# Akhilesh Kumar Gupta & Anr v. State of U.P. & Anr

- **Citation:** (2022) 10 ILRA 534
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-08
- **Case number:** Application U/S 482 No. 20095 of 2022
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-gupta-anr-v-state-of-u-p-anr-47750
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - 420,
467, 468, 471 and 120-B - "process of
law" - ''abused' - if the matter is
essentially of civil nature and has been
given
a
cloak
of
criminal
offence,
therefore, applying the principles, a High
Court can exercise its jurisdiction provided
under Section 482 Cr.P.C.- merely to take
advantage of a relatively quick relief
granted in a criminal case any contrast to
a civil dispute - such an exercise is
nothing but an abuse of process of law
which must be discouraged in its entirety.
(Para - 10)

Question of validity of agreement to sale of
property - subjudiced before Civil Court -
contrary stands taken by parties - Applicants
challenging F.I.R., charge sheet, summoning
order and entire proceedings - civil dispute
given a dark and bright colour of a criminal
offence - elements of conspiracy completely
absent - proceedings malacious - ingredients of
offence prima-facie not made out. (Para -
4,5,9)

HELD:-Criminal proceedings initiated against
the applicants are a glaring example of ''abuse
of process of law' where a dispute of civil nature
has been given colour of criminal offence. Prima
facie essential ingredients of alleged offence not
present. Criminal proceedings itself became
vexatious and oppressive. (Para -14 )

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

## Text

534 INDIAN LAW REPORTS ALLAHABAD SERIES
complaint or a First Information Report, as
given, has to be registered. The Act thus
draws a distinction in Section 4(2)(b) in the
nature of information given by the
concerned person, which can be through a
complaint or a First Information Report and
thus the court concerned has a discretion to
look into it and proceed as per its wisdom.

23. In view of our aforesaid
discussions, a Special Judge or court so
established can treat an application under
Section 156(3) Cr.P.C. as a complaint and
proceed further in accordance with law.

24. This Court thus answers the
reference as referred by learned Single
Judge as follows:-

"The view taken in the case of
Soni Devi vs. State of U.P. and others:
2022(5)ADJ 64 that an application under
Section 156(3) Cr.P.C. cannot be treated as
a complaint case is incorrect. The court
concerned while exercising its judicial
discretion can treat the said application as a
complaint case also."

25. While answering the questions
referred to by the learned Single Judge, let
the present petitions and appeals be now
placed before the appropriate Bench on
October 20,2022.
----------
(2022) 10 ILRA 534
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2022

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482 No. 20095 of 2022

Akhilesh Kumar Gupta & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Vishnu Prakash Srivastava

Counsel for the Opposite Parties:
Govt. Advocate, Sri Vipul Pandey

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - 420,
467, 468, 471 and 120-B - "process of
law" - ''abused' - if the matter is
essentially of civil nature and has been
given
a
cloak
of
criminal
offence,
therefore, applying the principles, a High
Court can exercise its jurisdiction provided
under Section 482 Cr.P.C.- merely to take
advantage of a relatively quick relief
granted in a criminal case any contrast to
a civil dispute - such an exercise is
nothing but an abuse of process of law
which must be discouraged in its entirety.
(Para - 10)

Question of validity of agreement to sale of
property - subjudiced before Civil Court -
contrary stands taken by parties - Applicants
challenging F.I.R., charge sheet, summoning
order and entire proceedings - civil dispute
given a dark and bright colour of a criminal
offence - elements of conspiracy completely
absent - proceedings malacious - ingredients of
offence prima-facie not made out. (Para -
4,5,9)

HELD:-Criminal proceedings initiated against
the applicants are a glaring example of ''abuse
of process of law' where a dispute of civil nature
has been given colour of criminal offence. Prima
facie essential ingredients of alleged offence not
present. Criminal proceedings itself became
vexatious and oppressive. (Para -14 )

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-
1. St. of Haryana Vs Bhajan Lal , 1992 Supp (1)
SCC 335
10 All. Akhilesh Kumar Gupta & Anr. Vs. State of U.P. & Anr.
535
2. Zandu Pharmaceutical Works Ltd Vs Mohd
Sharaful Haque, (2005) 1 SCC 122

3. Ahmed Ali Quarashi & anr. Vs The St. of U.P. ,
2020 SCC Online SC 107

4. Joseph Salvaraja A Vs St. of Guj., (2011) 7
SCC 59

5. Sushil Sethi & anr. Vs The St. of A.P. & ors.,
(2020) 3 SCC, 240

6. Priti Saraf & Anr Vs St. of NCT of Delhi & anr
, 2021 SCC Online SC 206

7. Sau. Kamal Shivaji Pokarnekar Vs The St. of
Maha. , (2019) 14 SCC 350

8. St. of Karnataka Vs M. Devendrappa , 2015
(3) SCC 424

9. I.O.C. Vs NEPC India Ltd. & ors., (2006)6
SCC 736

10. M/s Neeharika Infrastructure Pvt. Ltd Vs St.
of Maha. & ors. , (2020) 10 SCC 118

11. Ramveer Upadhyay & anr. Vs St. of U.P. &
anr. , 2022 SCC Online SC 484

12. Wyeth Ltd. & ors. Vs St. of Bihar & anr.,
Criminal Appeal No.1224 of 2022 (S. L. P (Crl.)
No.10730 OF 2018)

13. I.O.C. Vs NEPC India Ltd. & ors. (2006) 6
SCC 736

14. G. Sagar Suri & anr. Vs St. of U.P. & ors.,
(2000) 2 SCC 636

15. Mitesh Kumar J. Sha Vs St. of Karn. & ors.,
2021 SCC OnLine SC 976

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. To what extent the "process of law"
could be ''abused' that the criminal
proceedings exfacie became vexatious and
oppressive and facts of the present case are
glaring example of it. It is a legal battle
among advocates of a good standing at
District
Court,
Kanpur.
Both
the
applicant/accused as well as opposite party
No.2/complainant are advocates. The facts
further
unfolds
that
the
Lawyers'
Association, Kanpur Nagar through its
Secretary filed a civil suit bearing No.
RS/000/712/216 against some advocates
and private persons including one Smt.
Renu Nigam to declare an agreement to
sale dated 26.03.2008 being void ab initio
on the ground being fraud. The said suit is
still pending. The applicant No.1 was an
advocate for the Association, however, on
being certain dispute, he was later on
discharged. An F.I.R. was lodged by one
advocate
on
somewhat
similar
facts
wherein opposite party No.2/complainant
herein was also an accused. The further
proceedings thereof are not on record.

2. Further facts are that the opposite
party No.2 posted a letter dated 05.09.2019
by a speed post addressed to the Senior
Superintendent of Police, Kanpur Nagar
that his neighbour one Renu Nigam in
connivance with other persons has filed
certain documents in the above referred
suit, therefore, inquiry be conducted and
criminal action be taken against her. No
further proceedings on the said application
are placed on record except Renu Nigam
submitted duly sworn affidavit dated
10.12.2019 addressed to the A.D.G.,
Kanpur that the applicant No.1 herein had
committed
forgery
and
submitted
documents in the above referred suit
without her consent. Similarly Renu Nigam
also filed an affidavit somewhat on similar
averments/allegations
duly
sworn
on
24.02.2021 in the civil suit. There is
nothing on record how the opposite party
No.2 got possession of the said affidavit
submitted before A.D.G., Kanpur and on
basis of said affidavit, the present F.I.R.
536 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 30.12.2020 was lodged against
applicant No.1 and Renu Nigam for
committing offence under Sections 420,
467, 468, 471 and 120-B I.P.C. alleging
that the applicant No.1 and Renu Nigam
hatched conspiracy and prepared forged
document in order to grab the property in
question.

3. The allegations made by Renu
Nigam which are relied upon by the
complainant/opposite party No.2 are still
subject matter of the suit and only on basis of
said document, the F.I.R. was lodged. The
police machinery investigated the case and
came to a conclusion that a case was made
out against applicant No.1 for committing
offence under Sections 420, 467, 468, 471,
120-B and 384 I.P.C., and no evidence was
found against Renu Nigam and therefore she
was exonerated. However, the allegations
were found to be true against one other
advocate (applicant No.2) for committing the
said offences, accordingly, charge sheet was
submitted and cognizance was taken.

4. In these circumstances, the applicants
are before this Court challenging the F.I.R.,
charge sheet, summoning order and entire
proceedings arising out of Case Crime No.
0356 of 2020 under Sections 420, 467, 468,
471, 120-B and 384 I.P.C., Police Station-
Kotwali, District- Kanpur Nagar.

5. Sri Vishnu Prakash Srivastava,
learned
counsel
for
applicants
has
vehemently placed the case of the applicants
that civil dispute has been given a dark and
bright colour of a criminal offence. The
opposite party No.2 has already been made
an accused for committing forgery and with
malafide intention, the applicant No.1 was
discharged from being advocate for the
Association in the above referred suit.
Initially Renu Nigam was not even a party to
the suit but later on by handwriting on plaint
she was made party. Renu Nigam has
submitted an affidavit which still has to be
scrutinized and if necessary subjected to cross
examination during the suit proceedings
however only on basis of the said document,
an F.I.R. was lodged and unfair investigation
was conducted and despite no material to
support the allegations, a charge sheet was
filed against the present applicants. A
document which still has to be declared being
forged, the criminal proceedings have predetermined it to be a forged document and in
the present case, no forgery or cheating was
committed. Consequently, no offence under
Section 384 Cr.P.C. can be made out as there
was no dishonestly or inducement to deliver
any valuable property. The elements of
conspiracy are also completely absent. The
proceedings
are
malacious
and
the
ingredients of the offence are prima-facie not
made out, therefore, the prayers of this
application be allowed.

6. Per contra, Sri Chandan Agarwal,
learned A.G.A. for the State and Sri Vipul
Pandey, learned counsel for opposite party
No.2/complainant
have
supported
the
investigation that the applicants being
committed cheating and forgery and thus
induced
to
deliver
valuable
security,
therefore, the offences of cheating, forgery
and extortion are prima-facie made out.
Learned counsel further submitted that since
the prima-facie case was made out, therefore,
the circumstance does not warrant any
interference under inherent jurisdiction.

7. The law in regard to inherent
powers under Section 482 Cr.P.C. is
discussed hereinafter :-

"Inherent Power of the High
Court
under
Section
482
Criminal
Procedure Code 1973 :-
10 All. Akhilesh Kumar Gupta & Anr. Vs. State of U.P. & Anr.
537

(I) "Inherent Power" of the High
Court under Section 482 Cr.P.C., an
extraordinary power is with purpose and
object of advancement of justice, which is
to be exercised "to give effect to any order
under the Cr.P.C.", or "to prevent abuse of
process of any Court", or "to secure ends of
justice", making arena of the power very
wide, yet it is to be exercised sparingly,
with great care and with circumspection,
that too in the rarest of rare case.

(II) It is no more res integra that
exercise of inherent power could be invoked
to even quash a criminal proceeding/First
Information Report/complaint /chargesheet,
but only when allegation made therein does
not
constitute
ingredients
of
the
offence/offences and /or are frivolous and
vexatious on their face, without looking
into defence evidence, however such power
should not be exercised to stifle or cause
sudden death of any legitimate prosecution.
Inherent power does not empower the High
Court to assume role of a trial court and to
embark upon an enquiry as to reliability of
evidence and sustainability of accusation,
specifically in a case where the entire facts
are
incomplete
and
hazy.
Similarly
quashing of criminal proceedings by
assessing the statements under section 161
Cr.P.C. at initial stage is nothing but
scuttling a full fledged trial.

(III) There can not be any
straight jacket formula for regulating the
inherent power of this Court, however the
Supreme Court has summarised and
illustrated some categories in which this
power could be exercised in catena of
judgments. Some of them are State of
Haryana Vs Bhajan Lal : 1992 Supp (1)
SCC 335, Zandu Pharmaceutical Works
Ltd Vs Mohd Sharaful Haque: (2005) 1
SCC 122, Ahmed Ali Quarashi and Anr
Versus The State of Uttar Pradesh : 2020
SCC Online SC 107, Joseph Salvaraja A v.
State of Gujarat (2011) 7 SCC 59, Sushil
Sethi and another Vs The State of
Arunachal Pradesh and others (2020) 3
SCC, 240, Priti Saraf and Anr Vs State of
NCT of Delhi and Anr : 2021 SCC Online
SC 206. Some categories/ circumstances as
illustrations but not exhaustive are :
allegations made in FIR / complaint, if are
taken at their face value and accepted do
not prima facie constitute any offence or
are so absurd and inherently improbable to
make out any case or no cognizable offence
is disclosed against the accused, criminal
proceedings is maliciously instituted with
an ulterior motive and with a view to spite
the accused due to private and personal
grudge, or where there is a specific legal
bar engrafted in any of the provisions of the
Code or in the concerned Act to the
institution
and
continuance
of
the
proceedings or when dispute between the
parties constitute only a civil wrong and
not a criminal wrong, further Courts would
not permit a person to be harassed
although no case for taking cognizance of
the offence has been made out.

(IV) In Sau. Kamal Shivaji
Pokarnekar v. The State of Maharashtra :
(2019) 14 SCC 350, the Apex Court has
laid emphasis on the principles laid down
in two of its previous judgements namely,
State of Karnataka v. M. Devendrappa :
2015 (3) SCC 424 and Indian Oil
Corporation v. NEPC India Ltd. & Ors.:
(2006)6 SCC 736 and held that quashing of
criminal proceedings is called for only
when the complaint does not disclose any
offence, or the complaint is frivolous,
vexatious,
or oppressive
and
further
clarified that defences available during a
trial and facts/aspects whose establishment
during the trial may lead to acquittal
538 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot form the basis of quashing a
criminal
complaint.
The
criminal
complaints cannot be quashed only on the
ground that the allegations made therein
appear to be of a civil nature, if the
ingredients of the alleged offence are prima
facie made out in the complaint.

(V) The Supreme Court in M/s
Neeharika Infrastructure Pvt. Ltd Versus
State of Maharashtra and Others : (2020)
10 SCC 118, has categorically held that
High Court is not justified in passing the
order of not to arrest and or no coercive
steps either during the investigation or till
the final report/ charge sheet is filed under
Section
173
Cr.P.C.,
while
dismissing/disposing petition under Section
482Cr.P.C. and/or under Article 226 of the
Constitution and even in exceptional cases
where High Court is of the opinion that a
prima facie case is made out for stay of
further investigation,such order has to be
with brief reasons, though such orders
should not be passed routinely, casually
and/or mechanically.

(VI) Whether the allegations are
true or untrue, would have to be decided in
the trial. In exercise of power under Section
482 of the Cr.P.C., the Court does not
examine the correctness of the allegations
in a complaint except in exceptionally rare
cases where it is patently clear that the
allegations are frivolous or do not disclose
any offence. (see Ramveer Upadhyay &
Anr. versus State of U.P. & Anr. 2022 SCC
Online SC 484)

(VII) "A careful reading of the
complaint, the gist of which we have
extracted above would show that none of
the ingredients of any of the offences
complained against the appellants are
made out. Even if all the averments
contained in the complaint are taken to be
true, they do not make out any of the
offences alleged against the appellants.
Therefore, we do not know how an FIR was
registered and a charge-sheet was also
filed.....It is too late in the day to seek
support from any precedents, for the
proposition that if no offence is made out
by a careful reading of the complaint, the
complaint deserves to be quashed." (See,
Wyeth Limited & others vs, State of Bihar
& another, Criminal Appeal No.1224 of
2022
(Special
Leave
Petition
(Crl.)
No.10730 OF 2018), decided on 11th
August, 2022)."

(emphasis supplied)

8. I n the abovereferred facts,
submissions and discussion of law, this
Court proceeds to consider the rival
submissions.

9. Undisputedly, the question of
validity of agreement to sale of the property
is subjudiced before the Civil Court
wherein contrary stands have been taken by
the parties by way of filing an affidavit and
the suit is still pending, therefore, at this
stage, to arrive at a conclusion that any
forgery had taken place for the purpose of
execution of sale deed would not be a
correct approach.

10. The police machinery have acted
only on the basis of an application of
complainant and affidavit of Renu Nigam
alleging allegations against the applicant
No.1 only. A similar affidavit has also been
filed
in
the
suit
proceedings.
The
documents are still to be scrutinized before
the Civil Court, therefore, at this stage, the
police authorities ought to have kept
constraint
not
to
proceed
with
the
investigation as there was no evidence that
the documents in question were in fact
10 All. Akhilesh Kumar Gupta & Anr. Vs. State of U.P. & Anr.
539
forged and the element of deceit was
present. There is no bar that on the basis of
overlapping facts, both civil and criminal
proceedings can go on simultaneously,
however, the Supreme Court in the case of
Indian Oil Corporation v. NEPC India
Ltd. & Ors (2006) 6 SCC 736 has taken a
note of growing tendency to convert purely
civil dispute into criminal cases with the
parties to settle the civil dispute and
depreciated such criminal prosecution.
Earlier also, in G. Sagar Suri and another
vs. State of U.P. and others, (2000) 2 SCC
636, the Supreme Court has held that if the
matter is essentially of civil nature and has
been given a cloak of criminal offence,
therefore, applying the principles, a High
Court can exercise its jurisdiction provided
under Section 482 Cr.P.C.

11. In recent judgment of Mitesh
Kumar J. Sha Vs. State of Karnataka and
others, 2021 SCC OnLine SC 976, the
Supreme Court held that the Court has
enumerable circumstances expressed its
disapproval for imparting criminal colour
to a civil dispute, merely to take advantage
of a relatively quick relief granted in a
criminal case any contrast to a civil dispute
and further held that such an exercise is
nothing but an abuse of process of law
which must be discouraged in its entirety.

12. The Court further proceeds to
consider whether the ingredients of the
alleged offence are prima-facie made out or
not. Sections 480, 420 I.P.C. (Cheating and
dishonestly induces a person to deliver the
property)
pre-supposes
cheating
and
thereby dishonestly inducing the person
deceived to deliver any property. Such
intention would only be satisfied if it is
concluded that the ''sale deed' is a forged
document or executed with fraud. However,
the said issue is still pending in the civil
suit. Therefore, at this stage, the element of
cheating or dishonest cannot be held to be
present. Similarly the allegations of forgery
i.e. making of any false document with
intent to cause damage to any person or to
support any claim or title is also one of the
subject matter in the civil proceedings and
only on the basis of an affidavit submitted
by Renu Nigam who is also a party
respondent in the suit and also filed her
reply thereto cannot be a basis to initiate
criminal proceedings when the documents
are still to be scrutinized. The element of
intention will only be determined once the
document is declared to be forged or
declared to be void ab-initio on the ground
of fraud.

13. The allegations of extortion are
presupposed
cheating
and
forgery,
therefore, the same is also not made out at
the present stage. The investigating officer
has rushed to the conclusion only on the
basis of allegations and statement that the
document was forged without considering
that the civil suit is still pending where
such issues are still to be addressed and as
such in absence of dishonest intention and
that
the
document
was
forged,
the
ingredients of the alleged offence are
absent. In this regard, paragraph 46 of
Mitesh (supra) is relevant :-

"46. Recently, this Court in case
of Randheer Singh v.The State of U.P.1, has
again reiterated the long standing principle
that criminal proceedings must not be used
as instruments of harassment. The court
observed as under:--

"33. ....There can be no doubt
that jurisdiction under Section 482 of the
Cr.P.C. should be used sparingly for the
purpose of preventing abuse of the process
of any court or otherwise to secure the ends
540 INDIAN LAW REPORTS ALLAHABAD SERIES
of justice. Whether a complaint discloses
criminal offence or not depends on the
nature of the allegation and whether the
essential ingredients of a criminal offence
are present or not has to be judged by the
High Court. There can be no doubt that a
complaint disclosing civil transactions may
also have a criminal texture. The High
Court has, however, to see whether the
dispute of a civil nature has been given
colour of criminal offence. In such a
situation, the High Court should not
hesitate to quash the criminal proceedings
as held by this Court in Paramjeet Batra
(supra) extracted above.""

(emphasis supplied)

14. The outcome of the above
discussion is that criminal proceedings
initiated against the applicants are a glaring
example of ''abuse of process of law' where
a dispute of civil nature has been given
colour of criminal offence and further
prima facie essential ingredients of alleged
offence are not present and therefore, the
criminal
proceedings
itself
became
vexatious and oppressive.

15. In view of above, the proceedings
of Case No. 122095 of 2021 (State vs.
Akhilesh Kumar Gupta and another) in
Case Crime No. 0356 of 2020 u/s 420, 467,
468, 471, 120-B and 384 I.P.C., Police
Station- Kotwali, District- Kanpur Nagar,
pending in the Court of learned Chief
Metropolitan Magistrate, Kanpur Nagar are
hereby quashed.

16. The application stands allowed.
----------
(2022) 10 ILRA 540
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.07.2022

BEFORE
THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 21400 of 2022

Afsari Akbar Qayyum & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ambreen Masroor,Sr. Advocate

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Sections 420, 467, 468, 471 & 120B - The Code of criminal procedure, 1973 -
Section 482 - Inherent power - Section
391 - appellate court is empowered and
can call additional evidence , Section 400
-
Additional
Sessions
Judge
has
empowered to exercise all the powers of
Sessions Judge under Chapter XXX thus,
the Additional Sessions Judge can call
additional evidence , Section 401 - High
Court, in its discretion, exercise any of the
powers conferred on a court of appeal by
Section 386, 389, 390 and 391 - once the
High Court is empowered to call the
additional evidence, while exercising its
revisional power, then Sessions Judge
under
Section
399(1)
of
Cr.P.C.
by
operation of law, is also empowered to
call an additional evidence.(Para -18,19 )

Applicant filed an application under Section
245(2) of Cr.P.C. - dismissed - by Chief Judicial
Magistrate - aggrieved with order - Revision filed
by applicants - prayer - certain additional
documents and evidence, which may be
permitted to file - same may be taken on record
for the proper adjudication of the matter -
revision rejected by Additional Sessions Judge -
ground - Sessions Judge can exercise powers
under Section 399 of Cr.P.C. - which is
analogous to Section 401 of Cr.P.C., in an event
where the Sessions Judge himself has called for
the record.(Para - 3,4,12)

HELD:-Power of Sessions Judge under Section
399 of Cr.P.C., vest in toto, in an Additional
Sessions Judge, when he exercises the powers