# Arun Kumar Mishra & Ors v. State of U.P. & Anr. Opp. Parties - **Citation:** (2020) 12 ILRA 163 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-12-16 - **Case number:** Application U/S 482/378/407 No. 3104 of 2020 - **Bench:** Irshad Ali - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arun-kumar-mishra-ors-v-state-of-u-p-anr-opp-parties-45451 - **Pages:** 3 ## Headnote Criminal Law - Indian Penal Code, 1860- Section 405,Section 409, Code of Criminal Procedure, 1973- Section 482- 164 INDIAN LAW REPORTS ALLAHABAD SERIES Summoning- Compromise- Return of alternative plot- There is sufficient material to establish the payment in pursuance to an agreement to handover the plot on deposit of certain money. The investigating officer upon examination of the totality of the case found that the petitioners have committed breach of trust and after taking money from the complainant, have not provided plot as assured by them- Apparent that harassment has been made to the complainant by committing "breach of trust". If, such a reputed firm is permitted to be involved in harassment of common people, it will ruin the entire society and will demotivate the peoples, who are willing to purchase plots and flats. The terms of compromise which establishes that the petitioners themselves have admitted the crime by making compromise with the complainant to return the alternative plot. Where admittedly the petitioner has taken money from the complainant in pursuance of an agreement and having failed to provide the plot, has thereafter entered into a compromise then despite such compromise the offence of breach of trust u/s 405 of the IPC is made out against the petitioner. Criminal Application accordingly rejected. (Para 8. 9, 10) (E-3) ## Text 12 All. Arun Kumar Mishra & Ors. Vs. State of U.P. & Anr. 163 of domestic violence committed by the respondent: " "Provided that where decree for any amount as compensation or damages has been passed by any court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained int eh Code of civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount, if any, left after such set off." 24. With regard to the said contention of the applicant, it is noticed that the application under Section 12 of the Act has been considered and decided by the learned Magistrate while directing the applicant to provide residence to the respondent No. 2 failing which he has to give an amount of Rs. 4,000/- per month as a measure of interim relief to the respondent No. 2 so that she can find a suitable accommodation/ residence. 25. The maintenance granted under Section 125 Cr.P.C. is different from the relief granted to the respondent No. 2 by means of impugned order and therefore Section 12(2) of the Act is not attracted in the facts of the present case. 26. The order under Section 125 Cr.P.C. and residence order U/S 19 of the Domestic violence Act operate in two different spheres, and grant of maintenance U/S 125 Cr.P.C. cannot limit the grant of relief U/S 19 D.V. Act which provide for residence for the aggrieved person by invoking provision of Section 12(2) of D.V. Act. The arguments of the petitioner is clearly misconceived. Section 12 (2) of the Domestic violence Act would come into play only when the court is considering the application for grant of payment of compensation or damages. While passing an order under Section 19 of D.V. Act, the Magistrate would grant relief envisaged in Sub-Clause (a) to (f) which clearly do not provide for payment of compensation or damages, and therefore the impugned order passed U/s 19 of the Act providing for residency of the aggrieved person cannot be said to be violation of Section 12(2) of the Act. 27. I do not find any infirmity with the impugned order dated 28.09.2020. The present application under Section 482 Cr.P.C. lacks merit and deserves no interference by this Court, therefore, the present application under Section 482 Cr.P.C. is dismissed. ---------- (2020)12ILR A163 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 16.12.2020 BEFORE THE HON'BLE IRSHAD ALI, J. Application U/S 482/378/407 No. 3104 of 2020 Arun Kumar Mishra & Ors. ...Applicants Versus State of U.P. & Anr. ...Opp. Parties Counsel for the Applicants: Rupendra Kumar Porwal, Samir Agrawal, Vivek B. Rai Counsel for the Opp. Parties: G.A. Criminal Law - Indian Penal Code, 1860- Section 405,Section 409, Code of Criminal Procedure, 1973- Section 482- 164 INDIAN LAW REPORTS ALLAHABAD SERIES Summoning- Compromise- Return of alternative plot- There is sufficient material to establish the payment in pursuance to an agreement to handover the plot on deposit of certain money. The investigating officer upon examination of the totality of the case found that the petitioners have committed breach of trust and after taking money from the complainant, have not provided plot as assured by them- Apparent that harassment has been made to the complainant by committing "breach of trust". If, such a reputed firm is permitted to be involved in harassment of common people, it will ruin the entire society and will demotivate the peoples, who are willing to purchase plots and flats. The terms of compromise which establishes that the petitioners themselves have admitted the crime by making compromise with the complainant to return the alternative plot. Where admittedly the petitioner has taken money from the complainant in pursuance of an agreement and having failed to provide the plot, has thereafter entered into a compromise then despite such compromise the offence of breach of trust u/s 405 of the IPC is made out against the petitioner. Criminal Application accordingly rejected. (Para 8. 9, 10) (E-3) (Delivered by Hon'ble Irshad Ali, J.) 1. Heard learned counsel for the petitioners and Sri Rajesh Kumar Singh, learned AGA for the respondent - State. 2. This petition under Section 482 CrPC has been filed challenging the charge sheet and the order of cognizance, whereby summon has been issued against the petitioners. 3. Brief fact of the case is that an agreement was executed between the parties to provide plot and in pursuance thereof certain money was deposited by the complainant, however, the petitioners could not provided the plot as per the agreement and after taking money the FIR was registered against the petitioners under Sections 406, 420, 467, 468, 471, 504, 506, 409 and 34 IPC. The investigating officer submitted charge sheet, wherein sufficient material was found under Section 409 IPC. 4. Assailing the order, submission of learned counsel for the petitioners is that the petitioners entered into a compromise and have returned alternative plot to the complainant, therefore, the entire proceeding is liable to be set-aside in terms of compromise arrived at between the parties. He further submitted that the trial court has not taken cognizance of submission advanced before it and has proceeded to issue summon to the petitioners, therefore, his submission is that the entire proceeding is per-se illegal and is liable to be set-aside. 5. On the other hand, learned AGA - Sri Rajesh Kumar Singh submitted that once an agreement was executed between the parties and in pursuance thereof money was paid to the petitioners and if there is a breach of trust, the petitioners have committed a crime, therefore, in terms of compromise, they are not entitled to get an order from this court. 6. He further submitted that it is a temporary embezzlement of money paid by the complainant. He next submitted that by giving alternative plot after submission of charge-sheet against the petitioners, the crime, which has been committed, cannot be compromised. 7. I have considered the submissions advanced by learned counsel for the parties and perused the material on record. 12 All. Shri Kant Mishra Vs. State of U.P. & Anr. 165 8. On perusal of the charge-sheet, it is reflected that there is sufficient material to establish the payment in pursuance to an agreement to handover the plot on deposit of certain money. The investigating officer upon examination of the totality of the case found that the petitioners have committed breach of trust and after taking money from the complainant, have not provided plot as assured by them. 9. Section 405 of the Indian Penal Code provides as under :- "405. 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 trust'." 9. Looking to the facts and circumstances of the case, it is apparent that harassment has been made to the complainant by committing "breach of trust" and in such circumstances the complainant has lodged the FIR. The petitioners belong to Ansal Group, which is a renowned real estate firm and as per news reportings, it is highlighted that Ansal Group has played fraud on the mass with public and there are so many FIRs lodged against it. If, such a reputed firm is permitted to be involved in harassment of common people, it will ruin the entire society and will demotivate the peoples, who are willing to purchase plots and flats. 10. I have also perused the terms of compromise which establishes that the petitioners themselves have admitted the crime by making compromise with the complainant to return the alternative plot, therefore, this court is of the view that there is no illegality in the order impugned and in submission of charge sheet. 11. The petition lacks merit and is hereby rejected. ---------- (2020)12ILR A165 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 18.11.2020 BEFORE THE HON'BLE ALOK MATHUR, J. Application U/S 482/378/407 No. 4495 of 2018 Sri Kant Mishra ...Applicant Versus State of U.P. & Anr. ...Opp. Parties Counsel for the Applicant: R.N. Shukla, R.M. Tripathi Counsel for the Opp. Parties: Govt. Advocate Criminal Law - Code of Criminal Procedure, 1973- Section 311, Section 482 Cr.Pc- Rejection of application u/s 311 Cr.Pc- Revision- Maintainability of- Order under Section 311 Cr.P.C. is an interlocutory order and therefore against the rejection of an application under Section 311 Cr.P.C., a revision was not maintainable and therefore learned Additional District and Sessions Judge, Pratapgarh has wrongly assumed jurisdiction and exercised the revisional powers under Section 397 Cr.P.C. An order passed u/s 311 of the Cr.Pc, is an interlocutory order and a criminal revision against the said order is not maintainable. Criminal Application allowed. (Para 14) (E3)