# Gaurav Dewan and another v. State of U.P. and others

- **Citation:** (2006) 3 ILRA 1185
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-02-27
- **Case number:** Criminal Misc. Writ Petition No. 10413 of 2005
- **Bench:** Amitava Lala, Shiv Shanker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-dewan-and-another-v-state-of-u-p-and-others-40782
- **Pages:** 4

## Headnote

Constitution of India, Art. 226-Qashing
of
F.I.R.-offence
under
section
420/468/471 I.P.C.-from bare perusal of
allegation-prima-facie case made out-it
is erroneous to assess the material
before conclusion-of investigation-even
under Art. 226 or 482 Cr.P.C. the power
3All] Gaurav Dewan and another V. State of U.P. and others 1185
should be exercised sparingly and in the
rarest of rare case-direction issued to
conclude the investigation within 3
months-till the submission of chargesheet/final report arrest staged.

Held: Para 7, 8 & 9

It is erroneous to assess the material
before it and conclude that the complaint
can not be proceeded with. Although
such order was passed in connection
with an application under Section 482 of
the Code of Criminal Procedure, but in
the cases of quashing of the first
information report much weightage can
be given towards the proceedings of
Section 482 Cr.P.C. than the Article 226
of the Constitution of India.

Therefore, having cumulative effect of
both the judgements first information
report can not be said to be quashed at
this stage. However, in the interest of
justice petitioners can be protected in
the following manner.

The Investigating Officer of Case Crime
No. 853 of 2005, under Sections 420,
467, 468 and 471 I.P.C., Police Station
Kanth, District Moradabad will conclude
the investigation within a period of three
months from the date, on which a
certified copy of this order is presented
before him.
Case law discussed:
2004 SCC (Crl.) 3537
AIR 1992 SC-604

## Text

1184 INDIAN LAW REPORT ALLAHABAD SERIES [2006
record of and performance during the
later years. The record to be so
considered would naturally include the
entries
in
the
confidential
records/Character rolls, both favourable
and adverse. If a government servant is
promoted
to
a
higher
post
notwithstanding the adverse remarks,
such remarks lose their sting, more so, if
the promotion is based upon merit
(selection ) and not upon seniority.

(v)
An
order
of
compulsory
retirement is not liable to be quashed by a
Court merely on the showing that while
passing
it un-communicated
adverse
remarks
were
also
taken
into
consideration. That circumstance by itself
cannot be a basis for interference.

Interference is permissible only on
the grounds mentioned in (iii) above. This
aspect has been discussed in paras 30 to
32 above."

11. The facts on record also do
support the case on the petitioner that the
censure entry dated 25.7.2002 was not
communicated to the petitioner but even if
it is accepted for argument shake that the
said censure entry was communicated to
the petitioner compulsory retirement on
so censure entry is not justified. Thus it is
held that there was no sufficient material
before the Screening Committee to form
an objective opinion that the petitioner
was fit to be compulsorily retired.

12. The next submission of the
petitioner's counsel is that the Screening
Committee
was
also
not
properly
constituted. Reliance has been placed on
the judgment of the learned Single Judge
passed in writ petition No. 7789 of 2004
Naresh Chandra Sharma Versus State
of U.P. & others (supra). In the aforesaid
judgment this Court has held that the
report of the Screening Committee was
vitiated since the District Magistrate who
was the appointing authority has not
participated in the proceedings rather has
only written on the report as "approved".
In the present case the District Magistrate
himself was chairman of the Screening
Committee and had signed the report and
had passed the order for compulsory
retiring the petitioner.

In view of foregoing discussions the
writ petition is allowed. The order dated
31.12.2003 is quashed. The petitioner is
entitled to all consequential benefits.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2006

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SHIV SHANKER, J.

Criminal Misc. Writ Petition No. 10413 of
2005

Gaurav Dewan and another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Vivek Chaudhary

Counsel for the Respondents:
Sri U.N. Shukla
A.G.A.

Constitution of India, Art. 226-Qashing
of
F.I.R.-offence
under
section
420/468/471 I.P.C.-from bare perusal of
allegation-prima-facie case made out-it
is erroneous to assess the material
before conclusion-of investigation-even
under Art. 226 or 482 Cr.P.C. the power
3All] Gaurav Dewan and another V. State of U.P. and others 1185
should be exercised sparingly and in the
rarest of rare case-direction issued to
conclude the investigation within 3
months-till the submission of chargesheet/final report arrest staged.

Held: Para 7, 8 & 9

It is erroneous to assess the material
before it and conclude that the complaint
can not be proceeded with. Although
such order was passed in connection
with an application under Section 482 of
the Code of Criminal Procedure, but in
the cases of quashing of the first
information report much weightage can
be given towards the proceedings of
Section 482 Cr.P.C. than the Article 226
of the Constitution of India.

Therefore, having cumulative effect of
both the judgements first information
report can not be said to be quashed at
this stage. However, in the interest of
justice petitioners can be protected in
the following manner.

The Investigating Officer of Case Crime
No. 853 of 2005, under Sections 420,
467, 468 and 471 I.P.C., Police Station
Kanth, District Moradabad will conclude
the investigation within a period of three
months from the date, on which a
certified copy of this order is presented
before him.
Case law discussed:
2004 SCC (Crl.) 3537
AIR 1992 SC-604

(Delivered by Hon'ble Amitava Lala, J.)

1. In the present case, the petitioners
wanted to get an order of quashing the
F.I.R. dated 29th September, 2005 lodged
as Case Crime No. 853 of 2005, under
Sections 420, 467, 468 & 471 I.P.C.,
Police Station Kanth, District Moradabad
and further incidental prayers as well as
interim order not to arrest the petitioners
during pendency of the writ petition. It is
well known that Section 420 I.P.C. is
made
for
cheating
and
dishonestly
inducing delivery of property. Such
offence
is
cognizable,
non-bailable,
compoundable with permission of the
Court before which any prosecution of
such offence is pending, and triable by
Magistrate of First Class. Sections 467,
468 and 471 I.P.C. are really applicable in
the case of forgery.

2. The case of the complainant being
respondent no. 4, the Secretary of Ganna
Samiti
Ltd.,
Kanth,
in
the
first
information report is that upon purchasing
sugarcane through samiti by the petitioner
company, the petitioners, being Managing
Director and Occupier of the Company,
handed over a cheque amounting to Rs.
3,19,14,000/- for the respective payments.
On presentation to the bank, it was
returned
due
to
insufficient
fund.
According
to
the
complainant,
the
petitioner no. 1, being Managing Director,
knowing
fully
well
that
there
is
insufficient amount in the bank handed
over the cheque. Therefore, such action is
violative of the aforesaid sections.

3. According to us, Section 138 of
the Negotiable Instruments Act, 1881 is
squarely applicable in such a situation.
Section 138 speaks for dishonour of
cheque for insufficiency, etc., of funds in
the account. Such section is as follows:-

"Where any cheque drawn by a
person on an account maintained by him
with a banker for payment of any amount
of money to another person from out of
that account for the discharge, in whole or
in part, of any debt or other liability, is
returned by the bank unpaid, either
because of the amount of money standing
to the credit of that account is insufficient
1186 INDIAN LAW REPORT ALLAHABAD SERIES [2006
to honour the cheque or that it exceeds the
amount arranged to be paid from that
account by an agreement made with that
bank, such person shall be deemed to
have committed an offence and shall,
without prejudice to any other provision
of
this
Act,
be
punished
with
imprisonment for a term which may be
extended to two years, or with fine which
may extend to twice the amount of the
cheque, or with both:

Provided that nothing contained in
this section shall apply unless-

(a) the cheque has been presented to
the bank within a period of six months
from the date on which it is drawn or
within
the
period
of
its
validity,
whichever is earlier;

(b) the payee or the holder in due
course of the cheque, as the case may be,
makes a demand for the payment of the
said amount of money by giving a notice
in writing, to the drawer of the cheque,
within thirty days of the receipt of
information by him from the bank
regarding the return of the cheque as
unpaid; and

(c) the drawer of such cheque fails to
make the payment of the said amount of
money to the payee or as the case may be,
to the holder in due course of the cheque
within fifteen days of the receipt of the
said notice.

Explanation.--For the purpose of this
section, "debt or other liability" means a
legally enforceable debt or other liability."

4. Therefore, the aforesaid section
under the Negotiable Instruments Act,
1881 is a special Act when Section 420 of
the Indian Penal Code is a general Act. It
is well known that special prevails over
the general. Therefore, in such situation,
like the above, Section 138 of the
Negotiable Instruments Act is desirably
applicable.
In
any
event,
presently
situation is different. The petitioners
admittedly
paid
the
amount
of
Rs.3,19,14,000/-,
which
has
been
recorded under an order of the Division
Bench dated 18th October, 2005.

5. Petitioners contended that they
have not violated the order of the Court
and the cheque was given as a security in
connection with the money to be paid
pursuant to an order of the Court. The
petitioners further contended that the first
information report was made with a
malafide intention. Submitting of a
cheque in the bank in such situation is
nothing but a pressure tactics upon the
petitioners. No case has been formed
under Sections 467, 468 and 479 I.P.C.

6. Two judgements were cited by the
respective parties in respect of quashing
of the first information report. The
petitioners have cited a decision in
connection with AIR 1992 SC 604 (State
of Haryana and others Vs. Ch. Bhajan
Lal and others) to establish that in view
of the aforesaid circumstances the first
information report should be quashed.

7. According to us, the Supreme
Court in such judgement specifically held
that power of the High Court either under
Article 226 of the Constitution of India or
under Section 482 of the Code of
Criminal Procedure should be exercised
sparingly and that too in the rarest of rare
cases. According to us, a first information
report has been lodged and the proceeding
was initiated. Whether the proceeding is
3All] Noor Ahmad and another V. Iftikhar Uddin 1187
rightly initiated or not, can not be
germane in a situation where payment has
already
been
made.
Therefore,
the
petitioners have acted upon on the basis
of the first information report, which is
not only related to Section 420 I.P.C.
alone but also under Sections 467, 468
and 479 I.P.C. It is to be remembered that
in a judgement reported in 2004 SCC
(Cri) 353 (State of M.P. Vs. Awadh
Kishore Gupta and others) again the
Supreme Court held that it is not proper
for the High Court to analyse the case of
the complainant in the light of all
probabilities
in
order
to
determine
whether
a
conviction
would
be
sustainable and on such premises, arrive
at a conclusion that the proceedings are to
be quashed. It is erroneous to assess the
material before it and conclude that the
complaint can not be proceeded with.
Although such order was passed in
connection with an application under
Section 482 of the Code of Criminal
Procedure, but in the cases of quashing of
the
first
information
report
much
weightage can be given towards the
proceedings of Section 482 Cr.P.C. than
the Article 226 of the Constitution of
India.

8. Therefore, having cumulative
effect of both the judgements first
information report can not be said to be
quashed at this stage. However, in the
interest of justice petitioners can be
protected in the following manner.

9. The Investigating Officer of Case
Crime No. 853 of 2005, under Sections
420, 467, 468 and 471 I.P.C., Police
Station Kanth, District Moradabad will
conclude the investigation within a period
of three months from the date, on which a
certified copy of this order is presented
before him. The petitioners are directed to
co-operate with the Investigating Officer
in all possible manner. If the Investigating
Officer or informant found himself
aggrieved
due
to
falsification,
misstatement, fraud, non-cooperation with
the Investigating Officer or any other
reasons whatsoever relevant for the
purpose, he is at liberty to apply for
recalling/variation/ vacating/ modification
of the order. However, the petitioners will
not be arrested in the above mentioned
case crime number till the submission of
the charge-sheet/final report, if any.

10. Accordingly, the writ petition
stands disposed of.

However, no order is passed as to
cost.

 Petition Disposed of.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2006

BEFORE
THE HON'BLE S.P. MEHROTRA, J.

Second Appeal No. 3330 of 1982

Noor Ahmad and another ...Defendant-

 Appellants
Versus
Iftikhar Uddin ...Plaintiff-Respondent

Counsel for the Appellants:
Sri Neeraj Agarwal
Sri J.N. Singh
Sri Anil Shukla
Sri N.K. Srivastava

Counsel for the Respondent:
Sri M.A. Zaidi

Code of Civil Procedure Order XXIII-rule3-Compromise-in
pending
Second
Appeal-both
parties
jointly
moved