# Anuj Gupta & Ors v. State of U.P. & Anr

- **Citation:** (2024) 7 ILRA 1435
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-09
- **Case number:** Application U/S 482. No. 194 of 2024
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anuj-gupta-ors-v-state-of-u-p-anr-52193
- **Pages:** 10

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 156(3) , 200, 202 ,204 -
complaint - Indian Penal Code, 1860 -
Section 420 - Cheating - Section 406 -
Criminal Breach of trust - Civil disputes
should not be disguised as criminal
offenses - Criminal proceedings are not a
short cut of other remedies available in
law - Criminal courts must exercise
caution before issuing process - Accused
face
serious
consequences,
and
jurisdiction under Section 482 CrPC should
prevent abuse of process or secure justice
- where a dispute which is essentially of a
civil nature, is given a cloak of a criminal
offence,
then
such
disputes
can
be
quashed,
by
exercising
the
inherent
powers under Section 482 of the Code of
Criminal Procedure.(Para - 9,16)

Allegation of cheating and criminal breach of
trust - Payment of Rs. 20 lacs to Vikas Sharma
(not an accused) - Land sale negotiation -
dispute over area of land - Earlier sale deed
executed - dispute regarding second sale deed -
Complainant filed criminal complaint (instead of
civil suit).(Para - 1 to 10)

HELD: - Lack of dishonest intention. No
entrustment of property. Dispute is civil, not
criminal. Impugned summoning order quashed.
(Para -13 to 17)

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

List of Cases cited:

## Text

7 All. Anuj Gupta & Ors. Vs. State of U.P. & Anr.
1435
----------
(2024) 7 ILRA 1435
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.07.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Application U/S 482. No. 194 of 2024

Anuj Gupta & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Akash Mishra

Counsel for the Opposite Parties:
G.A., Manoj Kumar Singh, Rishi Kant Singh
Chauhan

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 156(3) , 200, 202 ,204 -
complaint - Indian Penal Code, 1860 -
Section 420 - Cheating - Section 406 -
Criminal Breach of trust - Civil disputes
should not be disguised as criminal
offenses - Criminal proceedings are not a
short cut of other remedies available in
law - Criminal courts must exercise
caution before issuing process - Accused
face
serious
consequences,
and
jurisdiction under Section 482 CrPC should
prevent abuse of process or secure justice
- where a dispute which is essentially of a
civil nature, is given a cloak of a criminal
offence,
then
such
disputes
can
be
quashed,
by
exercising
the
inherent
powers under Section 482 of the Code of
Criminal Procedure.(Para - 9,16)

Allegation of cheating and criminal breach of
trust - Payment of Rs. 20 lacs to Vikas Sharma
(not an accused) - Land sale negotiation -
dispute over area of land - Earlier sale deed
executed - dispute regarding second sale deed -
Complainant filed criminal complaint (instead of
civil suit).(Para - 1 to 10)

HELD: - Lack of dishonest intention. No
entrustment of property. Dispute is civil, not
criminal. Impugned summoning order quashed.
(Para -13 to 17)

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

List of Cases cited:

1. A.M. Mohan Vs St. Represented by SHO &
anr., 2024 SCC OnLine SC 339

2. Vijay Kumar Ghai & ors. Vs St. of W.B. & ors.,
(2022) 7 SCC 124

3. Naresh Kumar & anr. Vs The St. of Karn. &
anr., 2024 INSC 196

4. Randheer Singh Vs St. of U.P. (2021) 14 SCC
626

5. Usha Chakraborty & Anr. Vs St. of W.B. &
anr. 2023 SCC OnLine SC 90

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

1. In the present case parties have
negotiated to execute a sale deed with
regard of certain plot. Complainant in
pursuance of negotiation has paid some
money in advance. After much negotiation
finally a sale deed was executed by
applicants
in
favour
of
wife
of
Complainant.
However,
the
dispute
remained about adjustment of some money.

2. It is further revealed from facts of
present case that parties have further
negotiated to execute another sale deed and
finally a sale deed was prepared. However,
again a dispute arose with regard to area of
land. According to Complainant it ought to
be 17x70 sq. ft. whereas as per applicants
the area was about 8x70 sq. ft. and
ultimately sale deed was not executed. It
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
was alleged by Complainant that neither
sale of larger area was executed nor money
was adjusted nor it was returned back.

3.

In
aforesaid
circumstances,
Complainant filed an application under
Section 156(3) Cr.P.C. alleging above
referred
allegations
and
that
when
Complainant asked to applicants to return
the money which was not adjusted, they
extended threats.

4. Aforesaid application filed under
Section 156(3) Cr.P.C. was considered as a
complaint and statement of Complainant as
well as witnesses were recorded under
Sections 200 and 202 Cr.P.C. respectively.
Relevant statement of Complainant is
reproduced hereinafter:

"अनुि ि अर्ुल प्रपटी डीसलिंर् का
काम करर्े हैं। इन्द्होने मुझे बर्ाया कक मैं
आई०टी०आई० िौराहे के पास िमीन खरीद रहे
हैं और अर्र मैं भी पैसे दे दूिं र्ो खरीद रेट पर
ही ये लोर् मुझे प्लाट दे देर्े। मैने विचिास कर
10 लाख के 2 िेक विक्रेर् विकास शमाा के नाम
के ददनािंक 23.07.21 को देिेश दीक्षक्षर् को दे
ददये। पािंि महीने बीर् िाने पर िब कोई
प्लाट नही समला र्ो मैने अनुि ि अर्ुल से
पूछा र्ो बोले की उस िमीन पर र्ो झर्डा है
हम आपको प्रर्ापनेर किौरा रोड पर प्लाट दे
दूिंर्ा िहािं मैने िमीन खरीद कर प्लादटिंर् कर
रहा हूाँ। उसके सलए मै मानर् िो बोले कक ये
पैसा िो दे ददया है िो एडिथट कर लेर्े। र्ो
3340 िर्ा िुट के प्लाट को खरीदने की बार्
69 लाख में र्य हुई। मैने ये 69 लाख रूपयें
कुछ नर्द 5 लाख स्िसकी रसीद 14.11.21
की दी है साढे र्ीन लाख 06.12.21 को ददया
15 लाख नर्द 10.02.22 को ददये। 15 लाख
आर०टी० िी०एस० 11.02.2022 को ककया। 5
लाख का िैक 14.2.2 को ददया। साढे 11
लाख खार्े से खार्े में दद० 18.... िार लाख
बैनामे की ददनािंक 18.02.2021 र्हसील पर
नर्द ददये। पूिा में ददये र्ये 20 लाख रुपये
एडिथट नहीिं हुए क्योकक अलर् अलर् िमीन
के अलर् अलर् मासलक िे। िब मैने ये 20
लाख मािंर्े र्ो बोले कक इस खरीदे हुए प्लाट
के बराबर में 20 X 70 िीट िीट िमीन की है
िो र्ो 20 लाख दे िुके हो बाकी ढाई लाख
रूपये और दे दो। मैने ये ढाई लाख रूपये
अननरूद्ि र्ुप्र्ा को ददये कैश दुकान पर
स्िसकी दद० 04.05.22 की रसीद हथर्सलखखर्
भी मुझे दी र्यी। मैने अर्ुल र्ुप्र्ा को िोन
कर बोला कक ढाई लाख रूपये दे ददया हूाँ
िमीन 17 X 70 िीट की रखना उर्नी ही
खरीदूिंर्ा। और ये र्य हो र्या कक इस प्लाट
को बैनामा 03.08.22 को करेर्े। ये प्लाट साढे
पच्िीस लाख में र्य हुआ िा र्ो 3 लाख शेष
िे स्िनके देने के सलए अर्ुल र्ुप्र्ा ने िोन
ककया 03.08.22 को कक विक्रेर्ा ककसान रूपेन्द्र
को ये बिे र्ीन लाख रूपये खार्े में
आर०टी०िी०एस० कर दो। और बैनामें के
सलखाने के पैसे िमा कर दो र्ो मैने 50
हिार मनोि रािपूर् के पास िमा ककया।
बैनामा सलखार्े समय मेरी पत्क्नी और बेटे से
साइन करा सलये िब मैं िहािं पहुिंिा र्ो मैने
देखा कक बैनामें में र्य 17 X 70 िीट की
िर्ह 8 X 70 िीट का बैनामा कर सलया है।
िब मैने आपनर्र् की र्ो विक्रय पत्र न पेश
ककया न विक्रेर्ा के हथर्ाक्षर शाम र्क कराये
र्ो मैने 100 नम्बर पर काल ककया। िो
बैनामा पुसलस ने आकर बैनामा लेखक से मुझे
ददलाया। इन लोर्ो ने ििी र्रीके से प्लादटिंर्
7 All. Anuj Gupta & Ors. Vs. State of U.P. & Anr.
1437
का नक्शा बनिाकर ििी र्रीके से प्लाट बेि
रहे है। पुसलस से सहायर्ा प्राप्र् न होने पर मैने
ये पररिाद प्रथर्ुर् ककया है।"

5. Trial Court concerned after
considering statements passed impugned
order dated 02.09.2023 under Section 204
Cr.P.C. whereby applicants have been
summoned to face trial under Sections 420
and 406 IPC. Relevant part of impugned
order is reproduced hereinafter:

"सुना र्िा पत्रािली का अिलोकन
ककया।

पररिादी द्िारा अपने पररिाद-पत्र में
किन ककया र्या है कक प्रािी द्िारा विपक्षीर्ण
से अिल सिंपवत्त के क्रय-विक्रय हेर्ु बार्िीर् की
र्यी िी, स्िसके सम्बिंि में पररिादी की ओर से
ददनािंक 23.07.2021, 24.07.2021, 14.11.2021,
18.02.2022,
04.05.2022,
03.08.2022
को
विपक्षीर्ण को विक्रीर् िनरासश के रूप में पैसे
प्रदत्त ककये र्ये, परन्द्र्ु विपक्षीर्ण द्िारा ददनािंक
03.08.2022 को पररिादी की पत्क्नी सुिा पाण्डेय
के पक्ष में विक्रय पत्र ननष्पाददर् नहीिं ककया
र्या। विक्रयपत्र ननष्पाददर् न होने के पचिार््
बैनामा लेखक द्िारा उसे विक्रयपत्र के कार्िार्
थटाम्प के साि, स्िस पर विक्रेर्ा का प्रमाखणर्
िोटो लर्ा हुआ है, परन्द्र्ु विक्रेर्ा के हथर्ाक्षर
नहीिं बनाये र्ये हैं, प्रथर्ुर् ककया र्या है।
पररिादी की ओर से पररिाद किानक के
समिान में प्रथर्ाविर् विक्रयपत्र की मूल प्रनर्
िो मूल थटाम्प सदहर् है स्िस पर पररिादी की
पत्क्नी सुिा पाण्डेय के हथर्ाक्षर ि िोटो लर्े हैं
र्िा एक अन्द्य व्यस्क्र् का िोटो लर्ा है र्िा
उक्र् प्रथर्ाविर् विक्रयपत्र के अिंर् में पररिादी
राकेश कुमार पाण्डेय के पुत्र यश पाण्डेय के
हथर्ाक्षर ि िोटो भी लर्े हुए हैं, को कार्ि
सिंख्या 10 क के रूप में प्रथर्ुर् ककया र्या है।
इसके अनर्ररक्र् पररिादी राकेश कुमार पाण्डेय
की ओर से उसके खार्ा सिंख्या 312378324621
थटेट बैंक सिंख्या के खार्े का थटेटमेंट प्रथर्ुर्
ककया र्या है, स्िसमें ददनािंक 26.07.2021 ि
27.07.2021 को 10-10 लाख रूपये की िनरासश
प्रथर्ुर् ककया िाने का अिंकन है र्िा ददनािंक
11.02.2022
ि
14.02.2022
को
क्रमशः
1500047/-
रूपये
र्िा
300000/-रूपये
आर०टी०िी०एस० के द्िारा विपक्षी रूपेन्द्र ससिंह
ि कोमल ससिंह को प्रेवषर् ककये िाने की प्रविस्ष्ट
भी अिंककर् है। इसेक अनर्ररक्र् ददनािंक
18.02.2022 को 11,50,000 रूपये की िनरासश
प्रेवषर् ककये िाने की पृविस्ष्ठ अिंककर् है। ददनािंक
03.08.2022 को र्ीन लाख रूपये की िनरासश
विपक्षीसिंख्या 3 के पक्ष में प्रेवषर् ककये िाने की
प्रविस्ष्ट भी अिंककर् है। पररिादी की ओर से
अपने पररिाद किानक ि अपने बयान अन्द्र्र्ार्
िारा 200 दिं०प्र०सिंदहर्ा में विपक्षीर्ण सिंख्या 1
ि 2 के प्रापटी डीसलिंर् का काम करने र्िा
उनके कहने पर 10-10 लाख रूपये के दो िेक
विक्रेर्ा विकास शमाा को ददये िाने र्िा
विपक्षीर्ण द्िारा पररिादी को प्रर्ापनेर किौरा
रोड पर 3340 िषा िीट के प्लाट के क्रय हेर्ु
बार्-िीर् करने के पचिार्् िनरासश विपक्षीर्ण
के बर्ाये अनुसार ददये िाने के किन ककये र्ये
हैं, परन्द्र्ु विपक्षीर्ण द्िारा िनरासश प्राप्र् करने
के पचिार्् भी पररिादी के पक्ष में विक्रयपत्र
ननष्पादन की ददनािंक को विक्रयपत्र ननष्पाददर् न
करने के कारण यह पररिाद प्रथर्ुर् ककया र्या
है।

िाना कोर्िाली िनपद इटािा द्िारा
प्रेवषर्
आख्या
अन्द्र्र्ार्
िारा
202(1)
1438 INDIAN LAW REPORTS ALLAHABAD SERIES
दिं०प्र०सिंदहर्ा कार्ि सिंख्या 8 ख में भी विपक्षी
सिंख्या 1 ि 2 द्िारा पररिादी से पैसा के लेनदेन र्िा प्लाट विक्रय के सम्बिंि में बार्-िीर्
होना थिीकार ककया र्या है।

पररिादी के बयान अन्द्र्र्ार् िारा
202 दिं०प्र०सिंदहर्ा ि पुसलस की आख्या अन्द्र्र्ार्
िारा 202 (1) दिं०प्र० सिंदहर्ा र्िा सूिी 9 ख से
प्रथर्ुर् प्रपत्रों के अिलोकन से प्रिम दृष्टया
विपक्षीर्ण द्िारा पररिादी के साि िोखािडी
कर पैसा प्राप्र् ककये िाने के पचिार्् भी
विक्रयपत्र ननष्पाददर् न करने के कारण िारा
420, 406 भा०दिं० सिंदहर्ा के अन्द्र्र्ार् अपराि
बनना प्रिम दृष्टया दसशार् होर्ा है। अर्ः
विपक्षीर्ण अनुि र्ुप्र्ा, अर्ुल र्ुप्र्ा, रूपेन्द्र
ससिंह, कोमल ससिंह अन्द्र्र्ार् िारा 420, 406
भा०दिं० सिंदहर्ा में र्लब ककये िाने योग्य है।"

6. Sri Akash Mishra, learned
counsel for applicants has vehemently
urged that factum of transaction of money
and sale deed is not under much dispute
though
according
to
Complainant
money was paid to one, Vikas Sharma,
who was not proposed as accused in
complaint. Applicants have executed a
sale deed which has not been disputed
as well as there is no challenge to it.
The controversy is with regard to
second sale deed which was not
executed mainly on ground that there
was a dispute with regard to area of
land. Learned counsel submitted that
such dispute is within the realm of civil
dispute. Ingredients of Sections 420 and
406 IPC are not made out. There is no
dishonest
intention
on
behalf
of
applicants nor there is any entrustment
over
any
property
by
applicants.
Applicants are still ready to execute
sale deed of lesser area.

7. Sri Mithilesh Kumar, learned AGA
for State and Sri Rishi Kant Singh
Chauhan, Advocate for Complainant, have
opposed the aforesaid submissions. They
submitted
that
since
inception
of
negotiation applicants have intention to
deceive and despite payment of large
amount,
sale
deed
with
regard
to
corresponding area of land was not
executed and money was also not returned
back, though on basis of record it was
undisputed that no complaint was made
against
Vikash
Sharma,
to
whom
Complainant has paid Rs. 20 lacs, which is
the amount alleged to be not returned.

8. Heard learned counsel for parties
and perused the material available on
record.

9.

Before
adverting
to
rival
submissions it would be relevant to refer
few paragraphs of a recent judgement
passed by Supreme Court in A.M. Mohan
Vs. State Represented by SHO and
another, 2024 SCC OnLine SC 339, as
the facts of said case and discussion on law,
would be relevant for consideration of
present case:-

"9. The law with regard to
exercise of jurisdiction under Section 482
of Cr. P.C. to quash complaints and
criminal proceedings has been succinctly
summarized by this Court in the case of
Indian Oil Corporation v. NEPC India
Limited1 after considering the earlier
precedents. It will be apposite to refer to
the following observations of this Court in
the said case, which read thus:

"12. The principles relating to
exercise of jurisdiction under Section 482
of the Code of Criminal Procedure to
quash complaints and criminal proceedings
have been stated and reiterated by this
7 All. Anuj Gupta & Ors. Vs. State of U.P. & Anr.
1439
Court in several decisions. To mention a
few-Madhavrao
Jiwajirao
Scindia
v.
Sambhajirao Chandrojirao Angre [(1988)
1 SCC 692 : 1988 SCC (Cri) 234], State of
Haryana v. Bhajan Lal [1992 Supp (1)
SCC 335 : 1992 SCC (Cri) 426], Rupan
Deol Bajaj v. Kanwar Pal Singh Gill
[(1995) 6 SCC 194 : 1995 SCC (Cri)
1059], Central Bureau of Investigation v.
Duncans Agro Industries Ltd. [(1996) 5
SCC 591 : 1996 SCC (Cri) 1045], State of
Bihar v. Rajendra Agrawalla [(1996) 8
SCC 164 : 1996 SCC (Cri) 628], Rajesh
Bajaj v. State NCT of Delhi [(1999) 3 SCC
259 : 1999 SCC (Cri) 401], Medchl
Chemicals & Pharma (P) Ltd. v. Biological
E. Ltd. [(2000) 3 SCC 269 : 2000 SCC
(Cri) 615], Hridaya Ranjan Prasad Verma
v. State of Bihar [(2000) 4 SCC 168 : 2000
SCC (Cri) 786], M. Krishnan v. Vijay
Singh [(2001) 8 SCC 645 : 2002 SCC (Cri)
19] and Zandu Pharmaceutical Works Ltd.
v. Mohd. Sharaful Haque [(2005) 1 SCC
122 : 2005 SCC (Cri) 283]. The principles,
relevant to our purpose are:

(i) A complaint can be quashed
where
the
allegations
made
in
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 the case alleged against the
accused. For this purpose, the complaint
has to be examined as a whole, but without
examining the merits of the allegations.
Neither a detailed inquiry nor a meticulous
analysis of the material nor an assessment
of the reliability or genuineness of the
allegations in the complaint, is warranted
while examining prayer for quashing of a
complaint.

(ii) A complaint may also be
quashed where it is a clear abuse of the
process of the court, as when the criminal
proceeding is found to have been initiated
with mala fides/malice for wreaking
vengeance or to cause harm, or where the
allegations are absurd and inherently
improbable.

(iii) The power to quash shall not,
however, be used to stifle or scuttle a
legitimate prosecution. The power should
be used sparingly and with abundant
caution.

(iv) The complaint is not required
to verbatim reproduce the legal ingredients
of the offence alleged. If the necessary
factual foundation is laid in the complaint,
merely on the ground that a few ingredients
have not been stated in detail, the
proceedings
should
not
be
quashed.
Quashing of the complaint is warranted
only where the complaint is so bereft of
even the basic facts which are absolutely
necessary for making out the offence.

(v) A given set of facts may make
out : (a) purely a civil wrong; or (b) purely
a criminal offence; or (c) a civil wrong as
also a criminal offence. A commercial
transaction or a contractual dispute, apart
from furnishing a cause of action for
seeking remedy in civil law, may also
involve a criminal offence. As the nature
and scope of a civil proceeding are
different from a criminal proceeding, the
mere fact that the complaint relates to a
commercial transaction or breach of
contract, for which a civil remedy is
available or has been availed, is not by
itself a ground to quash the criminal
proceedings. The test is whether the
allegations in the complaint disclose a
criminal offence or not.

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
1440 INDIAN LAW REPORTS ALLAHABAD SERIES
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. In
G. Sagar Suri v. State of U.P. [(2000) 2
SCC 636 : 2000 SCC (Cri) 513] this Court
observed : (SCC p. 643, para 8)

"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."

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. Be that as it may."

10. The Court has also noted the
concern with regard to a growing
tendency in business circles to convert
purely civil disputes into criminal cases.
The Court observed that 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. The Court also recorded
that there is an impression that if a person
could somehow be entangled in a criminal
prosecution, there is a likelihood of
imminent settlement. The Court, relying
on the law laid down by it in the case of G.
Sagar Suri v. State of U.P. held that 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. The Court also observed that
though 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
misconceive criminal proceedings, in
accordance with law.

11. This Court, in the case of
Prof.
R.K.
Vijayasarathy
v.
Sudha
Seetharam has culled out the ingredients to
constitute the offence under Sections 415
and 420 of IPC, as under:

"15. Section 415 of the Penal
Code reads thus:

"415. Cheating.-Whoever, by
deceiving any person, fraudulently or
dishonestly induces the person so deceived
to deliver any property to any person, or to
7 All. Anuj Gupta & Ors. Vs. State of U.P. & Anr.
1441
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"."

16. The ingredients to constitute
an offence of cheating are as follows:

16.1. There should be fraudulent
or dishonest inducement of a person by
deceiving him:

16.1.1. The person so induced
should be intentionally induced to deliver
any property to any person or to consent
that any person shall retain any property,
or

16.1.2. The person so induced
should be intentionally induced to do or to
omit to do anything which he would not do
or omit if he were not so deceived; and

16.2. In cases covered by 16.1.2.
above, the act or omission should be one
which caused or is likely to cause damage
or harm to the person induced in body,
mind, reputation or property.

17. A fraudulent or dishonest
inducement is an essential ingredient of the
offence. A person who dishonestly induces
another person to deliver any property is
liable for the offence of cheating.

18. Section 420 of the Penal Code
reads thus:

"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."

19. The ingredients to constitute
an offence under Section 420 are as
follows:

19.1. A person must commit the
offence of cheating under Section 415; and

19.2. The person cheated must be
dishonestly induced to

(a) deliver property to any
person; or

(b)
make,
alter
or
destroy
valuable security or anything signed or
sealed and capable of being converted into
valuable security.

20. Cheating is an essential
ingredient for an act to constitute an
offence under Section 420."

12. A similar view has been taken
by this Court in the cases of Archana Rana
v. State of Uttar Pradesh, Deepak Gaba v.
State of Uttar Pradesh and Mariam
Fasihuddin v. State by Adugodi Police
Station.

13. It could thus be seen that for
attracting the provision of Section 420 of
IPC, the FIR/complaint must show that
the ingredients of Section 415 of IPC are
made out and the person cheated must
have been dishonestly induced to deliver
the property to any person; or to make,
alter or destroy valuable security or
anything signed or sealed and capable of
being converted into valuable security. In
other words, for attracting the provisions
of Section 420 of IPC, it must be shown
that the FIR/complaint discloses:

(i) the deception of any person;

(ii) fraudulently or dishonestly
inducing that person to deliver any
property to any person; and

(iii) dishonest intention of the
accused at the time of making the
inducement." (Emphasis supplied)
1442 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Further, in order to consider the
submission
of
learned
counsel
for
applicants that ingredients of Section 406
IPC are made out or not, it would be
apposite to refer a judgement passed by
Supreme Court in Vijay Kumar Ghai and
others vs. State of West Bengal and others,
(2022) 7 SCC 124 wherein the ingredients
for criminal breach of trust were discussed
and
relevant
paragraphs
thereof
are
mentioned hereinafter:

"27. Section 405 of IPC defines
"Criminal Breach of Trust" which reads as
under: -

"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".

The essential ingredients of the
offence of criminal breach of trust are:-

(1)
The
accused
must
be
entrusted with the property or with
dominion over it,

(2) The person so entrusted must
use that property, or;

(3) The accused must dishonestly
use or dispose of that property or wilfully
suffer any other person to do so in
violation,

(a) of any direction of law
prescribing the mode in which such trust is
to be discharged, or;

(b) of any legal contract made
touching the discharge of such trust.

28. "Entrustment" of property
under Section 405 of the Indian Penal
Code, 1860 is pivotal to constitute an
offence under this. The words used are, ''in
any manner entrusted with property'. So, it
extends to entrustments of all kinds whether
to clerks, servants, business partners or
other persons, provided they are holding a
position
of
''trust'.
A
person
who
dishonestly
misappropriates
property
entrusted to them contrary to the terms of
an obligation imposed is liable for a
criminal breach of trust and is punished
under Section 406 of the Penal Code.

29. The definition in the section
does not restrict the property to movables
or immoveable alone. This Court in R K
Dalmia vs Delhi Administration, (1963) 1
SCR 253 held that the word ''property' is
used in the Code in a much wider sense
than the expression ''moveable property'.
There is no good reason to restrict the
meaning
of
the
word
''property'
to
moveable property only when it is used
without any qualification in Section 405.

30. In Sudhir Shantilal Mehta Vs.
CBI, (2009) 8 SCC 1 it was observed that
the act of criminal breach of trust would,
Interalia mean using or disposing of the
property by a person who is entrusted with
or has otherwise dominion thereover. Such
an act must not only be done dishonestly
but also in violation of any direction of law
or any contract express or implied relating
to carrying out the trust."

11. I have carefully perused the
statement of Complainant which has
referred that Rs. 20 lacs was paid to Vikas
Sharma under negotiation with applicants,
however neither it was adjusted nor a
subsequent sale deed of corresponding area
was executed. The factum of execution of
earlier sale deed was not disputed. Dispute
remains with regard to sale deed which was
7 All. Anuj Gupta & Ors. Vs. State of U.P. & Anr.
1443
though agreed but not executed since a
dispute arose with regard to area of land.

12. As referred above, evidently it is a
case where second round of negotiations of
sale deed were failed and for that a civil
remedy
was
an
appropriate
remedy.
However, instead of approaching Civil
Court, Complainant
has
alleged
that
offences under Sections 420 and 406 IPC
are
committed
by
applicants.
Conspicuously, the person in whose Bank
account Rs. 20 lacs were alleged to be paid,
was not even made accused in complaint.

13. The ingredients of Section 420
IPC, i.e., intention to deceive since
beginning of negotiation or act, even
prima facie is not present in the present
case since during negotiation one sale
deed was admittedly executed and
dispute remained with regard to second
sale deed, so far as area of land is
concerned.
Therefore,
intention
to
deceive since inception does not exist.
The dispute is essentially of in regard to
second sale deed which could not be
executed as there was a dispute of area
of land and failed negotiations in given
facts and circumstances could not make
out a case under Section 420 IPC.

14. So far as offence under Section
406 IPC is concerned, there must be
some entrustment. However, money was
deposited in the Bank account of one,
Vikas Sharma, therefore, allegation of
entrustment, if any, would be against
said person but admittedly said Vikas
Sharma was not arrayed as one of the
proposed
accused
in
complaint.
A
reference that it was paid on instruction
of applicants would itself not make out a
case for not making any allegation
against said Vikas Sharma or entire
responsibility could not be shifted on
applicants and statement also does not
indicate the same.

15. In aforesaid circumstances,
considering that ingredients of Sections
420 and 406 IPC are absent as well as
Complainant has tried to give criminal
colour to a civil dispute, therefore, I find
that it is a fit case where in exercise of
inherent
power
under
Section
482
Cr.P.C. the impugned summoning order
as well as entire proceedings can be
quashed.

16. At this stage, it would be
appropriate
to
mention
following
paragraph of a recent judgment passed
by Supreme Court in Naresh Kumar and
another vs. The State of Karnataka and
another, 2024 INSC 196, that in similar
circumstances inherent power could be
exercised:

"6. In the case of Paramjeet
Batra v. State of Uttarakhand (2013) 11
SCC 673, this Court recognized that
although the inherent powers of a High
Court under Section 482 of the Code of
Criminal Procedure should be exercised
sparingly, yet the High Court must not
hesitate
in
quashing
such
criminal
proceedings which are essentially of a
civil nature. This is what was held:

"12.
While
exercising
its
jurisdiction under Section 482 of the Code
the High Court has to be cautious. This
power is to be used sparingly and only for
the purpose of preventing abuse of the
process of any court or otherwise to secure
ends of justice. Whether a complaint
discloses a criminal offence or not depends
upon the nature of facts alleged therein.
Whether essential ingredients of criminal
1444 INDIAN LAW REPORTS ALLAHABAD SERIES
offence are present or not has to be judged
by the High Court. A complaint disclosing
civil transactions may also have a criminal
texture. But the High Court must see
whether a dispute which is essentially of a
civil nature is given a cloak of criminal
offence. In such a situation, if a civil
remedy is available and is, in fact, adopted
as has happened in this case, the High
Court should not hesitate to quash the
criminal proceedings to prevent abuse of
process of the court."

Relying upon the decision in
Paramjeet Batra (supra), this Court in
Randheer Singh v. State of U.P. (2021) 14
SCC
626,
observed
that
criminal
proceedings cannot be taken recourse to
as a weapon of harassment. In Usha
Chakraborty & Anr. v. State of West
Bengal & Anr. 2023 SCC OnLine SC 90,
relying upon Paramjeet Batra (supra) it
was again held that where a dispute which
is essentially of a civil nature, is given a
cloak of a criminal offence, then such
disputes can be quashed, by exercising the
inherent powers under Section 482 of the
Code of Criminal Procedure."

(Emphasis supplied)

17. In view of above, application is
allowed. Impugned summoning order dated
02.09.2023 as well as entire proceedings in
Complaint Case No. 223 of 2023 (Rakesh
Kumar Pandey vs. Anuj Gupta and others),
under Sections 420, 406 IPC, Police Station
Kotwali, District Etawah, are hereby
quashed.

18. Registrar (Compliance) to take
steps.
----------
(2024) 7 ILRA 1444
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2024
BEFORE
THE HON'BLE ARUN BHANSALI, C.J.
THE HON'BLE VIKAS BUDHWAR, J.

Writ A No. 68817 of 2015

U.O.I. & Ors. ...Petitioners
Versus
Dr. Shiv Poojan R. Singh & Anr.
 ...Respondents

Counsel for the Petitioners:
Sri Saurabh Srivastava, Sri Gyanu Shukla,
Sri Manoj Kumar Singh, Sunil

Counsel for the Respondents:
Sri Ashish Kumar Srivastava, S.C., Sri Sunil

A. Service Law - Pension/Benefits -
Voluntary
retirement
-
CCS
(Pension
Rules), 1972 - Rule 48 -Fundamental tight
56(c) - While the Government reserves its
right to compulsorily retire a Government
servant, even against his wish, there is a
corresponding right of the Government
servant u/Fundamental Right 56(c) to
voluntarily retire from service by giving
the Government three months' notice in
writing.
There
is
no
question
of
acceptance of the request for voluntary
retirement by the Government when the
Government servant exercises his right
under Fundament Right 56(c). (Para 31)

In the present case, neither on the date when
the original applicant applied for voluntarily
retirement i.e. 26.06.2013 nor the effective date
of voluntarily retirement i.e. 30.09.2013, there
was any order of appointing authority either
placing the original applicant under suspension
or any departmental enquiry initiated or
pending. It has come on record that the
departmental charge sheet has been issued on
10.10.2013 i.e. much after the effective date of
voluntarily retirement. (Para 35)

B. Rule 48 of the Rules, 1972 stipulates
that it is the right of the government
servant to claim voluntarily retirement,
however, subject to completion of 30
years of qualifying service and not placed
under suspension. The original applicant has
to his credit 30 years of qualifying service and