# Jai Prakash Gupta v. State of U.P. & Anr

- **Citation:** (2021) 2 ILRA 637
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Case number:** Application U/S 482 Cr.P.C. No. 36722 of 2016
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-gupta-v-state-of-u-p-anr-46859
- **Pages:** 17

## Headnote

Law-Suit
for
permanent
injunction, cancellation of will deed and
mutation proceeding pending-High court's
direction to frame charges expeditiously
638 INDIAN LAW REPORTS ALLAHABAD SERIES
and conclude Trial -merely pendency of
civil suit -not a case for quashing of
criminal proceedings.

Application dismissed. (E-7)

List of Cases cited: -

## Text

_Characters 0–39,996 of 57,896. This is a partial read: ask again with offset=39996 for what follows._

2 All. Jai Prakash Gupta Vs. State of U.P. & Anr.
637
F.I.R., was lodged on 06.07.2005 and
charge sheet has been filed after a lapse of
5 years i.e. on 05.04.2010. It is thus, argued
that as per settled principles of law of
Hon'ble Apex Court, reported in AIR 2008
SC 3077 in the matter of Pankaj Kumar Vs.
State of Maharastra in which, it has been
held that such prolonged investigation
which is not attributable to the applicant
and taking note of the fact, the proceedings
were quashed in the aforesaid case. It is
thus contended that in the present matter
charge sheet has been filed after 5 years,
which is liable to be quashed by this Court.

Issue notice to the opposite party
no.2 returnable within a period of four
weeks. Steps be taken within a week.

Learned A.G.A. prays for and is
granted four weeks' time for filing counter
affidavit. Opposite party no.2 may also file
counter affidavit within the same period.
As prayed by learned counsel for the
applicant, two weeks, thereafter, is granted
for filing rejoinder affidavit.

List immediately after expiry of
the aforesaid period.

Till the next date of listing, no
coercive action shall be taken against the
applicant in the aforesaid case."

34. Similar orders came to be passed
in respect of other co-accused persons. It
appears that the trial did not proceed
thereafter. The trial court vide order dated 3
March 2020, however, summoned the
applicant/accused to face trial pursuant to
the direction of the Supreme Court in
Asian Resurfacing of Raod Agency Pvt.
Ltd. v. CBI18. Thereafter, the applicants
are pressing the instant petition.

35. From the facts narrated herein
above, it is evident that the delay, if any,
has
been
caused
by
the
applicants
themselves, and the fault cannot be
attributed to the prosecution of having
unnecessarily/ deliberately caused delay in
pursing the prosecution. The trial has not
proceeded after the stage of cognizance as
restrain orders were operating and the
accused/applicants have not submitted to
the
trial.
The
delay
perse,
in
the
circumstances, has not violated the rights of
the applicants to speedy trial.

36. The applications being devoid of
merit is, accordingly, rejected.

37. The applicants to surrender before
the trial court within three weeks from date.
The trial court shall make an endevour to
expedite the proceedings and conclude the
trial, at the earliest possible, without
granting unnecessary adjournment to either
of the parties, provided there is no other
legal impediment.
----------
(2021)02ILR A637
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Application U/S 482 Cr.P.C. No. 36722 of 2016

Jai Prakash Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajesh Yadav

Counsel for the Opposite Parties:
A.G.A., Sri Kshitij Shailendra

Criminal
Law-Suit
for
permanent
injunction, cancellation of will deed and
mutation proceeding pending-High court's
direction to frame charges expeditiously
638 INDIAN LAW REPORTS ALLAHABAD SERIES
and conclude Trial -merely pendency of
civil suit -not a case for quashing of
criminal proceedings.

Application dismissed. (E-7)

List of Cases cited: -

1. 'Prof R.K. Vijayasarathy & anr. Vs Sudha
Seetharam & anr., reported in (2019) 16 SCC 739.

2."P. Swaroopa Rani Vs M. Hari Narayanan @ Hari
Babu", 2008(72) ALR 171 (SC).

3. "Syed Askari Hadi Ali Angustine Imam & anr. Vs
St. (Delhi Administration and another)", (2009) 5
SCC 528.

4. "M.S. Sheriff & P.C. Damodar Nair Vs. St. of
Mad.", AIR 1954 SC 397.

5. "Kamala Devi Agarwal Vs St. of W.B.", AIR 2001
SC 3846.

6. "M. Krishnaan Vs Vijay Singh & anr.", AIR 2001
SC 3014.

7. "Vishnu Dutt Sharma Vs Daya Sapra", 2009(4)
AWC 3405 (SC).

8. "Trisuns Chemical Industry Vs Rajesh Agarwal &
ors.", AIR 1999 SC 3499.

9. "Tapas Adhikri & ors. Vs St. of U.P. & ors.",
2009(5) ADJ 649.

10. "Sharad Agrawal Vs St. of U.P. & ors.", in
Criminal Misc. Application No.35595 of 2019

11. "M.S. Sheriff & P.C. Damodar Nair Vs St. of
Mad.", AIR 1954 SC 397

12. "Lal Muni Devi (Smt.) Vs St. of Bih., (2001) 2
SCC 17

13."G. Sagar Suri Vs St. of U.P.", AIR 2000 SC 754;

14. "M/s. Indian Oil Corporation Vs M/s NEPC India
Ltd.", AIR 2006 SC 2780

15."Mohammed Ibrahim & ors. Vs St. of Bih. &
anr.", (2009) 8 SCC 751

16. 'Sardool Singh Vs Nasib Kaur', 1987 Supp SCC
146.

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Sri Rajesh Yadav, learned
counsel for the applicant and Sri Kshitiz
Shailendra, learned counsel for the opposite
party no.2 and learned AGA appearing for
the State and perused the material brought
on record.

2. This application under Section 482
of the Code of Criminal Procedure
(Cr.P.C.) has been filed with prayer to
quash the entire proceeding of Criminal
Case No.16323 of 2016(State Vs. Jai
Prakash Gupta and others), pending in the
court
of
Additional
Chief
Judicial
Magistrate, Court No.3, Moradabad, under
Sections 420, 467, 468, 471, IPC, arising
out of Case Crime No. 743(wrongly typed
as 747) of 2015, Police Station Majhola,
District Moradabad. Further prayer is to
quash the charge-sheet dated 15.07.2016
and cognizance order dated 01.10.2016
passed in the said case.

3. Briefly stated the facts of the case
as per the pleadings exchanged in the case,
are that one Ashwani Kumar Bansal, father
of opposite party no.2 is said to have
executed an unregistered will in favour of
Jai Prakash Gupta, the applicant on
25.07.2007, which was later on registered
on 15.10.2013, under Section 40 of the
Indian Registration Act, before the SubRegistrar, Tehsil Tanda, District Rampur.
On the basis of the said will mutation
proceedings were initiated by the applicant
in
which
the
Tehsildar
(Judicial),
Moradabad, passed order dated 30.09.2015
in his favour and the Khatauni of the
concerned Khata was corrected by mutating
the name of the applicant. The opposite
2 All. Jai Prakash Gupta Vs. State of U.P. & Anr.
639
party no.2 challenged the order dated
30.09.2015,
in
Revision
No.C20151300001638, under Section 219 of
U.P. Land Revenue Act and in the said
revision the order dated 30.09.2015 was
set-aside by the Additional Commissioner,
Moradabad Division, Moradabad by order
dated 08.09.2016. The Revision No.2098 of
2016 field by the applicant, before the
Board of Revenue, challenging the order
dated 08.09.2016 was dismissed by order
dated 10.08.2017. The applicant filed Writ
B No.4068 of 2018, and it is the case of the
opposite party no.2 that although he had
field the caveat, but ignoring the caveat, the
petition was filed, in which misleading
arguments were advanced. The interim
order dated 25.05.2018 was passed, but a
perusal thereof shows that the applicant
represented before this Court in the writ
petition, that Ashwani Kumar Bansal was
the father of the applicant, whereas, it is
submitted that the applicant was his servant
and it was so mentioned in the alleged will
itself. The will deprived all the legal heirs
of the property and was in favour of the
servant. The opposite party no.2 is said to
have filed counter affidavit in the writ
petition which matter is said to be pending.

4. Ankush Bansal son of late Ashwani
Kumar Bansal alongwith his mother
(widow of Ashwani Kumar Bansal) filed
Original Suit No.377 of 2015(Smt. Prabha
Bansal and others Vs. Jai Prakash Gupta
and others) against the applicant, for a
decree of permanent injunction with respect
to the land of Gata No.720, area 1.497
hectares, subject matter of the will, to
restrain the defendants 1 and 2 therein from
transferring the said land and from
interfering in the possession of the
plaintiffs of that suit. The opposite party
no.2 was also impleaded as Performa
defendant no.3, since he was not available,
but the suit was filed also for his interest.
The learned Civil Judge (Junior Division),
Moradabad
granted
an
ad-interim
temporary injunction by order dated
14.10.2015.

5. A suit being Original Suit No.311
of 2016 has also been filed by the opposite
party no.2 and others, challenging the will
in question which suit has been connected
with Original Suit No.377 of 2015 and is
pending before the civil court concerned.

6. The opposite party no.2 lodged first
information report in Case Crime No.0743
dated 02.11.2015, under Sections 420, 467,
468, 471, IPC against the applicant and two
others, inter-alia on the averments that after
the death of Ashwani Kumar Bansal on
10.02.2008, the names of his legal heirs,
the opposite party no.2, his brother and
mother was recorded in the Khatauni in the
year 2009. The applicant-accused no.1 with
two other accused persons to grab the
valuable land of the informant prepared the
forged will dated 25.07.2007, in which the
other co-accused persons were made the
witnesses, giving wrong address of the
father of the informant at Tanda, Rampur,
whereas he never resided at Tanda,
Rampur. The said will was got registered
on 15.11.2013, whereas the father died in
the year 2008 and on the basis of the said
forged will the order of mutation was
obtained ex-parte without any notice to the
legal heirs. The informant came to know
about the said will and the forgery when
the applicant made efforts to sell the land to
one Surajpal.

7. The FIR was challenged in
Criminal Misc. Writ Petition No.27751 of
2015, in which by order dated 24.11.2015
passed by this Court, the arrest of the
applicant was stayed till submission of the
640 INDIAN LAW REPORTS ALLAHABAD SERIES
police report under Section 173(2) Cr.P.C.
After investigation, the investigating officer
submitted
charge-sheet
against
the
applicant and the other co-accused persons
under Sections 420, 467, 468, 471, IPC, on
15.07.2016, upon which the Magistrate
took cognizance by order dated 01.10.2016.
The present petition under Section 482
Cr.P.C. has been filed with the prayer to
quash the said charge-sheet, the order of
cognizance and the proceedings of the
Criminal Case No.16323 of 2016.

8. Learned counsel for the opposite
party no.2 has pointed out that the opposite
party no.2 filed application under Section 482
Cr.P.C. No.44523 of 2018(Ambuj Bansal Vs.
State of U.P. and 3 others), which application
was disposed of by order dated 10.12.2018
with a direction to the court below to secure
the presence of the accused persons and
frame charges, expeditiously, preferably
within a period of three months from the date
of production of a certified copy of that order,
before the Magistrate concerned.

9. It has been stated in the counter
affidavit that the applicant was released on
bail by order dated 09.03.2018 passed by this
Court, in Criminal Misc. Bail Application
No.19625 of 2017. The opposite party no.2
filed Criminal Misc. Bail Cancellation
Application No.2224 of 2018, which was
disposed of by order dated 15.10.2009 and
thereby the trial court was also directed to
conclude the trial of the case according to
Section 309 Cr.P.C. on day to day basis, if
there was no legal impediment.

10. During arguments, learned counsel
for the opposite party no.2 pointed out that
the trial of the criminal case is going on with
a rapid pace pursuant to the orders of this
Court; the witnesses have already been
examined and trial is at the stage of Section
313 Cr.P.C.

11. Learned counsel for the applicant
submitted that the opposite party no.2 filed
application under Section 482 Cr.P.C.
No.44523 of 2018, without disclosing the
correct facts and consequently the ex-parte
order dated 10.12.2018, to expedite the trial
was passed. He has further submitted that the
opposite party no.2 again lodged a first
information report in Case Crime No.314 of
2018, under Sections 420, 467, 468 and 471
IPC, at Police Station Majhola, in which also
the charge-sheet was filed, against which the
applicant field Application under Section 482
Cr.P.C. No.38662 of 2018, in which this
Court by order dated 20.12.2018, stayed
further proceeding of Case No.7669 of 2018,
arising out of Case Crime No.314 of 2018.

12. Be that as it may, from the facts as
narrated by the applicant and the opposite
party no.2 it is evident that in Application
under Section 482 Cr.P.C. No.44523 of
2018, this Court by order dated 10.12.2018
has issued direction to the court below to
secure the presence of the accused and
frame charges expeditiously, within the
time stipulated in that order. It is also
evident that in Criminal Misc. Bail
Cancellation Application No.2224 of 2018,
there is direction to the trial court to
conclude the trial of the case according to
Section 309 Cr.P.C. on day to day basis, if
there was no legal impediment, vide order
dated
15.10.2009.
Nothing
has
been
brought on record, nor even argued, that
any application or any proceeding against
the aforesaid orders dated 10.12.2018 and
15.10.2009 was taken by either of the
parties for recall or setting aside of the said
orders. Those orders, stand even today, as
per the submissions advanced.
2 All. Jai Prakash Gupta Vs. State of U.P. & Anr.
641

13. Learned counsel for the applicant
submitted that in view of the pendency of
civil suits, one for permanent injunction
and the other for cancellation of the will
deed, as well as the proceedings for
mutation on the basis of will at the stage of
writ petition, the initiation of the criminal
proceedings in pursuance of the first
information report, is an abuse of the
process of the Court and both the
proceedings Civil and Criminal cannot go
simultaneously. He has submitted that the
dispute is predominantly a civil dispute and
so long as the document i.e. the will, is not
decided to be forged by the civil court, the
criminal persecution could not be lodged.
The civil dispute is being given the color of
the criminal dispute. On this ground,
challenge has been made to the chargesheet as well as the proceedings of the
criminal case. Learned counsel for the
applicant has placed reliance on the
judgment of Hon'ble the Supreme Court, in
the case of ''Prof R.K. Vijayasarathy and
Another Vs. Sudha Seetharam and
another', reported in (2019) 16 SCC 739.

14. Per contra, learned counsel for the
opposite party no.2 submitted that the civil
proceedings and the criminal proceedings
can go on simultaneously. The criminal
proceedings are to be given primacy or
preference, over civil proceedings. Merely
because, the civil proceedings are pending,
the criminal proceedings cannot be setaside or quashed. He has placed reliance on
the following judgments in support of his
submissions:-

1. "P. Swaroopa Rani Vs. M.
Hari Narayanan @ Hari Babu", 2008(72)
ALR 171 (SC).

2.
"Syed
Askari
Hadi
Ali
Angustine Imam and another Vs. State
(Delhi Administration and another)",
(2009) 5 SCC 528.

3.
"M.S.
Sheriff
and
P.C.
Damodar Nair Vs. State of Madras", AIR
1954 SC 397.

4. "Kamala Devi Agarwal Vs.
State of West Bengal", AIR 2001 SC 3846.

5. "M. Krishnaan Vs. Vijay
Singh and another", AIR 2001 SC 3014.

6. "Vishnu Dutt Sharma Vs.
Daya Sapra", 2009(4) AWC 3405 (SC).

7. "Trisuns Chemical Industry
Vs. Rajesh Agarwal and others", AIR
1999 SC 3499.

8. "Tapas Adhikri and others Vs.
State of U.P. and others", 2009(5) ADJ
649.

9. "Sharad Agrawal Vs. State of
U.P. and others", in Criminal Misc.
Application No.35595 of 2019, decided on
25.09.2019, passed by this Court.

15. Learned AGA submitted that the
civil and criminal proceedings can go on
simultaneously and the pendeny of the civil
suit cannot be a bar to the institution of the
criminal proceeding, if, prima-facie, a case
for commission of offence is made out on
the averments made in the FIR or
complaint and consequently on the ground
of the dispute being pending in the Civil
Court or before Revenue Court, the
criminal proceedings are not required to be
quashed.

16. I have considered the submissions
advanced by the learned counsel for the
applicant, learned counsel for the opposite
party no.2 and the learned AGA and have
also perused the material brought on
record.

17. In view of the submissions
advanced by the learned counsel for the
642 INDIAN LAW REPORTS ALLAHABAD SERIES
parties, the following points arise for
consideration:-

(i) Whether the civil and criminal
proceedings can simultaneously go on or in
view of pendency of civil proeedings, the
criminal proceedings are to be quashed ?

(ii) Whether in the present case,
in view of the pendency of the civil suits for
permanent
injunction;
and
also
for
cancellation of the will; the criminal
proceedings, in question, are liable to be
quashed.?

18. Taking the first point, first, to
answer the same this Court proceeds to
consider some of the judgments on the
point in issue as hereinafter.

19. In the case of "M.S. Sheriff and
P.C.
Damodar
Nair
Vs.
State
of
Madras",
AIR
1954
SC
397,
the
Constitution Bench of the Hon'ble Supreme
Court held that as between the civil and the
criminal proceedings, the criminal matters
should be given precedence, however,
observing that no hard and fast rule can be
laid down. It was further held that the
possibility of conflicting decisions in the
civil and criminal courts was not a relevant
consideration
but,
the
only
relevant
consideration
was
the
likelihood
of
embarrassment. Another factor, which
weighed was that a civil suit often drags for
years and it was undesirable that a criminal
prosecution should wait till everybody had
forgotten about the crime. The public
interest demanded that the criminal justice
should be swift and sure. The guilty should
be punished while the events are still fresh
in the public mind and the innocent should
be absolved as early as is consistent with a
fair and impartial trial. It would be
undesirable to let things slide till memories
have grown too dim to trust. It was also
held that special considerations obtaining in
a particular case may make some other
course, more expedient, and just. An
example was given that the civil case or the
other criminal proceeding may be so near
to its end, as to make it inexpedient to stay
it, in order to give precedence to the other
proceeding.

20. In M.S. Sheriff (Supra) the
proceedings of the civil suits were stayed
till the finalization of criminal proceedings.
It is relevant to reproduce paragraph nos.14
to 16 of M.S. Sheriff (Supra) as under:-

"14.We were informed at the
hearing that two further sets of proceedings
arising out of the same facts are now
pending against the appellants. One is two
civil suits for damages for wrongful
confinement. The other is two criminal
prosecutions under S. 344. I.P.C. for
wrongful confinement, one against each
Sub-Inspector. It was said that the
simultaneous prosecution of these matters
will embarrass the accused. But after the
hearing
of
the
appeal
we
received
information
that
the
two
criminal
prosecutions have been closed with liberty
to file fresh complaints when the papers are
ready, as the High Court records were not
available on the application of the accused.
As these prosecutions are not pending at
the moment, the objection regarding them
does not arise but we can see that the
simultaneous prosecution of the present
criminal proceedings out of which this
appeal arises and the civil suits will
embarrass the accused. We have therefore
to determine which should be stayed.

15.As between the civil and the
criminal proceedings we are of the opinion
that the criminal matters should be given
precedence. There is some difference of
opinion in the High Courts of India on this
2 All. Jai Prakash Gupta Vs. State of U.P. & Anr.
643
point. No hard and fast rule can be laid
down but we do not consider that the
possibility of conflicting decision in the
civil and criminal Courts is a relevant
consideration. The law envisages such an
eventuality when it expressly refrains from
making the decision of the Court binding
on the other, or even relevant, except for
certain limited purposes, such as sentence
or
damages.
The
only
relevant
consideration here is the likelihood of
embarrassment.

16.Another factor which weighs
with us is that a civil suit often drags on for
years and it is undesirable that a criminal
prosecution should wait till everybody
concerned has forgotten all about the
crime. The public interest demand that
criminal justice should be swift and sure;
that the guilty should be punished while the
events are still fresh in the public mind and
that the innocent should be absolved as
early as is consistent with a fair and
impartial trial. Another reason is that it is
undesirable to let things slide till memories
have grown too dim to trust. This, however,
is not a hard and fast rule. Special
considerations obtaining in any particular
case might make some other course more
expedient and just. For example, the civil
case or the other criminal proceeding may
be so near its end as to make it inexpedient
to stay it in order to give precedence to a
prosecution ordered under S. 476. But in
this case we are of the view that the civil
suits should be stayed till the criminal
proceedings have finished."

21. In "Lal Muni Devi (Smt.) Vs.
State of Bihar, (2001) 2 SCC 17, the
Hon'ble Supreme Court held that there
could be no dispute to the proposition that
if the complaint does not make out an
offence it can be quashed. However, it was
also held that it is also settled law that facts
may give rise to a civil claim and also
amount to an offence and merely because a
civil claim is maintainable that does not
mean that the criminal complaint cannot be
maintained. The Hon'ble Supreme Court
held that, as in that case, the High Court did
not state that on facts no offence was made
out, the criminal prosecution could not
have been quashed merely on the ground
that the dispute was a civil wrong.

22. In M. Krishnan (Supra) the
Hon'ble Supreme Court held that in almost
all cases of cheating and fraud in the whole
transaction, there is generally some element
of civil nature. In that case, the allegations
were
regarding
the
forging
of
the
documents and acquiring gains on the basis
of such forged documents. It was held that
the proceedings could not be quashed only
because the respondents there in, had filed
a civil suit with respect to those documents.
In a criminal Court the allegations made in
the complaint have to be established
independently,
notwithstanding,
the
adjudication by a civil court. If the
complainant had failed to prove the
allegations made by him in the complaint
the accused would be entitled to discharge
but not otherwise. If mere pendency of a
suit is made a ground for quashing the
criminal proceedings, the unscrupulous
litigants, apprehending criminal action
against them, would be encouraged to
frustrate the course of justice and law by
filing suits with respect to the documents
intended to be used against them after the
initiation of criminal proceedings or in
anticipation of such proceedings. Such a
course cannot be the mandate of law. The
civil proceedings as distinguished from the
criminal action have to be adjudicated and
concluded by adopting separate yard sticks.
In criminal cases, the onus is, of proving
the allegations beyond reasonable doubt,
644 INDIAN LAW REPORTS ALLAHABAD SERIES
which is not applicable to civil proceedings
which are decided merely on the basis of
probabilities with respect to the acts
complained of.

23. It is appropriate to reproduce
para 5 of M. Krishnan (Supra) as
under:-

"Accepting
such
a
general
proposition
would
be
against
the
provisions of law inasmuch as in all
cases of cheating and fraud, in the whole
transaction, there is generally some
element of civil nature. However, in this
case, the allegations were regarding the
forging of the documents and acquiring
gains on the basis of such forged
documents. The proceedings could not be
quashed only because the respondents
had filed a civil suit with respect to the
aforesaid documents. In a criminal court
the allegations made in the complaint
have to be established independently,
notwithstanding the adjudication by a
civil court. Had the complainant failed to
prove the allegations made by him in the
complaint, the respondents were entitled
to
discharge
or
acquittal
but
not
otherwise. If mere pendency of a suit is
made a ground for quashing the criminal
proceedings, the unscrupulous litigants,
apprehending criminal action against
them, would be encouraged to frustrate
the course of justice and law by filing
suits with respect to the documents
intended to be used against them after the
initiation of criminal proceedings or in
anticipation of such proceedings. Such a
course cannot be the mandate of law.
Civil proceedings, as distinguished from
the
criminal
action,
have
to
be
adjudicated and concluded by adopting
separate yardsticks. The onus of proving
the allegations beyond reasonable doubt,
in criminal case, is not applicable in the
civil proceedings which can be decided
merely on the basis of the probabilities
with respect to the acts complained of.
The High Court was not, in any way,
justified to observe:

"In my view, unless and until the
civil court decides the question whether
the document are genuine or forged, no
criminal action can be initiated against
the petitioners and in view of the same,
the present criminal proceedings and
taking cognizance and issue of process
are clearly erroneous."

24. In "Kamala Devi Agarwal
(Supra) the Hon'ble Supreme Court on
consideration of the earlier authorities on
the point, held, that criminal cases have
to be proceeded with in accordance with
the procedure as prescribed under the
Code of Criminal Procedure and the
pendency of a civil action in a different
court even though higher in status and
authority, cannot be made a basis for
quashing
of
the
proceedings.It
is
considered appropriate to refer paragraph
nos.9, 10 and 17 of Kamala Devi
Agarwal (Supra) as under:-

"9. Criminal prosecution cannot
be thwarted at the initial stage merely
because civil proceedings are also pending.
After referring to judgments in State of
Haryana v. Bhajan Lal , Rajesh Bajaj v.
State NCT of Delhi this Court in Trisuns
Chemical Industry v. Rajesh Agarwal &
Ors. [1999 (8) SC 687] held:

"Time and again this Court has
been pointing out that quashing of FIR or a
complaint in exercise of the inherent,
powers of the High Court should be limited
to very extreme exceptions (vide State of
Haryana v. Bhajan Lal and Rajesh Bajaj v.
State NCT of Delhi ].
2 All. Jai Prakash Gupta Vs. State of U.P. & Anr.
645

In the last referred case this court
also pointed out that merely because an act
has a civil profile is not sufficient to denude
it of its criminal outfit. We quote the
following observations:

"10. It may be that the facts
narrated in the present complaint would as
well reveal a commercial transaction or
money transaction. But that is hardly a
reason for holding that the offence of
cheating were committed in the course of
commercial and also money transaction."

17. In view of the of authorities to
the contrary, we are satisfied that the High
Court was not justified in quashing the
proceedings initiated by the appellant
against the respondents. We are also not
impressed by the argument that as the civil
suit was pending in the High Court, the
Magistrate was not justified to proceed
with the criminal case either in law or on
the basis of propriety. Criminal cases have
to be proceeded with in accordance with
the procedure as prescribed under the
Code of Criminal Procedure and the
pendency of a civil action in a different
court even though higher in status and
authority, cannot be made a basis for
quashing of the proceedings."

25. In Vishnu Dutt Sharma
(Supra), also, it has been held that any
finding in a criminal proceeding by no
stretch of imagination would be binding
in a civil proceeding. If a primacy is
given to a criminal proceeding, the civil
suit must be determined on its own
keeping in view the evidence brought on
record in such suit and not in terms of the
evidence
brought
in
the
criminal
proceedings.

26. In P. Swaroopa Rani (Supra)
the Hon'ble Supreme Court held that it is
well-settled that in a given case, civil
proceedings and criminal proceedings can
proceed simultaneously. Whether civil
proceedings or criminal proceedings shall
be stayed depends upon the fact and
circumstances of each case.

27. In Syed Askari Hadi Ali
(Supra) the question involved was the
effect
of
pendency
of
a
probate
proceeding vis-a-vis a criminal case
involving allegations of forgery of a will.
The Hon'ble Supreme Court, reiterated,
that indisputably, in a given case, a civil
proceeding as also a criminal proceeding
may proceed simultaneously. Cognizance
in a criminal proceeding can be taken by
the criminal court upon arriving at the
satisfaction that there exists a prima facie
case. The question as to whether in the
facts and circumstances of the case one or
the other proceedings would be stayed
would depend upon several factors
including the nature and the stage of the
case. Ordinarily, a criminal proceeding
will
have
primacy
over
the
civil
proceeding. Precedence to a criminal
proceeding is given having regard to the
fact that the disposal of a civil proceeding
ordinarily takes a long time and in the
interest of justice the former should be
disposed of as expeditiously as possible.
It has been so held in paragraph nos.21,
22 and 23, which are reproduced as
under:-

"21. Indisputably, in a given case,
a civil proceeding as also a criminal
proceeding may proceed simultaneously.
Cognizance in a criminal proceeding can
be taken by the criminal court upon
arriving at the satisfaction that there exists
a prima facie case. The question as to
whether in the facts and circumstances of
the case one or the other proceedings
would be stayed would depend upon
646 INDIAN LAW REPORTS ALLAHABAD SERIES
several factors including the nature and the
stage of the case.

22. It is, however, now well
settled
that
ordinarily
a
criminal
proceeding will have primacy over the civil
proceeding. Precedence to a criminal
proceeding is given having regard to the
fact that disposal of a civil proceeding
ordinarily takes a long time and in the
interest of justice the former should be
disposed of as expeditiously as possible.
The law in this behalf has been laid down
in a large number of decisions. We may
notice a few of them.

23. In M.S. Sheriff & anr. vs.
State of Madras & Ors. [AIR 1954 SC
397], a Constitution Bench of this Court
was seized of a question as to whether a
civil suit or a criminal case should be
stayed in the event both are pending; it was
opined that the criminal matter should be
given precedence. In regard to the
possibility of conflict in decisions, it was
held that the law envisages such an
eventuality when it expressly refrains from
making the decision of one Court binding
on the other or even relevant, except for
certain limited purposes, such as sentence
or damages. It was held that the only
relevant consideration was the likelihood of
embarrassment."

28. In this connection, reference also
deserves to be made to the judgments of the
Hon'ble Supreme Court in the cases of "G.
Sagar Suri Vs. State of U.P.", AIR 2000
SC 754; "M/s. Indian Oil Corporation
Vs. M/s NEPC India Ltd.", AIR 2006 SC
2780 and "Mohammed Ibrahim & others
Vs. State of Bihar & Another", (2009) 8
SCC 751.

29. In G. Sagar Suri (Supra), the
Hon'ble Supreme Court held that in the
exercise of jurisdiction under Section 482
Cr.P.C. the High Court has to see if the
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.
It has been further held that if, the High
Court comes to the conclusion that
allowing the proceeding to continue would
be an abuse of the process of the Court or
that ends of justice required that the
proceeding be quashed, the High Court is
entitled to quash the criminal proceeding.
Paragraph Nos.8 and 9 of G. Sagar Suri
(Supra) read as under:-

"8. Jurisdiction under Section 482
of the Code has to be exercised with a great
care. In exercise of its jurisdiction High
Court is not to examine the matter
superficially. It is to be seen if a matter,
which is essentially of 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 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.

9. In State of Karnataka v. L.
Muniswamy and Others, AIR (1977) SC
1489 = [1977] 3 SCR 113, this Court said
that in the exercise of the wholesome
power under Section 482 of the Code High
Court is entitled to quash a proceeding if it
comes to the conclusion that allowing the
proceeding to continue would be an abuse
of the process of the Court or that the ends
of justice require that the proceedings are to
be quashed."
2 All. Jai Prakash Gupta Vs. State of U.P. & Anr.
647

30. In "M/s. Indian Oil Corporation
(Supra), one of the points which came up
for consideration before Hon'ble the
Supreme Court was:

"Whether existence or availment of
civil remedy in respect of disputes arising
from breach of contract, bars remedy under
the criminal law ?".

It was 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
principles laid down in the earlier judgments,
were quoted, one of which was that the 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 civil proceedings are different
from criminal proceedings, the mere fact that
the
complaint
raised
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. Paragraph nos. 9 and
10 of the report are being reproduced as
under:-

"9. 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 Court in
several decisions. To mention a few -
Madhavrao
Jiwaji
Rao
Scindia
v.
Sambhajirao Chandrojirao Angre [1988 (1)
SCC 692], State of Haryana vs. Bhajanlal
[1992 Supp (1) SCC 335], Rupan Deol Bajaj
vs. Kanwar Pal Singh Gill [1995 (6) SCC
194], Central Bureau of Investigation v.
Duncans Agro Industries Ltd., [1996 (5) SCC
591], State of Bihar vs. Rajendra Agrawalla
[1996 (8) SCC 164], Rajesh Bajaj v. State
NCT of Delhi, [1999 (3) SCC 259], Medchl
Chemicals & Pharma (P) Ltd. v. Biological
E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan
Prasad Verma v. State of Bihar [2000 (4)
SCC 168], M. Krishnan vs Vijay Kumar
[2001
(8)
SCC
645],
and
Zandu
Phamaceutical Works Ltd. v. Mohd. Sharaful
Haque [2005 (1) SCC 122]. 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
malafides/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,
648 INDIAN LAW REPORTS ALLAHABAD SERIES
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
proceedings 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.

10. 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
lenders/creditors. Such a tendency is seen
in several family disputes also, leading to
irretrievable
break
down
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 though criminal prosecution
should be deprecated and discouraged. In
G. Sagar Suri vs. State of UP [2000 (2)
SCC 636], this Court observed :

"It is to be seen if a matter,
which is essentially of 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 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."

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
Cr.P.C.