# K.L. Agarwal v. State Of U.P. & Anr

- **Citation:** (2016) 5 ILRA 417
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-25
- **Bench:** Bharat Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/k-l-agarwal-v-state-of-u-p-anr-43849
- **Pages:** 10

## Text

5 All. K.L. Agarwal Vs State Of U.P. & Anr.

417

31. The petitioner shall be entitled to costs which we quantify to Rs.50,000/- which shall be
paid by respondent-1 to petitioner within two months.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.05.2016

BEFORE

THE HON'BLE BHARAT BHUSHAN, J.

Application U/S 482 No.- 39907 Of 2013
&
Connected With Other Cases

K.L. Agarwal ...Applicant
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for Applicant:
Ajay Bhanot

Counsel for Opposite Parties:
Govt. Advocate, Anil Kumar Verma, Anil Srivastava

HELD:-

The dispute between the parties is purely commercial and contractual in nature arising out of a Consignment
Sales Agent Agreement.

Mere non-payment of commission or refund of security deposit does not constitute offences under Sections
406 or 420 IPC.

For an offence under Section 420 IPC, dishonest or fraudulent intention must exist at the inception of the
transaction, which is absent in the present case.

Essential ingredients of criminal breach of trust under Sections 405/406 IPC, namely entrustment and
dishonest misappropriation, are completely missing.

Existence of an arbitration clause and invocation of arbitration indicates availability of civil remedy, barring
criminal prosecution.

General and omnibus allegations against directors and signatories without specific roles are insufficient to
sustain criminal proceedings.

Criminal law cannot be used as a shortcut for recovery of money or enforcement of contractual obligations.

Continuation of criminal proceedings amounts to abuse of process of law, warranting exercise of inherent
powers under Section 482 Cr.P.C.
418 INDIAN LAW REPORTS ALLAHABAD SERIES
CASE LAW CITED:-

V.P. Shrivastava v. Indian Explosives Ltd., (2010) 10 SCC 361

V.Y. Jose v. State of Gujarat, (2009) 3 SCC 78

S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241

Mohammed Ibrahim v. State of Bihar, (2009) 8 SCC 751 (distinguished)

Arun Bhandari v. State of U.P., (2013) 2 SCC 801 (distinguished)

(Delivered by Hon'ble Bharat Bhushan, J.)

1. All the three aforesaid applications, filed by three different applicants arise out of the same
facts in the same complaint case, therefore all the three applications are being disposed of by a
common order.

2. In all the three applications, the applicants have prayed for quashing of the order dated
22.9.2012 passed by learned Judicial Magistrate-II, Varanasi in Misc Case No. 151 of 2012
whereby the the application filed under Section 156(3) Cr.P.C. was treated as complaint and
cognizance taken and also the summoning order dated 20.4.2013 passed by learned Judicial
Magistrate-II, Varanasi in Complaint Case No. 2063 of 2012 as well as proceedings of said
Complaint Case under Sections 406, 420 IPC.

3. The encapsulated facts of the case are that the complainant/opposite party no. 2, is
proprietor of a firm in the name and style of M/s Radhika Inter Prises having its registered office at
Varanasi, which deals into the business of food products as Consignment Sale Agent (herein after
referred as CSA). It is alleged that the opposite party no. 2 entered into a business of food
processing and trading of food products with the firm namely K.L.A. Foods India Limited, having
its registered Head Office at 2nd Milestone, Kichha Road, Rudrapur-261153, District Udham Singh
Nagar, Uttarakhand and its office at 21/4 Geeta Mandir Marg, New Rajendra Nagar, New Delhi110060. The applicant namely K. L. Agarwal is said to be Chairman of the said firm. Applicant
Arun Kumar Agarwal is Director of the said firm and applicant Ashok Kumar Agarwal is
authorized signatory of the firm. It is alleged that the Regional Sales Manager and Regional
Manager of applicant's firm approached the complainant at its firm and offered to appoint the
complainant's firm as a Consignment Sale Agents after depositing a sum of Rs. 5 Lacs as a security
money in favour of applicant's firm which was accepted by complainant no. 2. It is alleged that the
opposite party no. 2, thereafter, issued a cheque for Rs. 1.21 Lacs vide Cheque No. 025637 dated
27.8.2011 of Federal Bank, Branch Mahmoorganj, Varanasi which was encashed by the applicant's
firm. It is further alleged that the complainant is also said to have issued a cheque of balance
amount of security money being Cheque No. 025638 dated 07.09.2011 and requested the
applicant's firm to keep the said cheque as a security deposit and prepare an agreement for
appointment of complainant's firm as Consignment Sale Agents. It is alleged that on 5.9.2011
5 All. K.L. Agarwal Vs State Of U.P. & Anr.

419
Consignee Sales Agent Agreement was prepared at Rudrapur between the complainant and
applicant's firm whereby the complainant was appointed as Consignee Sales Agent. The
complainant is said to have paid the balance amount of security money through RTGS facility in
the account of applicant's firm at Rudrapur. It is alleged that the food products sent to the
complainant's firm by the applicant's firm were sold by the complainant's firm and the sale
proceeds were deposited with the applicant's firm but the applicant's firm failed to pay the
commission, rent etc of the food products to the complainant as per the terms and conditions of the
agreement deed and also stopped to send further the consignment of food products to the
complainant in contravention to the business agreement entered into between them.

4. It is further alleged that the complainant demanded the cheque No. 025638 dated
07.09.2011 kept with applicant's firm as a security deposit and the payments of commissions, rents
etc as Consignment Sales Agents to be allegedly made by the applicant's firm on which threats
were extended to the complainant of dire consequences. This incident is said to have been reported
to the concerned Police Station but of no avail. Thereafter a complaint was filed on 25.8.2012 by
way of an application under Section 156(3) Cr.P.C. which was treated as complaint and cognizance
was taken vide order dated 22.9.2012 . Learned Magistrate after recording the statement of the
complainant under Section 200 Cr.P.C. and his witnesses namely Sanjay Ji (P.W.-1) and Sanjay
Kumar Rai (P.W-2), summoned the applicant for facing the trial under Section 406, 420 IPC vide
order dated 20.4.2013. It is these orders which are subject matter of challenge before this court.

5. Heard Mr Ajay Bhanot, learned Senior counsel assisted by Mr S. K. Singh, learned counsel
for the applicants, learned AGA and Mr Anil Srivastava, leaned counsel for the respondent no. 2.

6. It is contended by learned counsel for the applicants that prima facie no criminal offence
against the applicants is made out and the present prosecution has been instituted with malafide
intention for the purposes of harassment. It is further contended that the dispute between the parties
is purely of civil nature which have been deliberately converted into criminal case with a view to
pressurize the applicants to settle the dispute. It is further submitted that the allegations levelled
against the applicants at best be termed as breach of contract for which the appropriate remedy
would be before the competent civil court. It is further submitted that under the Consignee Sales
Agent Agreement, it has been agreed between the parties that in case of any dispute arisen between
the parties out of or in connection with the agreement same shall be finally settled through an
Arbitration proceedings under the Arbitration and Conciliation Act, 1996.

7. It is further submitted that the courts at Varanasi had no jurisdiction to deal with the dispute
which had arisen between the parties as no cause of action has arisen at Varanasi. It is further
submitted that essentially the dispute between the parties is with respect to refund of Security
deposit and payments allegedly to be made by the applicant's firm and it is admitted fact that the
security deposit was submitted as well as agreement was executed at applicant's firm at Rudrapur,
Uttarakhand.
420 INDIAN LAW REPORTS ALLAHABAD SERIES

8. It is further contended that that even if the uncontroverted allegations in the complaint are to
be read as a whole, and accepted in its entirety as true, no case is made out against the applicants. It
is further submitted that while non-payment of the amount due would, at best, result in a civil
liability, in the absence of any specific allegation in the complaint that the accused had, at the very
inception, induced the complainant with dishonest intention and further the inability of the accused
to make payment of the amounts due would not attract the ingredients of Sections 406 and 420 IPC.
In support of his argument, learned counsel for the applicants has relied upon the cases of V.P.
Shrivastava Vs Indian Explosives Ltd., (2010) 10 SCC 261; V.Y.Jose Vs State of Gujarat,
(2009) 3 SCC 78.

9. To the contrary, learned counsel for the opposite party no. 2 and learned AGA have
contended that the points argued by learned counsel for the applicants cannot be seen at this initial
stage being a disputed question of facts. From the material on record and looking into the facts of
the case at this stage it cannot be said that no offence is made out against the applicants. All the
submissions made at the bar relates to the disputed question of facts, which cannot be adjudicated
upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the
light of the law laid down by Supreme Court in various decisions.

10. It is further argued by learned counsel for the opposite party no. 2 that the argument of
learned counsel for the applicants is not sustainable for the simple reason that there cannot be any
agreement which blocks right to initiate criminal proceedings. If any financial or business
transaction involves criminality, the victim always has right to initiate criminal proceedings.
Whether the criminal proceedings is justified or not is a question of fact which cannot be
adjudicated under inherent jurisdiction of court provided under Section 482 Cr.P.C. Moreover, it is
further contended that some times a case may apparently look to be of civil nature or may involve a
commercial transaction but such civil disputes or commercial disputes in certain circumstances
may also contain ingredients of criminal offences and such disputes have to be entertained
notwithstanding they are also civil disputes. In support of his argument, learned counsel for the
complainant has relied upon the cases of Mohammed Ibrahim and others Vs State of Bihar and
another, (2009) 8 SCC 751 and Arun Bhandari Vs State of UP and others, (2013) 2 SCC 801.

11. I have considered the respective arguments of learned counsel for the parties but looking to
the growing tendency on the part of mischievous litigants to file vexatious and frivolous
complaints, it is necessary to examine the credibility of the complaint to see whether any criminal
offence under Sections 406, 420 IPC is made out or not.

12. Section 405 IPC deals with criminal breach of trust. A careful reading of the Section 405
IPC shows that a criminal breach of trust involves the following ingredients:

(a) a person should have been entrusted with property, or entrusted with dominion over
property;
5 All. K.L. Agarwal Vs State Of U.P. & Anr.

421

(b) that person should dishonestly misappropriate or convert to his own use that property,
or dishonestly use or dispose of that property or wilfully suffer any other person to do so;

(c) that such misappropriation, conversion, use or disposal should be in violation of any
direction of law prescribing the mode in which such trust is to be discharged, or of any legal
contract which the person has made, touching the discharge of such trust.

13. Section 406 IPC prescribes punishment for criminal breach of trust as defined in Section
405 IPC. For the offence punishable under Section 406 IPC, the following conditions are required
to be fulfilled:-

(i) that the accused was entrusted with property or with dominion over it and

(ii) that he (a) misappropriated it, or (b) converted it to his own use, or (c) used it, or (d)
disposed of it.

14. The gist of the offence is misappropriation done in a dishonest manner. There are two
distinct parts of the said offence. The first involves the fact of entrustment, wherein an obligation
arises in relation to the property over which dominion or control is acquired. The second part deals
with misappropriation which should be contrary to the terms of the obligation which is created.
Thus, once it is proved that the beneficial interest in the property was vested in some other person
other than the accused and the accused has held that property on behalf of that person,
appropriation of that beneficial interest in the property by the accused for his own use amounts to
'criminal breach of trust'.

15. So far as Section 420 IPC is concerned, it deals with cheating. Essential ingredients of
Section 420 IPC are:- (i) cheating; (ii) dishonest inducement to deliver property or to make, alter or
destroy any valuable security or anything which is sealed or signed or is capable of being converted
into a valuable security, and (iii) mens rea of the accused at the time of making the inducement.

16. In the present case, looking at the allegations in the complaint quoted in the preceding
paragraphs of the order, on the face of it, there appears a simple breach of trust of contract by either
parties. The applicants and complainant were under an obligation by way of agreement entered into
between them for which an effective remedy is to approach the Civil Courts for loss, if any caused
due to breach of contract.

17. Though it has been alleged that the applicants are summoned for the offences of cheating
and criminal breach of trust but it has not been indicated in the complaint itself that the applicants
have ever entered into agreement with dishonest intention. Rather, materials on record (Consignee
Sale Agent Agreement) indicate that it is the opposite party no. 2/complainant itself approached the
applicant's firm voluntarily to appoint him as the CSA and the applicant's firm has agreed to the
same on the terms and conditions mentioned in the agreement. A distinction has to be kept in mind
between mere breach of contract and the offence of cheating. It depends upon the intention of the
422 INDIAN LAW REPORTS ALLAHABAD SERIES
accused at the time of inducement. Mere breach of contract cannot give rise to criminal prosecution
for cheating unless fraudulent, dishonest intention since inception is shown at the beginning of the
transaction. In the present case, record would disclose that the opposite party no. 2 worked as
Consignee Sales Agent for quite some time after the execution of the agreement i.e. 5.9.2011 to
that effect with the applicant's firm.

18. In V.P.Shrivastava versus Indian Explosives limited and others, (2010) 10 Supreme
Court Cases 361, criminal proceedings alleging commission of offence under Section 420,406 &
120-B IPC were unsuccessfully challenged before the High Court. The criminal complaint had
emanated from a tripartite agreement between the Indian Explosives Limited, M/s Bharat Coking
Coal Limited and Fertilizer Corporation of India Limited. The appellants were senior employees of
Fertilizer Corporation of India Limited which had become a sick company within the meaning of
Sick Industrial Companies (Special Provision) Act, 1985. While evaluating the contentions
advanced on behalf of the parties, the Hon'ble Supreme Court explained the ingredients of the
offence of 'cheating' within the meaning of Section 415 of IPC and of 'criminal breach of trust' as
defined under Section 405 of IPC and thereafter in para No. 32 of the judgment concluded that
"even if the allegations made in the complaint are taken to be correct on their face value, they may
amount to breach of terms of contract by the Fertilizer Corporation of India Limited, but do not
constitute an offence of 'Cheating' punishable under Section 420 IPC". Similarly, in para No.38 of
the judgment, it was concluded that "there is nothing in the complaint which may even suggest
remotely that Indian Explosives Limited had entrusted any property to the appellants or that the
appellants had dominion over any of the properties of the Indian Explosives which they dishonestly
converted to their own use so as to satisfy the ingredients of Section 405 IPC, punishable under
Section 406 IPC".

19. In V. Y. Jose and another versus State of Gujrat and another, (2009) SCC 78, the
Hon'ble Supreme Court quashed the proceedings initiated in a case of 'breach of trust' on finding
that the case essentially involved a civil dispute and that mere 'breach of trust' does not necessarily
involve 'cheating' as there was no culpable intention at the time of the initial promise.

20. Coming back to the facts of the present case, record would further disclose that the
arbitration clause was invoked by the K.L.A. Foods Indian Ltd as per the terms of the agreement by
submitting a letter dated 8.12.2015 to the Indian Chamber of Commerce for appointment of Sole
Arbitrator for adjudication of the present dispute. It has also come on record that a notice was given
by the complainant to the applicant's firm on 6.6.2012 which was duly replied by the applicant's
firm on 30.8.2012, copies of which are enclosed as Annexure Nos. 8 & 9 to the affidavit. Perusal of
the notice given by opposite party no. 2 would further indicate that the complainant/opposite party
no. 2 has itself terminated the agreement w.e.f December, 2011 without any prior notice to the
applicant's firm. The applicant's firm in his reply has made counter allegations of wrongful loss to
the applicant's firm by such conduct of opposite party no. 2. It appears from the perusal of the
materials on record that it is simply a case of breach of contract and further in the facts and
circumstances of the case, there is absolutely no scope to assert that any of the accused were
entrusted with any property, or any dominion over property as contemplated under Section 405
5 All. K.L. Agarwal Vs State Of U.P. & Anr.

423
IPC. Even the materials on record do not support the main allegation of cheating under Section 415
IPC inasmuch as there is no material to indicate that the accused fraudulently or dishonestly
induced the complainant/opposite party no. 2 to deliver any property. It is well settled that to
deceive is to induce a man to believe that a thing is true which is false and which the person
practicing the deceit knows or believes to be false. It must also be shown that there existed a
fraudulent and dishonest intention at the time of entering into the contract. Admittedly, the
complainant as per agreement voluntarily entered into a valid agreement and kept on doing
business on the terms and conditions of the alleged agreement. There is no allegations against any
of the accused to have practised fraud or to have dishonestly induced the complainant at any time.
What appears from the record that there are some breach of contract and perhaps both the parties
have failed to discharge their full obligations under contract.

21. In S.W.Palanitkar versus State of Bihar, 2002 (1) SCC 241, there was an agreement
dated 21.2.1995 appointing the appellant as a consignment stockist of respondent No.2-Company.
The afore-mentioned agreement contained an arbitration clause. As there was a dispute regarding
certain payments between the parties that a complaint alleging offence under Sections 406 & 420
read with Section 120-B IPC was filed. The appellant was summoned and their petition for
quashing of the summoning order was dismissed by the High Court. Consequently, they
approached the Hon'ble Supreme Court where it was held that in order to constitute an offence of
'cheating' the intention to deceive should be in existence at the time when inducement was made
and it was necessary to show that a person had fraudulent or dishonest intention at the time of
making the promise and that a mere failure to keep the promise subsequently cannot be presumed
as an act leading to cheating.

22. Bare perusal of the agreement would reveal that the complainant who had approached the
company to appoint them as CSA and the company had infact agreed to the same on terms and
conditions mentioned in the agreement itself. Agreement further indicates that the material was sent
to the CSA but the ownership of the material remained with the company. There was certain
obligation on CSA such as providing adequate warehousing space for storing the company's
products. CSA was required to receive goods and store them in warehouse. CSA was also required
to dispatch the goods as per the orders received by the distributor appointed by the company etc.
But the ownership of the material never shifted. There were obligations on the company as well but
primarily all these obligations related to the payments of various amounts in various heads
including the cartage to the distributors and the transporters. CSA was required to present the claim
to the company supported by invoices raised by the distributor during the month in question. The
company was obliged to settle the claim within 30 days of the submission of the claim. Here, it
would be appropriate to recapitulate the terms and conditions of the agreement, as under:-

"1. The CSA has made a token security deposit of Rs. 1,21,000 (Rupees One Lace
Twenty One Thousand Only) vide cheque 025637 dated 27.8.2011 drawn on Federal Bank a
further security deposit of Rs. 379000/- (Rupees Three Lac Seventy Nine Thousand) towards
security deposit has been paid vide Cheque No. 025638 dated 3.5.2011 drawn on Federal Bank.
The total security deposit of Rs. 5,00,000/- (Rs Five Lacs) will attract an annual interest as per RBI
424 INDIAN LAW REPORTS ALLAHABAD SERIES
norms to be paid to the CSA by KLA at the end of each financial year ending in March. Depending
upon the development of Business the Company may increase the security deposit and the CSA has
agreed to provide additional security/deposit when called upon to do so. The CSA has agreed to
enhance the total security deposit to Rs. 700000/- (Rupees Seven Hundred Thousand) within three
months of commencement of operations.

SERVICES AND ARRANGEMENTS TO BE PROVIDED BY THE CSA

The CSA will provide adequate warehouse space for storing of the company's products.
The CSA will arrange to receive goods unload and store the same in the warehouse space provided
for the company's goods. The CSA will dispatch the goods as per orders received from distributors
appointed. Goods to distributors will be dispatched on freight to pay basis and the value of the
freight will be deducted in the invoice raised by the CSA. All payments received by the CSA from
distributors will be transferred to the Company's Bank Account through Bank Transfers. The
Company's Bank Account is KLA Foods India Ltd, Punjab National Bank, Main Branch, Rudrapur,
0833008700018521, RTGS Code PUNB083300. The CSA will open a separate Bank Account for
transactions with KLA preferably in the same Bank in which the Company has its account. Funds
would be transferred on a weekly/fortnightly basis NET of VAT. VAT payment details will be
submitted by the CSA promptly each month along with a copy of the payment challan. The CSA
will submit at the ends of each month a bank statement to the company. All payments from
distributors will be accepted either by way of Cheque/Draft. No cash payments from distributors
will be accepted by the CSA from distributors in case the CSA does so it will be at their own risk.
The CSA will not engage themselves in any money transactions with the company employees.

;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;

The Company shall also reimburse the following expenses to the CSA.

a) Warehouse rental at rates mutually agreed between the Company and the CSA.
Warehouse rental will commence from date of receipt of goods in the CSA warehouse. Warehouse
space required for dry products is 500 sqft and the rent payable will be @ Rs 9?- per sqft
amounting to Rs 4500/- per month. The rent applicable will be w.e.f. the date of receipt of goods in
the FCSA warehouse.

b) Loading and unloading charges at the warehouse will be communicated by a separate
letter by the Company.

c) Local Cartage to distributors and transporters warehouse. Rate to be determined.

d) Up country freight on dispatches outside the CSA location.
5 All. K.L. Agarwal Vs State Of U.P. & Anr.

425

The CSA will present claims to the Company each month supported by the invoices
raised on distributors during the month in question. The claims to the CSA will be settled within 30
days of the current month for claims submitted/presented for the previous month.

;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;

;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;;"

23. Bare perusal of the aforesaid agreement would reveal that the ownership of the material
dispatched by the company never shifted to the CSA. The company continued to have ownership
rights over the material in accordance with the instructions received from the company and remit
the amount received from the distributor to the company. This business arrangement continued for
some time. Surprisingly, the complainant is silent about the termination of the aforesaid agreement.
Though, witnesses during their statements under Section 200/202 Cr.P.C. acknowledged that the
business relationship was terminated. The complainant himself has stated in his statement under
Section 200 Cr.P.C. that the company did not give any information regarding the termination of the
agreement. However, he himself has stopped working since December, 2011 of his own. This fact
has been reinforced by his witnesses namely Sanjay and Sanjay Kumar Rai. Witnesses further
stated that the company started sending material to other firms at Varanasi, therefore they believed
that the company had terminated the agreement. The Statement of witnesses during inquiry and the
contents of the complaint itself would reveal that the entire dispute is regarding the failure of
business relationship and perceived dues as far as complainant is concerned. Even the applicants
claim that they have outstanding dues against the opposite party no. 2. It is evident that this
adjudication of claim of either parties cannot be decided in criminal proceedings. There is nothing
on record to demonstrate that the business relationship soured on account of deception, fraud or
dishonest intention right from the inception of agreement. The agreement was executed and the
material was sent. Some material was distributed and some payments were made and other
payments were adjusted. Now both the parties believe that there are outstanding dues against each
other. This cannot be adjudicated in criminal case. There is no specific allegation that complainant
ever met applicant K. L. Agarwal. A general averment was made that complainant made a request
to applicants regarding one cheque. Other than this, role of applicant K. L. Agarwal has not been
delineated at all. The agreement was signed by Ashok Agarwal who is said to be authorized
signatory of the company. Even statements recorded under Section 200/202 Cr.P.C. do not
delineate the specific roles of applicants K. L. Agarwal, Ashok Agarwal and Arun Kumar Agarwal
separately or jointly.

24. In view of above, this court finds that no allegations are made attracting the ingredients of
Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the
accused, excepting the bald allegations that the accused did not make payment to the respondent
no. 2/complainant. There is no iota of allegation as to the dishonest intention or misappropriation.
To make out a case of criminal breach of trust, it is not sufficient to show that money has been
retained by the accused rather it must be shown that the accused dishonestly retained the same. The
mere fact that the accused did not pay the money to the complainant does not amount to criminal
426 INDIAN LAW REPORTS ALLAHABAD SERIES
breach of trust. In the present case it appears a matter of breach of agreement between the parties
hence it can not be termed as 'cheating' or 'misappropriation'. The opposite party No. 2/complainant
may seek the remedy available for enforcement of contract or for realizing the money due to him or
the loss if any suffered by him.

25. So far as question of jurisdiction is concerned, it is true that agreement was executed at
Rudrapur but the material was sent to Varanasi and the same was distributed from Varanasi. Part of
the payment was allegedly made from Varanasi. In such a fact situation, it would be very difficult
to decide the question of jurisdiction without evidence. Therefore, in the instant case, question of
jurisdiction cannot be raised in a petition under Section 482 Cr.P.C. and in any case, it would have
been possible to take such plea at the time of final disposal of case, but it is apparent that the
complaint cannot proceed for want of ingredients of any offence.

26. Even if all the allegations in the complaint are taken at the face value, in my view, the
basic essential ingredients of dishonest misappropriation and cheating are missing. Criminal
proceedings are not a short cut for other remedies. Since no case of criminal breach of trust or
dishonest intention of inducement is made out and the essential ingredients of Sections 405/420
IPC are missing, the prosecution of the accused persons under Sections 406/420 IPC, is liable to be
quashed.

27. Accordingly, all the three applications are allowed. The proceedings of Complaint Case
No. 2063 of 2012 as well as the subsequent proceedings of Complaint Case No. 2063 of 2012,
under Section 406, 420 IPC, pending in the court of learned Judicial Magistrate II, Varanasi are
hereby quashed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SHAMSHER BAHADUR SINGH, J.

Writ C No.- 40114 Of 2004

Sir Shadi Lal Enterprises Ltd. ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vivek Chaudhary, Rahul Mishra, S.P. Gupta

Counsel for the Respondents:
C.S.C., Brajesh Pratap Singh, H.N. Tripathi, R.N. Pandey, Smt. Kamla Mishra