# Ajay Kumar Baghel v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-22
- **Case number:** Application U/S 482 No. 1424 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-baghel-v-state-of-u-p-anr-51414
- **Pages:** 11

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 482 - Indian Penal Code,
1860 - Sections 405, 406, 467, 468, 471,
503 & 506 - Negotiable Instruments Act,
1881 - Sections 138, 142, 142(1), 14-A,
18 & 18-A - Application U/s 482 Cr.P.C. - for
quashing the charge-sheet as well as the entire
criminal proceeding - offence of criminal breach
of trust and cheating - FIR - Charge-sheet -
summoning order - trial initiated - Court finds
that - (i) the applicant and complainant shared
business
relations,
and
the
monetary
transactions were part of their commercial
dealings - (ii) Allegations in the FIR failed to
disclose any prima facie offence under the cited
IPC sections - no evidence of dishonest
intention, no written agreement for sale of
property, and no material to support forgery -
(iii) Cheque issued by the applicant did not
correlate
with
the
alleged
payment
and
appeared to be part of a business transaction -
(iv) complainant did not avail remedy under
Section 138 of the Negotiable Instruments Act -
Court held that, court's inherent powers under
Section 482 Cr.P.C. are to be exercised sparingly
and only to prevent abuse of process or secure
the ends of justice - neither condition was met
- The complaint was found to be a misuse of
criminal law to settle a civil dispute and avoid
payment of court fees - complaint held to be
malicious and coercive - Accordingly, the
charge-sheet, summoning order, and entire
criminal proceedings were quashed, being a
gross abuse of legal process and falling under
2 All. Ajay Kumar Baghel Vs. State of U.P. & Anr.
229
category (6) of Bhajan Lal guidelines -
Application is allowed.
(Para - 25, 27, 29, 30, 33, 36, 37)

Application Allowed. (E-11)

List of referred Cases: -

## Text

228 INDIAN LAW REPORTS ALLAHABAD SERIES
करिे हुए माििीय उच्चिम न्यायालय िे यह कहा नक मात्र दीवािी
प्रकृनि का वाद लंनबि होिा यह िय करिे के नलए संगि िहीं है नक
अनभयुक्त के नवरुद्ध कनथि आरोपों के नवचारण का मामला बििा है
या िहीं। इस उद्देश्य से मात्र यह देखा जािा चानहए नक क्या नशकायि
/ प्रथम सूचिा ररपोटा में नकये गये कथिों से आरोप का होिा प्रथम
दृष्टया प्रिीि होिा है। इस स्िर पर उच्च न्यायालय को यह भी िहीं
देखिा चानहए नक क्या गवाहों के बयािों में कुछ नवरोिाभाष हैं।

9. प्रीबत सरााफ बनाम राज्य (एन.सी.टी ऑफ
बदल्ली), (2021) 16 SCC 142 में माििीय उच्चिम
न्यायालय िे प्रनिपानदि नकया नक यह नवनि का एक सुस्थानपि
नसद्धान्ि है नक िारा 482 दं०प्र०सं० के अंिगाि निनहि शनक्तयों का
प्रयोग करिे समय नशकायिकिाा द्वारा नकये गये कथिों का परीक्षण
करिा चानहए िथा इस स्िर पर उच्च न्यायालय को लगाये गये
आरोपों की सत्यिा का परीक्षण िहीं करिा चानहए। नशकायि /
प्रथम सूचिा ररपोटा / आरोप-पत्र िथा इसके समथाि में प्रस्िुि
अनभलेखीय साक्ष्य से यनद अपराि होिा प्रिीि हो िो आपरानिक
प्रनिया को निरस्ि िहीं नकया जा सकिा है। उच्च न्यायालय की
अन्िनिानहि शनक्तयां असािारण शनक्तयां हैं, नजन्हें अत्यन्ि साविािी
के साथ मात्र नवरलिम मामलों में ही प्रयोग नकया जािा चानहए। यनद
नकये गये कथिों के आिार पर नशकायिकिाा को कुछ दीवािी
प्रकृनि के अिुिोष भी उपलब्ि हैं िो मात्र इस कारण से आपरानिक
कायावाही स्थनगि िहीं की जा सकिी है।

10. जब प्रस्िुि मामले को प्रीनि सरााफ के उपरोक्त निणाय
के आलोक में देखा जाय िो यह स्पष्ट होगा नक पररवाद के अिुसार
प्राथी िे पररवादी की अिुपनस्थनि में उसके घरमें घुसकर िाली का
पाइप िोडा और छि को क्षनिग्रस्ि नकया और पररवादी के प्रबंिक
द्वारा नवरोि नकये जािे पर उसके साथ अभद्रिा की िथा उसिे प्राथी
को गानलयां दी एवं िमकी दी। उपरोक्त कथि प्राथी के द्वारा आरोप
नकया जािा प्रथम दृष्टया दशाािे हैं िथा ऐसी पररनस्थनि में मात्र इस
आिार पर, नक पक्षों के मध्य दीवािी प्रकृनि के वाद लंनबि हैं,
कनथि अपरािों के नलए प्राथी के नवरुद्ध नवचारण को प्रारंनभक स्िर
पर निरस्ि िहीं नकया जा सकिा।

11. उपरोक्त समीक्षा के आलोक में प्राथािा-पत्र बलहीि है
और िद्नुसार बनरस्त नकया जािा है।
---------
(2024) 2 ILRA 228
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 1424 of 2024

Ajay Kumar Baghel ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sant Vijay Singh, Ratnesh Kumar Rawat

Counsel for the Opposite Parties:
G.A., Saurabh Mishra

Criminal Law - Criminal Procedure Code,
1973 - Sections 482 - Indian Penal Code,
1860 - Sections 405, 406, 467, 468, 471,
503 & 506 - Negotiable Instruments Act,
1881 - Sections 138, 142, 142(1), 14-A,
18 & 18-A - Application U/s 482 Cr.P.C. - for
quashing the charge-sheet as well as the entire
criminal proceeding - offence of criminal breach
of trust and cheating - FIR - Charge-sheet -
summoning order - trial initiated - Court finds
that - (i) the applicant and complainant shared
business
relations,
and
the
monetary
transactions were part of their commercial
dealings - (ii) Allegations in the FIR failed to
disclose any prima facie offence under the cited
IPC sections - no evidence of dishonest
intention, no written agreement for sale of
property, and no material to support forgery -
(iii) Cheque issued by the applicant did not
correlate
with
the
alleged
payment
and
appeared to be part of a business transaction -
(iv) complainant did not avail remedy under
Section 138 of the Negotiable Instruments Act -
Court held that, court's inherent powers under
Section 482 Cr.P.C. are to be exercised sparingly
and only to prevent abuse of process or secure
the ends of justice - neither condition was met
- The complaint was found to be a misuse of
criminal law to settle a civil dispute and avoid
payment of court fees - complaint held to be
malicious and coercive - Accordingly, the
charge-sheet, summoning order, and entire
criminal proceedings were quashed, being a
gross abuse of legal process and falling under
2 All. Ajay Kumar Baghel Vs. State of U.P. & Anr.
229
category (6) of Bhajan Lal guidelines -
Application is allowed.
(Para - 25, 27, 29, 30, 33, 36, 37)

Application Allowed. (E-11)

List of referred Cases: -

1. St. of Har. Vs Bhajan Lal, 1992 Supp (1) SCC
335,

2. Som Mittal (2) Vs St. of Karn., (2008) 3 SCC
574,

3. Sheila Sebastian Vs R. Jawaharaj, (2018) 7
SCC 581,

4. G. Sagar Suri Vs St. of U.P., (2000) 2 SCC
636,

5. Indian Oil Corpn. Vs NEPC India Ltd., (2006)
6 SCC 736,

(Delivered by Hon'ble Subhash Vidyarthi,
J.)

1. Heard Sri Ratnesh Kumar Rawat
Advocate, the learned counsel for the
applicant, Sri Anant Pratap Singh, the
learned AGA for the State, Sri Saurabh
Mishra, the learned counsel for the opposite
party no. 2 and perused the record.

2. By means of the instant application
filed under Section 482 Cr.P.C., the applicant
has sought quashing of Charge Sheet No. 1 of
2022 dated 30.09.2022 for offences under
Sections 420, 467, 468, 471, 406 & 506 I.P.C.
submitted in furtherance of F.I.R. No. 440 of
2022, Police Station Sushant Golf City,
Lucknow, summoning order dated 02.12.2022
as well as the entire criminal proceedings of
Criminal Case No. 117643 of 2022, State v.
Ajay Baghel, pending before the Judicial
Magistrate-III, Lucknow.

3. The opposite party no. 2 has
filed a counter affidavit which is taken on
record.

4. The learned AGA states that the
dispute is between the opposite party no. 2
and the applicant, which is private in nature
and as the opposite party no. 2 has filed a
counter affidavit, the State does not
propose to file a separate counter affidavit.
With the consent of all the learned counsel
appearing for the respective parties, the
Court proceeds to decide the application
finally.

5. The opposite party no. 2 lodged
FIR No. 440 of 2022 on 07.09.2022
alleging that the complainant is the
proprietor of a firm 'M/s Utkarsh Vipul
Transport Company' and is engaged in the
business of supply of road and building
material through his firm. In April, 2018,
the complainant came into contact with the
applicant, who projected himself to be the
owner of a flat situated in Media Enclave,
Sushant Golf City, Police Station Sushant
Golf City, Lucknow and told its price to be
Rs.
60,00,000/-.
The
complainant
transferred Rs. 93,000/- to the firm of the
applicant through IMPS on 28.06.2018. Till
May, 2019, the complainant had transferred
Rs. 17,00,000/- to the bank account of the
applicant. The complainant claims to have
paid a further amount of Rs. 12,00,000/- in
cash after borrowing the same from some
friends. When the complainant demanded
documents of the flat on numerous times,
the applicant provided a title deed of the
flat, which turned out to be fake and the
complainant came to know that he had been
cheated.

6. The F.I.R. further states that when
the complainant again demanded refund of
his money, the applicant went to his house,
gave him an account payee cheque for Rs.
11,71,373/- and he destroyed the fake title
deed which was lying on a table in the
complainant's house. The cheque presented
230 INDIAN LAW REPORTS ALLAHABAD SERIES
by the complainant was returned by the
bank unpaid on 10.07.2022. When the
complainant informed this fact to the
applicant through his two mobile numbers
and demanded his money, the applicant
declined to pay money to him and
threatened to kill him. The FIR further
alleges that the applicant is a habitual
offender and a gangster, against whom
more than one and a half dozen cases are
registered in various police stations.

7. After investigation, a charge sheet
was submitted on 30.09.2022 alleging
commission of offences under Sections
420, 467, 468, 471, 406 & 506 IPC and the
trial court took cognizance of the offences
on 02.12.2022 and summoned the applicant
to face the trial.

8. It has been stated in the application
that there were business relations between
the applicant and the complainant and the
monetary transactions between the parties
were made in relation to their business
dealings. No agreement for sale of any flat
has been executed by the applicant in
favour of the complainant and no money
was paid by the complainant to the
applicant for purchasing any immovable
property.

9. The complainant has stated in the
counter affidavit that the applicant is a
hardened criminal and has a long criminal
history, including a case under the U. P.
Gangster
and
Anti
Social
Activities
(Prevention) Act, 1986. He has obtained
bail in the present concealing his criminal
history. It has also been stated that the
defence set up by the applicant in his
application under Section 482 Cr.P.C.
cannot be taken into consideration by this
Court at this stage.

10. In the case of State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335, the
Hon'ble Supreme Court considered the law
laid down in various precedents regarding
scope of interference under Section 482
Cr.P.C. and summarized the law in the
following words:-

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise to
secure the ends of justice, though it may not
be possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.

(1) Where the allegations made in
the
first
information
report
or
the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of
2 All. Ajay Kumar Baghel Vs. State of U.P. & Anr.
231
the same do not disclose the commission
of any offence and make out a case
against the accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.

(6) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or
where
the
proceeding
is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him due
to private and personal grudge."
(Emphasis supplied)

11. Immediately after mentioning the
aforesaid categories, the Hon'ble Supreme
Court has cautioned that the power has to
be exercised in rarest of rare cases by
adding that:-

"103. We also give a note of
caution to the effect that the power of
quashing a criminal proceeding should be
exercised
very
sparingly
and
with
circumspection and that too in the rarest of
rare cases; that the court will not be
justified in embarking upon an enquiry as
to the reliability or genuineness or
otherwise of the allegations made in the
FIR or the complaint and that the
extraordinary or inherent powers do not
confer an arbitrary jurisdiction on the
court to act according to its whim or
caprice."

12. The expression "rarest of rare
cases" used by the Hon'ble Supreme Court
in Bhajan Lal (Supra) has been explained
in Som Mittal (2) v. State of Karnataka,
(2008) 3 SCC 574 in the following
words:-

"9. When the words "rarest of
rare cases" are used after the words
"sparingly and with circumspection" while
describing the scope of Section 482, those
words merely emphasise and reiterate what
is intended to be conveyed by the words
"sparingly and with circumspection". They
mean that the power under Section 482 to
quash proceedings should not be used
mechanically or routinely, but with care
and caution, only when a clear case for
quashing is made out and failure to
interfere would lead to a miscarriage of
justice. The expression "rarest of rare
cases" is not used in the sense in which it is
used with reference to punishment for
offences under Section302IPC, but to
emphasise
that
the
power
under
Section482CrPCto quash the FIR or
criminal proceedings should be used
sparingly and with circumspection."
(Emphasis supplied)

13. When we examine the facts of the
case in light of the law laid down by the
Hon'ble Supreme Court in the aforesaid
cases, what appears is that the FIR alleges
232 INDIAN LAW REPORTS ALLAHABAD SERIES
that the applicant is the proprietor of a firm,
which had business relations with the firm
of the applicant, although the name of the
applicant's firm has not been disclosed in
the FIR. The complainant claims to have
entered into an agreement to purchase a flat
of the applicant situated in Media Enclave,
Sushant Golf City but neither the flat
number nor any other particulars have been
disclosed in the FIR so as to ascertain the
identity of the Flat that was agreed to be
sold to the complainant. In response to a
query put by the Court, the learned counsel
for the applicant admitted that no registered
agreement had been executed between the
parties for purchasing the flat and the
reason for non execution of the agreement,
as per the learned counsel for the applicant,
was
that
since
title had
not
been
transferred, therefore, registered agreement
was not executed.

14. The complainant claims that he
had paid Rs. 93,000/- through IMPS by
transferring the amount to the applicant's
firm on 28.06.2018 and till May, 2019, he
had transferred Rs. 17,00,000/- to the bank
account of the applicant. A further sum of
Rs. 12,00,000/- is said to have been paid in
cash after borrowing the same from some
friends. The FIR does not disclose the date
of making cash payment of such a huge
amount or the names of the complainant's
friends who had lent him the money.

15. The complainant has alleged in
the F.I.R. that the applicant had provided a
title deed of the flat, which turned out to be
fake and when the complainant had gone to
the applicant's house to refund Rs.
11,71,373/- through a cheque, the applicant
had destroyed the title deed that was given
by him to the complainant. Therefore, as
per the claim of the complainant himself,
he does not have the alleged fake copy of
the title deed that had been provided by the
applicant.

16.

On
the
aforesaid
factual
allegations, the complainant alleges that the
applicant has committed offences of
criminal breach of trust and cheating an
dishonestly inducing delivery of property,
forgery of valuable security for delivery of
property for the purpose of cheating and
using as genuine a forged document. It
would be appropriate to have a look as the
definitions of the offences, which are being
reproduced below: -

"405. Criminal breach of trust.-
Whoever, being in any manner entrusted
with property, or with any dominion over
property, dishonestly misappropriates or
converts to his own use that property, or
dishonestly uses or disposes of that
property in violation of any direction of law
prescribing the mode in which such trust is
to be discharged, or of any legal contract,
express or implied, which he has made
touching the discharge of such trust, or
wilfully suffers any other person so to do,
commits "criminal breach of trust".
* * *

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".

Explanation.-A
dishonest
concealment of facts is a deception within
the meaning of this section.
2 All. Ajay Kumar Baghel Vs. State of U.P. & Anr.
233

Illustrations...
* * *

420. Cheating and dishonestly
inducing delivery of property.-Whoever
cheats and thereby dishonestly induces the
person deceived to deliver any property to
any person, or to make, alter or destroy the
whole or any part of a valuable security, or
anything which is signed or sealed, and
which is capable of being converted into a
valuable security, shall be punished with
imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine.
* * *

463. Forgery.-Whoever makes
any false documents or false electronic
record or part of a document or electronic
record, with intent to cause damage or
injury, to the public or to any person, or to
support any claim or title, or to cause any
person to part with property, or to enter
into any express or implied contract, or
with intent to commit fraud or that fraud
may be committed, commits forgery.
* * *

467.
Forgery
of
valuable
security, will, etc.-Whoever forges a
document which purports to be a valuable
security or a will, or an authority to adopt
a son, or which purports to give authority
to any person to make or transfer any
valuable security, or to receive the
principal, interest or dividends thereon, or
to receive or deliver any money, movable
property, or valuable security, or any
document purporting to be an acquittance
or receipt acknowledging the payment of
money, or an acquittance or receipt for the
delivery of any movable property or
valuable security, shall be punished with
2[imprisonment
for
life],
or
with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine.
* * *

468. Forgery for purpose of
cheating.-Whoever
commits
forgery,
intending that the document or electronic
record forged shall be used for the purpose
of cheating, shall be punished with
imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine.
* * *

471. Using as genuine a forged
document or electronic record.-Whoever
fraudulently or dishonestly uses as genuine
any document or electronic record which
he knows or has reason to believe to be a
forged document or electronic record, shall
be punished in the same manner as if he
had forged such document or electronic
record."

17. Criminal breach of trust defined
by
Section
405
IPC
entails
misappropriation or conversion of another's
property for one's own use, with a
dishonest intention. Cheating defined under
Section 415 IPC also involves an ingredient
of having a dishonest or fraudulent
intention which is aimed at inducing the
other party to deliver any property. Both the
sections clearly lay down "dishonest
intention", as a precondition for even prima
facie establishing the commission of the
said offences. In order to assess the
allegations leveled by the complainant, the
question whether applicant's actions were
committed in furtherance of a dishonest
intention is to be seen.

18. Except for the bald allegation
leveled by the complainant, there is
absolutely no material to establish that the
applicant had entered into any agreement
with the complainant to sell his immovable
property. Even as per the complainant, the
property was worth Rs.60,00,000/- and he
234 INDIAN LAW REPORTS ALLAHABAD SERIES
has paid merely Rs.17,00,000/- through
banking channel and Rs.12,00,000/- are
claimed to have been paid after borrowing
the same from undisclosed sources and
except for the bald allegation, there is
absolutely no material to establish this
payment. Even as per the complainant
himself, he has not paid or even tendered to
the applicant the balance amount of
Rs.31,00,000/- towards sale consideration
for the immovable property and there
would be no occasion for execution of any
sale deed prior to payment of the total sale
consideration and the refusal to execute the
sale
deed
would
not
establish
any
'dishonest intention' of the applicant.
Therefore, the offences under Sections 406
and 420 I.P.C. are not made out from the
complainant's allegations.

19. Regarding the alleged act of
showing a false title deed, there is no
allegation that the applicant had himself
made the false title deed. In Sheila
Sebastian v. R. Jawaharaj, (2018) 7 SCC
581, the Hon'ble Supreme Court explained
the requirement of the offence of 'forgery'
in the following words: -

"25. Keeping in view the strict
interpretation of penal statute i.e. referring
to rule of interpretation wherein natural
inferences are preferred, we observe that a
charge of forgery cannot be imposed on a
person who is not the maker of the same. As
held in plethora of cases, making of a
document is different than causing it to be
made. As Explanation 2 to Section 464
further clarifies that, for constituting an
offence under Section 464 it is imperative
that a false document is made and the
accused person is the maker of the same,
otherwise the accused person is not liable
for the offence of forgery."

20. The offence of forgery is made out
only against the person who has make the
fake document and there is no allegation
that the applicant had made the forged copy
of any sale deed. Therefore, the offences
under Section 467 and 468 are not made
out from the complainant's allegations.

21. The complainant himself states
that the applicant had shown the fake title
deed after he had already made the entire
payment
of
Rs.29,00,000/-
and
the
applicant did not induce the complainant to
make any payment after showing the
alleged fake deed. The alleged fake deed is
said to have been destroyed also before the
applicant could have used it as genuine to
cheat the complainant. Therefore, the
offence under Section 471 is also not made
out from the complainant's allegations.

22. The complaint states that the
applicant had given a cheque for Rs.
11,71,373/- towards return of the amount of
Rs. 29,00,000/-. Although this Court is not
required to return a finding of fact while
deciding an application under Section 482
Cr.P.C., the magic odd figure of Rs.
11,71,373/- apparently does not bear any
co-relation with the sum of Rs.29,00,000/-
that is alleged to have been paid by the
complainant towards purchase of the flat
and prima facie this odd figure supports the
contention of the applicant that it was a
payment towards a business transaction
between the parties.

23. The complainant claims that the
cheque was dishonored by the bank and in
such a situation, the complainant had the
remedy of filing a complaint under Section
138 of the Negotiable Instruments Act,
1881, which he chose not to avail.
Therefore, the present case also falls in
category (6) mentioned in para 102 of
2 All. Ajay Kumar Baghel Vs. State of U.P. & Anr.
235
Bhajan Lal (Supra), i.e. where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

24. The complainant has not stated
that he has filed any complaint under
Section 138 of the Negotiable Instruments
Act, 1881 and it appears that he has lodged
the F.I.R. after being aggrieved by the
dishonor of the cheque by the Bank. In this
regard, it would be relevant to have a look
at Section 142 (1) of the Negotiable
Instruments Act, 1881 which provides that:
-

"142. Cognizance of offences.-
(1) Notwithstanding anything contained in
the Code of Criminal Procedure, 1973 (2 of
1974),-

(a) no court shall take cognizance
of any offence punishable under Section
138 except upon a complaint, in writing,
made by the payee or, as the case may be,
the holder in due course of the cheque;

(b) such complaint is made within
one month of the date on which the cause of
action arises under clause (c) of the proviso
to Section 138:

Provided that the cognizance of a
complaint may be taken by the court after
the prescribed period, if the complainant
satisfies the court that he had sufficient
cause for not making a complaint within
such period.

(c) no court inferior to that of a
Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any
offence punishable under Section 138."

25. Therefore, the filing of an FIR
alleging that the cheque given by the
applicant was returned by the Bank unpaid,
which amounts to commission of offences
of criminal breach of trust and cheating, is
barred by the provisions contained in
Section 142 of the Negotiable Instruments
Act. This also brings the present case
within category (6) of Para 102 of Bhajan
Lal (Supra), i.e. where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act to the
institution
and
continuance
of
the
proceedings.

26. So far as the allegation of
commission of the offence of criminal
intimidation punishable under Section 506
IPC is concerned, the said offence is
defined in Section 503 IPC as follows: -

"503. Criminal intimidation.-
Whoever threatens another with any injury
to his person, reputation or property, or to
the person or reputation of any one in
whom that person is interested, with intent
to cause alarm to that person, or to cause
that person to do any act which he is not
legally bound to do, or to omit to do any
act which that person is legally entitled to
do, as the means of avoiding the execution
of
such
threats,
commits
criminal
intimidation."

27. Although the complainant has
alleged
threatening
by
the
applicant
through
mobile
phone,
there
is
no
allegation that the threat was extended with
intent to cause alarm to the complainant, or
to cause him to do or omit to do any act as
the means of avoiding the execution of
such threats. Therefore, in absence of the
allegation of such an 'intent', the offence of
criminal intimidation is also not made out.

28. Therefore, none of the offences
alleged are not made out from the
allegations leveled by the complainant and
the material relied upon by him and the
236 INDIAN LAW REPORTS ALLAHABAD SERIES
present case falls within category (3)
mentioned in para 102 of Bhajan Lal
(Supra).

29. The complainant has rightly
contended that this Court cannot consider
the applicant's defence at this stage and this
Court has not considered any plea raised by
the applicant in his defence. Even as per the
complainant's case, the complainant had
entered into an agreement to purchase a flat
worth Rs. 60,00,000/- and had paid a sum
of Rs.17,00,000/- through banking channel
and Rs.12,00,000/- in cash without any
documentation. No written agreement was
executed in this regard, what to say about
the agreement being registered. In absence
of a registered agreement, no suit based on
that agreement would lie in any Court and
it would be difficult for the complainant to
succeed even on the test of a preponderance
of probabilities in his favour. Yet, the
complainant has chosen to initiate criminal
proceedings, which require a much high
level of burden of proof beyond reasonable
doubt.

30. The complainant has claimed that
had he demanded refund of money from the
applicant and applicant had given a cheque
of Rs. 11,71,373/- , which was dishonored,
but the complainant did not initiate any
proceeding under Section 138 of the
Negotiable Instruments Act. Admittedly,
the complainant has not initiated any civil
suit for recovery of the amount of money
from the applicant. Had the complainant
initiated
some
civil
proceedings
for
enforcement of his rights of specific
performance of the alleged contract of sale
of immovable property or for recovery of
money paid under the alleged agreement, it
could be accepted that the complaint had
initiated criminal proceedings for merely
punishment of the applicant. As the
complainant
has
initiated
criminal
proceedings only, it appears that the
criminal proceedings have been initiated
with an oblique motive to coerce the
applicant to pay money to the complainant.
Thus a matter, which is essentially of a civil
nature, has been given a cloak of criminal
offence as a short cut of other remedies,
which require payment of Court fee and
where the proof of the right will be subject
to inadmissibility of an unregistered
agreement
regarding
purchase
of
immovable property worthy Rs.60,00,000/-
.

31. In G. Sagar Suri v. State of U.P.,
(2000) 2 SCC 636, the Hon'ble Supreme
Court held that: -

"8.Jurisdiction under Section 482
of the Code has to be exercised with great
care. In exercise of its jurisdiction the High
Court is not to examine the matter
superficially. It is to be seen if a matter,
which is essentially of a civil nature, has
been given a cloak of criminal offence.
Criminal proceedings are not a short cut of
other remedies available in law. Before
issuing process a criminal court has to
exercise a great deal of caution. For the
accused it is a serious matter. This Court
has laid certain principles on the basis of
which the High Court is to exercise its
jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be
exercised to prevent abuse of the process of
any court or otherwise to secure the ends of
justice."

32. As far back as in the year 2006,
the Hon'ble Supreme Court had observed in
Indian Oil Corpn. v. NEPC India Ltd.,
(2006) 6 SCC 736, that: -
2 All. Ajay Kumar Baghel Vs. State of U.P. & Anr.
237

"13.While on this issue, it is
necessary to take notice of a growing
tendency in business circles to convert
purely civil disputes into criminal cases.
This is obviously on account of a
prevalent
impression
that
civil
law
remedies are time consuming and do not
adequately
protect
the
interests
of
lenders/creditors. Such a tendency is seen
in several family disputes also, leading to
irretrievable
breakdown
of
marriages/families. There is also an
impression
that
if
a
person
could
somehow be entangled in a criminal
prosecution, there is a likelihood of
imminent settlement. Any effort to settle
civil disputes and claims, which do not
involve any criminal offence, by applying
pressure through criminal prosecution
should be deprecated and discouraged....
* * *

14. While no one with a legitimate
cause or grievance should be prevented
from seeking remedies available in criminal
law,a complainant who initiates or persists
with a prosecution, being fully aware that
the criminal proceedings are unwarranted
and his remedy lies only in civil law,
should himself be made accountable, at
the end of such misconceived criminal
proceedings, in accordance with law. One
positive step that can be taken by the
courts, to curb unnecessary prosecutions
and harassment of innocent parties, is to
exercise their power under Section 250
CrPC more frequently, where they discern
malice or frivolousness or ulterior motives
on the part of the complainant...."

33. However, instead of being
checked and restrained, the tendency of
entangling opponents in criminal cases to
indirectly pressurize them to enter into a
settlement for redressal of the grievances of
infringement of civil rights, is ever
growing. A very large share of the judicial
time of the Courts is consumed in dealing
with matters which essentially arise out of
civil disputes and for which no civil
proceedings for recovery of money, specific
performance of contract cancellation of
agreement etc., are initiated, which require
payment of court fee.

34. This tendency of misusing the
criminal
proceedings
for
claiming
enforcement of civil rights by indirect
methods and evading payment of stamp
duty, registration fee and court fee cannot
be appreciated by the Courts and it should
not be encouraged. It is nothing but
cheating committed against the public at
large by depriving the public exchequer of
the money that would be payable as
registration fee, stamp duty and court fee,
which would have benefited the public at
large.

35. So far as the applicant's criminal
history and his having concealed his
criminal history while obtaining bail from
this Court, the same are not relevant for
adjudication of this application, as the
conduct of the applicant would not justify
the complainant's conduct of initiating
criminal proceedings with an oblique
motive of taking advantage in a civil
dispute even when the alleged offences are
not made out even as per the allegations
leveled and material relied upon by the
complainant.

36. From the aforesaid facts, it
appears that the complaint has instituted the
criminal proceeding maliciously with an
ulterior motive for wreaking vengeance on
the applicant, with a view to spite him due
to the complainant's personal grudge. In
such circumstances, the continuance of
criminal proceedings is a gross abuse of the
238 INDIAN LAW REPORTS ALLAHABAD SERIES
process of criminal law and the same are
liable to be quashed.

37. Accordingly, the application is
allowed. The Charge Sheet No. 1 of 2022
dated 30.09.2022 for offences under
Sections 420, 467, 468, 471, 406 & 506
I.P.C. submitted in furtherance of F.I.R. No.
440 of 2022, Police Station Sushant Golf
City, Lucknow, the summoning order dated
02.12.2022 as well as the entire criminal
proceedings of Criminal Case No. 117643
of 2022, State v. Ajay Baghel, pending
before
the
Judicial
Magistrate-III,
Lucknow, are hereby quashed.
---------
(2024) 2 ILRA 238
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.02.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 7071 of 2022

Rakesh Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Alok Kr. Misra

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 451 & 482 - Mines and
Minerals (Development and Regulation) Act,
1957- Sections 4(1-A), 15, 15(1), 21 & 21(4A) - U.P.Minor Minerals (Concession) Rules,
2021 - Rules 72 & 72(6) - Application
u/section 482 Cr.P.C. -assailing the validity of
order, whereby application for release of a vehicle is
rejected - as well as the order passed in Criminal
Revision - Applicant's JCB machine was hired for
digging of a pond - seized - on the ground that
digging was without any permit -- trial - application
for releasing JCB was rejected - instant application -
applicant argued that permission was granted by the
SDM - and trial court wrongly deferred authority to
District Magistrate per Rule 72(6) of UP Minor
Minerals Rules, 2021 - court finds that - JCB was
seized for alleged unauthorized excavation, though
applicant claimed valid permission via Sub Divisional
Magistrate; revision petition was also dismissed -
held - Rule 72 governs transportation of minerals, not
excavation machinery - hence, inapplicable to the
seized JCB - Section 4(1-A) of the Act, 1957
reinforces lawful transport/storage - further court
clarified that, Section 21(4-A) of the Act, 1957 vests
confiscation and disposal powers with the competent
Court, not the District Magistrate-hence, impugned
orders quashed, Magistrate directed to reconsider
release within 30 days.
(Para - 13, 14, 15, 18, 19)

Application Disposed of. (E-11)

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Ajeet Kumar Mishra holding
brief of Sri Alok Kr. Misra, learned counsel
appearing for the applicant and Ms Charu
Singh,
learned
Additional
Government
Advocate and perused the record.

2. By means of the instant application
filed under Section 482 Cr.P.C., the applicant
has assailed validity of the order dated
20.07.2022 passed by Judicial Magistrate-I,
Gonda whereby an application for release
of a vehicle has been rejected by the trial
court on the ground that as per the
provisions contained in Section 72(6) of the
Uttar Pradesh Minor Minerals (Concession)
Rules, 2021 (hereinafter referred to 'the
Rules, 2021'), the District Magistrate is
authorized to pass an order for release of
vehicle.

The applicant had filed Criminal
revision No.273 of 2022 challenging the
aforesaid order dated 20.07.2022 and the
revision has been dismissed by means of