# Govind Chandra Gupta v. State of U.P. & Anr Opp. Parties

- **Citation:** (2014) 1 ILRA 386
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-02-26
- **Case number:** Criminal Misc. Application No. 13149 of 2013
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/govind-chandra-gupta-v-state-of-u-p-anr-opp-parties-42846
- **Pages:** 3

## Headnote

Cr.P.C.
Section-482-Summoning
orderoffence under Section 420 IPC-complainant
works
under
contract-amount
of
Rs.
1,19,828/-found due-non payment thereofon demand-the accused persons ousted the
complainant from the office-held-dishonest
intention on part of accused not existed-in
absence of essential element of offence
under section 420 IPC-summoning order
amount
to
abuse
process
of
Courtproceeding of complainant case including
summoning
order
quashed.
1 All] Govind Chandra Gupta Vs. State of U.P. & Anr.
387
Held: Para-6
It is necessary to show that at the time of
making promise he has fraudulent or
dishonest intention to deceive or to induce
person so deceived to do something which he
would otherwise not do. It was observed that
such a culpable intention right at the time of
entering into an agreement cannot be
presumed merely from his failure to keep the
promise subsequently. In the instant case it is
not established, even prima facie, that there
existed dishonest intention on the part of the
accused when the contract was entered into
between
the
department
and
the
complainant.
Accordingly,
the
essential
ingredient for commission of an offence
punishable under Section 420 IPC is not
disclosed.

Case Law discussed:
(2010)10 SCC 361

## Text

386 INDIAN LAW REPORTS ALLAHABAD SERIES

4. While assailing the impugned order,
learned counsel for the petitioners contends
that the order impugned has been passed
against a dead person. In the submission of
learned counsel for the petitioners, the
petitioners' father, against whom proceeding
was initiated, has already expired in January,
2010 and the order has been passed in
November, 2010. It is settled that the order
against the dead person is nullity and void
abinitio. The view taken by me finds support
from the following authorities on the point.

5. The Apex Court in the case of
Leelawati Bai Vs. State of Bombay, A.I.R.
1957, Pae 521 has held that the order passed
against the dead person is a complete nullity.

6. In A.I.R. 2001, Supreme Court,
2003, Amba Bai and others Vs. Gopal and
others, the Apex Court has held as under:

"As the judgment in the Second Appeal
was passed without the knowledge that the
appellant had died, the same being a judgment
passed against the dead person is a nullity."

7. In T.Gnanavel and T.S.Kanagaraj
and another reported in 2009(75) ALR
515, the Apex Court has taken the same
view by observing as under:-

"19. For the reasons aforesaid, we are of
the opinion that the High Court had rightly
intercepted the provision of Order XXII, Rule
4(4) of the C.P.C. and accordingly held that the
decree passed by the Trial Court on20th of
December, 2002, in O.S. No.3946 of 1999 was
a nullity in the eye of law as the defendant had
died during the pendency of the suit for specific
performance of the contract for sale and no
exemption was sought at the instance of the
plaintiff/appellant to bring on record the heirs
and legal representatives of the defendant
before the judgment was pronounced."

8. This Court also in the case of
Subhash Chandra and another Vs. Dy.
Director of Consolidation, Jaunpur and others
2013 (4) AWC 3770, has held that order
passed against the dead person is a nullity.

9. Taking note of the fact that the
petitioners'
father,
against
whom
the
proceeding was initiated, has already died,
when the impugned order was passed. The
impugned order dated 27.11.2010 is hereby
quashed. The writ petition succeeds and is
allowed. However this order will not preclude
the respondents to pass fresh order in
accordance with law.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 26.02.2014

BEFORE
THE HON'BLE MANOJ MISRA, J.

Criminal Misc. Application No. 13149 of 2013

(U/s 482 Cr.P.C.)

Govind Chandra Gupta.... .Applicants
Versus
State of U.P. & Anr..... Opp. Parties

Counsel for the Petitioner:
Sri Vijay Shankar Mishra

Counsel for the Respondents:
A.G.A., Sri Radhey Shyam, Sri Rajesh Kumar

Cr.P.C.
Section-482-Summoning
orderoffence under Section 420 IPC-complainant
works
under
contract-amount
of
Rs.
1,19,828/-found due-non payment thereofon demand-the accused persons ousted the
complainant from the office-held-dishonest
intention on part of accused not existed-in
absence of essential element of offence
under section 420 IPC-summoning order
amount
to
abuse
process
of
Courtproceeding of complainant case including
summoning
order
quashed.
1 All] Govind Chandra Gupta Vs. State of U.P. & Anr.
387
Held: Para-6
It is necessary to show that at the time of
making promise he has fraudulent or
dishonest intention to deceive or to induce
person so deceived to do something which he
would otherwise not do. It was observed that
such a culpable intention right at the time of
entering into an agreement cannot be
presumed merely from his failure to keep the
promise subsequently. In the instant case it is
not established, even prima facie, that there
existed dishonest intention on the part of the
accused when the contract was entered into
between
the
department
and
the
complainant.
Accordingly,
the
essential
ingredient for commission of an offence
punishable under Section 420 IPC is not
disclosed.

Case Law discussed:
(2010)10 SCC 361

(Delivered by Hon'ble Manoj Misra, J.)

1. Heard Sri Rajesh Kumar, learned
counsel for opposite party no. 2 and learned
AGA for the State.

2. By the present application u/s 482
Cr.P.C., the applicant has sought for
quashing of the proceedings of Complaint
Case No. 726 of 2011 pending in the
court of Judicial Magistrate, Qayamganj,
District Farrukhabad, under Section 420
IPC relating P.S. Kotwali Qayamganj,
District Farrukhabad. The applicant has
also
prayed
for
quashing
of
the
summoning order dated 26.7.2012 passed
by the aforesaid court.

3. According to the complaint case
(annexure no. 1 to the application), the
allegation in nut shell is that under a works
contract with the Irrigation Department,
whose officer is the accused (applicant), the
complainant supplied goods (being machine,
etc.) and completed various formalities, but
his final bill payment of Rs. 1,19, 828/- was
not being made on account of which he has
suffered mental agony as also financial loss.
In the statement recorded under Section 200
Cr.P.C. (annexure no. 2 to the application) it
has been stated that when the complainant
demanded for payment, the accused shouted
at him and therefore, it appears that the
accused has turned dishonest. In the statement,
Rs. 1,05, 250/- has been shown to be due to
the complainant. The court below, on the
aforesaid allegations summoned the accused
under Section 420 IPC.

4. The submission of learned counsel
for the applicant is that no offence punishable
under Section 420 IPC is made out inasmuch
as there is no allegation in the complaint that
there was any dishonest intention from the
very beginning, which is an essential
ingredient for an offence punishable under
Section 420 IPC. It has been submitted that
even assuming that money required to be paid
under the agreement was not paid to the
contractor (complainant), it cannot be said that
there was dishonest intention on the part of the
accused from the very beginning that is since
the time of entering into works contract. It has
thus been submitted that no offence
punishable under Section 420 IPC is made
out. It has further been submitted that in
absence
of
any
material
showing
misappropriation of fund, it cannot be said
that the applicant committed any offence,
particularly when the allegation is not that the
applicant made any false promise at the time
of entering into the alleged contract.

5. Per contra, learned counsel for the
complainant submitted that from the complaint
allegations it is clear that the complainant was
entitled to a sum of Rs. 1,19,828/- from the
department but despite all the formalities
having been completed, the amount was not
paid, therefore, there existed dishonest intention
on the part of the applicant.
388 INDIAN LAW REPORTS ALLAHABAD SERIES

6. Having considered the submissions
of learned counsel for the parties and on
perusal of record, this Court is of the view
that from a perusal of the complaint as also
the statement recorded in support thereof, it
is not established, even prima facie, that there
existed dishonest intention on the part of the
accused from the very beginning that is from
the stage when the work contract was entered
into between the department and the
complainant. Mere failure to fulfill a promise
cannot be a ground to draw proceedings for
prosecution under Section 420 I.P.C. The
essential ingredient for an offence punishable
under Section 420 IPC is dishonest
misrepresentation on the part of the accused
at the time of making promise. In the case of
V.P. Srivastava Vs. Indian Explosives Ltd.
(2010) 10 SCC 361, the Apex Court held
that mere failure to perform the promise, by
itself is not enough to hold a person guilty of
cheating. It is necessary to show that at the
time of making promise he has fraudulent or
dishonest intention to deceive or to induce
person so deceived to do something which he
would otherwise not do. It was observed that
such a culpable intention right at the time of
entering into an agreement cannot be
presumed merely from his failure to keep the
promise subsequently. In the instant case it is
not established, even prima facie, that there
existed dishonest intention on the part of the
accused when the contract was entered into
between the department and the complainant.
Accordingly, the essential ingredient for
commission of an offence punishable under
Section 420 IPC is not disclosed.

7. In view of the above, proceedings
against the applicant amount to abuse of
process of court and to secure the interest of
justice, the same deserves to be quashed.

8. The application is allowed. The
proceedings of complaint case no. 726 of
2011 pending in the court of Judicial
Magistrate, Qayamganj, district Farrukhabad
as also the summoning order dated 26.7.2012
summoning the applicant under Section 420
IPC are hereby quashed.
--------