.)
C.S.C

Constitution of India Art. 226-Alternative
Remedy-Petition seeking direction for
payment of Rs.502713/-towards work
done by contractor-during pendency of
suit contractor died-Executive Engineer
required
succession
certificate-after
paying
court
fee
of
Rs.30,000/-on
production
of
succession
certificatepayment
of
Rs.
60,000/
made-for
remaining amount plea of demand of
necessary
fund-not
available-entire
amount be paid within two months with
8% interest-in Case of default 10%
interest

Held: Para 13

We are of the view that the performance
of the duty of the State and its officials
must be above board. Here in this case,
we find that the respondents are taking
a casual stand in not releasing the
payment to the petitioner whose father
has performed his part of contract. The
petitioner
has
also
invested
about
30,000/- towards court fees in getting
the
succession
certificate
and
after
submitting the succession certificate
only a meagre amount of Rs.60,000/-
(Rs.65,788/- according to respondents)
has been released in favour of the
petitioner. The Apex Court in numerous
cases has held that alternative remedy is
not absolute bar and in appropriate
cases the petitions can be entertained
under Article 226 of the Constitution of
India. The reference may be given to the
Apex
Court
decision
2003
SC
107
Harbanslal
Sahnia
and
another
Vs.
Indian Oil Corporation and others and
2005 8 SCC 242 Sanjana M Wig (Ms.) Vs.
Hindustan Petroleum Corporation Ltd.
This Court also in the Writ Petition No.
14821 of 2008 Vijay Kumar Yadav Vs.
State of U.P. and others decided on
13.7.2009 Writ Petition No. 40595 of
2004 Messrs. Anup Agencies and another
Vs. State of U.P. and others decided on
14.12.2005 has taken the same view.
Case law discussed:
2003 SC 107, 2005 8 SCC 242, W.P. No.
14821 of 2008,W.P. No. 40595 of 2004

(Delivered by Hon'ble V.M. Sahai, J.)

1. The petitioner happens to be son of
late Jai Deo Prasad who was contractor and
completed certain work under contract with
the respondents. The father of the petitioner
was not paid the entire amount of the
contract and an amount of Rs. 5,02,713/-
remain
due
against
the
respondents.
Pending that payment the petitioner's father
died. After death of the father, the petitioner
moved an application before the respondent
no. 2 for the payment which was to be
released in favour of his father. After receipt
of the application of the petitioner, the
Executive Engineer has required the
succession certificate. The petitioner has
filed a case before the Civil Judge for
granting the succession certificate for which
an amount of Rs. 30,588/- was paid towards
court fee. On 29.3.2007 the succession
certificate was issued by the Civil Judge,
(Senior Division), Mathura in favour of the
petitioner. After receiving the same, the
petitioner has submitted the succession
certificate before the respondent no. 2 on