# Ms. Nina Nagpal / v. Judicial Magistrate-I Meerut and another

- **Citation:** (2003) 3 ILRA 598
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-09
- **Case number:** Criminal Misc. Application No. 1191 of 1998
- **Bench:** R.K. Dash
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ms-nina-nagpal-v-judicial-magistrate-i-meerut-and-another-40135
- **Pages:** 7

## Headnote

Code of Criminal Procedure- section482- Circumstances under which the
power can be exercised- Quashing of
criminal proceeding under article 226 or
under section 482 Cr. P.C. awaited well
settled by various decisions of the
Supreme
Court
that

where
the
allegation made in the F.I.R. or the
complaint, even if they are taken on its
face value and accepted in their entirety
do not prima-facie constitute any offence
or make out a case against the accused;
also where the allegation made in the
F.I.R. or complaint are so absurd and
inherently improvable on the basis of
which no prudent person can reach a
just conclusion that there is sufficient
ground
for
proceeding
against
the
accuse. Impugned order quashed.

Held- pare 12 & 15

In the case on hand, in view of the
allegations made in the complaint none
of the ingredients are satisfied, in as
much as, it is not alleged by the
complainant, respondent no. 2 that he
had entrusted the amount in question
with the petitioner or the petitioner
having dominion over the said amount
dishonestly
misappropriated
it.
The
learned Magistrate without looking to
the
accusation
and
the
statutory
provision mechanically took cognizance
of the offence of criminal breach of trust
which in my considered opinion is not
legally sustainable.

Added to what has been stated above,
the case may be viewed from another
angle. For realisation of the amount
deposited with the OTCEI, respondent
no. 2 filed a writ petition in the Delhi
High Court arraying petitioner as one of
the respondent and admittedly, the said
writ petition is pending for decision. He
concealed this fact while filing the
present case. True it is, law is well
settled that even if the facts give rise to
a civil claim, yet a criminal proceeding is
maintainable and both the proceedings
can simultaneously continue. But so far
the present case is concerned, as stated
earlier, the allegations taken in entirety
do not make out any offence, more so,
offence under Sections 406 and 420
I.P.C. If on a reading of the complaint
ingredients of those two offences would
have been spelt out, this Court would
have been slow to interfere with the
impugned
orders
of
the
learned
Magistrate taking cognizance of the
offence in exercise of inherent power.
Rather what appears is that since the
writ petition is pending in the Delhi High
Court and no early decision could be
obtained, respondent no. 2 adopted this
devise
in
initiating
the
criminal
proceeding
in
order
to
force
the
petitioner to refund back the amount.
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3 All] Ms. Nina Nagpal V. Judicial Magistrate-1 Meerut and another
599
Cases referred to:
2002(44) ACC 520
(1976) 3 SCC 736
1992 Supp (1) SCC 335

## Text

598 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
select list, shall be treated Senior to others
in the said select list.

Both the Writ Petitions, details given
above, stands allowed.

No order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 9.5.2003

BEFORE
THE HON'BLE R.K. DASH, J.

Criminal Misc. Application No. 1191 of 1998

Ms. Nina Nagpal ...Applicant/Petitioner
Versus
Judicial Magistrate-I Meerut and another

...Opposite parties/Respondent

Counsel for the Petitioner:
Sri Kushal Kant
Sri G.S. Chaturvedi

Counsel for the Respondents:
Sri Ravi Kiran Jain
Sri Ajay Rajendra
A.G.A.

Code of Criminal Procedure- section482- Circumstances under which the
power can be exercised- Quashing of
criminal proceeding under article 226 or
under section 482 Cr. P.C. awaited well
settled by various decisions of the
Supreme
Court
that

where
the
allegation made in the F.I.R. or the
complaint, even if they are taken on its
face value and accepted in their entirety
do not prima-facie constitute any offence
or make out a case against the accused;
also where the allegation made in the
F.I.R. or complaint are so absurd and
inherently improvable on the basis of
which no prudent person can reach a
just conclusion that there is sufficient
ground
for
proceeding
against
the
accuse. Impugned order quashed.

Held- pare 12 & 15

In the case on hand, in view of the
allegations made in the complaint none
of the ingredients are satisfied, in as
much as, it is not alleged by the
complainant, respondent no. 2 that he
had entrusted the amount in question
with the petitioner or the petitioner
having dominion over the said amount
dishonestly
misappropriated
it.
The
learned Magistrate without looking to
the
accusation
and
the
statutory
provision mechanically took cognizance
of the offence of criminal breach of trust
which in my considered opinion is not
legally sustainable.

Added to what has been stated above,
the case may be viewed from another
angle. For realisation of the amount
deposited with the OTCEI, respondent
no. 2 filed a writ petition in the Delhi
High Court arraying petitioner as one of
the respondent and admittedly, the said
writ petition is pending for decision. He
concealed this fact while filing the
present case. True it is, law is well
settled that even if the facts give rise to
a civil claim, yet a criminal proceeding is
maintainable and both the proceedings
can simultaneously continue. But so far
the present case is concerned, as stated
earlier, the allegations taken in entirety
do not make out any offence, more so,
offence under Sections 406 and 420
I.P.C. If on a reading of the complaint
ingredients of those two offences would
have been spelt out, this Court would
have been slow to interfere with the
impugned
orders
of
the
learned
Magistrate taking cognizance of the
offence in exercise of inherent power.
Rather what appears is that since the
writ petition is pending in the Delhi High
Court and no early decision could be
obtained, respondent no. 2 adopted this
devise
in
initiating
the
criminal
proceeding
in
order
to
force
the
petitioner to refund back the amount.
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3 All] Ms. Nina Nagpal V. Judicial Magistrate-1 Meerut and another
599
Cases referred to:
2002(44) ACC 520
(1976) 3 SCC 736
1992 Supp (1) SCC 335

(Delivered by Hon'ble R.K. Dash, J.)

1. Over The Counter Exchange of
India (hereinafter referred to as 'the
OTCEI').
New
Delhi
a
company
incorporated under the Companies Act,
1956 is a recognized Stock Exchange
within the meaning of Section 4 of the
Security Contracts (Regulation) Act. It
has
been
promoted
by
premier
Government financial institutions like
Unit
Trust
of
India,
Industrial
Development
Bank
of
India,
Life
Insurance Corporation of India and others.
The OTCEI through advertisement invited
applications for selection of dealers with
stipulation that the applicant shall meet
the requirement as laid down in clause (8)
of the Securities Contracts (Regulation)
Rules, 1957. It was further stated that the
applicant should be required to pay
application fee of rupees one lakh
adjustable
against
one
time
nonrefundable admission fee of rupee six
lakhs for the successful applicant. In case
of an unsuccessful applicant, application
fee would be refunded to him after
deduction of rupees five thousand towards
processing
fee
etc.
Accordingly
respondent
no.
2
applied
for
the
dealership and paid application fee of
rupees one lac and appeared for computer
based examination and on the basis of his
performance in the examination, he was
requested to appear for interview vide
letter dated 12th June, 1995. Thereafter,
the OTCEI informed him of his being
selected as a dealer and requested him to
comply with the formalities as mentioned
in the letter dated 24th August, 1995. The
case of the petitioner is that respondent
no. 2 agreeing to have dealership
deposited
one
time
non-refundable
admission fee in addition to rupees one
lac which was deposited along with the
application.
He
also
submitted
an
undertaking to comply with the OTCEI's
rules and regulations. On acceptance of
his dealership, the OTCEI processed the
documents and forwarded the same to the
Securities and Exchange Board of India
(in short 'the SEBI') to register him as a
dealer. The letter however, returned the
same asking the OTCEI to resubmit along
with the documents with regard to age
and qualification of respondent no. 2. The
OTCEI in turn vide its letter dated 11th
March, 1996 sought the documents from
respondent no. 2 in support of his age and
experience as required by the SEBI.
While the application of respondent no. 2
was under consideration of the SEBI
Respondent no. 2 addressed a letter dated
22nd August, 1996 to the OTCEI stating
therein the he had come to know from
reliable source that he was not entitled to
dealership on account of his having
crossed the age of sixty five years and,
therefore, the admission fee deposited by
him be refunded to him. In response
thereto, the OTCEI informed him that
upon acceptance of the dealership, it
processed his documents and forwarded
to the SEBI for registration of his name as
a dealer. But upon review of the
documents, SEBI sought for certain
additional information with regard to his
age and experience and in the meanwhile,
he asked for refund of admission fee and
therefore, the fee being non-refundable
the OTCEI cannot refund the same. In the
above backdrop, respondent no. 2, it is
alleged, moved the Delhi High Court by
filing a writ petition being civil misc. writ
petition no. 1970 of 1997 seeking
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600 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
issuance of a writ of mandamus for
release of the fees deposited with the
OTCEI
together
with
compensation.
While the said writ petition was pending
adjudication, respondent no.2 moved a
criminal complaint before the Judicial
Magistrate, Ist Class, Meerut arraying the
petitioner and another as accused.

2. In short, the allegation of
respondent no. 2 is that in response to the
advertisement
for
appointment
of
dealership, he
made
an application
fulfilling
all
the
conditions.
Both
petitioner and the co-accused had assured
him that within three months he would get
the letter of appointment of dealership.
On their assurance he deposited huge
amount but in fact they had no power of
appointment of dealership on behalf of the
SEBI. It is further alleged that both
petitioner and co-accused hatched a
conspiracy to cheat respondent no.2 by
making a false promise that he would be
appointed as a dealer and consequently,
defrauded him of lacs of rupees.

3. Upon such complaint, the learned
Magistrate examinee respondent no.2
under Section 200 Cr.P.C. and recorded
his statement. Thereafter, by order dated
16th March, 1998 he took cognizance of
the offence under Sections 406 and 420
I.P.C. and issued summons to the
petitioner and the co-accused for their
appearance.
Aggrieved
thereby,
the
petitioner by filing this petition has
prayed for quashing of the complaint as
well as the summoning order.

4. Shri G.S. Chaturvedi, learned
Senior
Counsel
appearing
for
the
petitioner contended that on the basis of
the
advertisement
by
the
OTCEI
published in the newspapers inviting
applications for dealership in different
cities, respondent no. 2 and, therefore, the
former cannot be attributed with any
criminal liability as alleged by respondent
no.
2.
he
further
urged
that
the
prosecution allegation in entirety even if
taken on its face value as alleged in the
complaint, does not make out any offence
under Section 406/420 I.P.C. and in that
view of the matter the court, in order to
secure ends of justice, should interfere
with the said order and quash the same in
exercise of inherent power.

5.

On
facts,
Sri
Chaturvedi
contended that the OTCEI accepted
dealership application of respondent no.
2, processed all the documents and
forwarded to the SEBI for registration,
who in turn asked for the details regarding
age and experience of respondent no. 2
and accordingly communication was
made with Respondent no. 2 by letter
dated 11.3.1996 and he was asked for
supply of necessary documents in support
thereof.
Instead
of
complying
the
requirement, he informed the OTCEI to
return
back
the
deposit.
In
the
circumstances, therefore, no motive can
be attributed either to the OTCEI or the
petitioner and other officials in not
registering him as a dealer on the OTCEI.
Rather, from the conduct of respondent
no. 2 it appears that initially he intended
to have a dealership, but subsequently he
changed his mind and asked for return of
his deposit. The plea taken by him that he
having crossed the age of 65 years was
not entitled to dealership according to the
Rules framed by the SEBI and that is the
reason why he asked for refund of the
deposit is quite false and baseless and
therefore, cannot be accepted. Since the
dealership fee paid by him was nonrefundable, he was intimated accordingly
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3 All] Ms. Nina Nagpal V. Judicial Magistrate-1 Meerut and another
601
and it was only thereafter that he, moved
the Delhi High Court by filing writ
petition no. 1970 of 1997 and concealing
this fact, he filed the criminal complaint
in order to coerce the petitioner and the
OTCEI to return the non-refundable fee.
The dispute regarding return of the
deposit being a civil dispute and the Delhi
High Court having taken cognizance
thereof, the present criminal proceeding is
not entertainable in law.

6. Shri Ravi Kiran Jain, learned
Senior Counsel assisted by Shri Ajay
Rajendra would urge that affidavit sworn
to by Sheo Kumar on behalf of the
petitioner in support of the writ petition
being not in terms of the High Court
Rules,
should
be
rejected
and
consequently, the writ petition being not
maintainable should be dismissed. It was
further contended that inherent power can
be sought to be exercised if there is no
specific provision in the Cr.P.C. to
challenge a criminal proceeding. But in
the present case the petitioner could have
raised the questions as are being raised
here before the learned Magistrate in
seisin of the case in view of the law laid
down by this Court in Bhopal Sugar
Industries Limited Vs. State of U.P.
2002(44) ACC 520 and it was for the
Magistrate to decide whether the criminal
proceeding should be allowed to continue
or not. Lastly, it was submitted that none
of the illustrations given in the celebrated
judgement in the case of State of
Haryana Vs. Bhajan Lal and others,
1992 Supp (1) SCC 335 apply to the case
on hand and, therefore, the criminal
complaint filed by respondent no. 2
should be allowed to be decided on merit
by the trial court.

7. It is well neigh settled that the
High Court in exercise of inherent power
conferred by Section 482 of the Code of
Criminal Procedure (for short 'Cr.P.C.')
or extra-ordinary writ jurisdiction under
Article 226 of the Constitution of India
can quash a criminal complaint /FIR if the
allegations taken in entirety do not primafacie constitute any offence, or where the
allegations are absurd and inherently
improbable
or
the
proceeding
is
manifestly attended with mala fide or it is
instituted to wreak vengeance on the
accused. There is, however, a note of
caution that such power should be
exercised sparingly and in rarest of rare
cases. It needs no emphasis that Section
482 Cr.P.C. does not confer new power
upon the Court. It only saves the power
which the Court inherently possessed. As
the section goes, inherent power can be
exercised in three circumstances; namely
(i) to give effect to any order under the
Code; (ii) to prevent abuse of the process
of the Court or (iii) otherwise to secure
the ends of justice.

8. The legislature in its wisdom has
invested inherent power with the High
Court, since it being superior Court will
exercise the same with caution where
circumstance of the case so warrants. The
Apex Court in R.P. Kapur (vs) State of
Punjab, AIR 1960 SC 866 laid down the
following circumstances when the Court
in exercise of inherent power can quash
the criminal proceeding:

"(i) where it manifestly appears that there
is legal bar against the institution or
continuance of a criminal proceeding for
want of sanction;
(ii) where the allegations in the first
information report or the complaint, even
if they are taken at their face value and
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602 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
accepted
in
their
entirety,
do
not
constitute the offence alleged and
(iii) where the allegations constitute an
offence but there is no legal evidence
adduced or the evidence adduced clearly
or manifestly fails to prove the charge."

9. Further reference may be made
also to the observation made n Nagawwa
vs. Veeranna Shivalingappa Konjalgi;
(1976) 3 SCC 736 where the Apex Court
held that a criminal proceeding can be
quashed in the following circumstances :

"1. where the allegations made in
the complaint or the statements of the
witnesses recorded in support of the same
taken at their face value make out
absolutely no case against the accused or
the complaint does not disclose the
essential ingredients of an offence which
is alleged against the accused;
2.
where the allegations made in the
complaint
are
patently
absurd
and
inherently improbable so that no prudent
person can ever reach a conclusion that
there is sufficient ground for proceeding
against the accused;
3.
where the discretion exercised by the
Magistrate in issuing process is capricious
and arbitrary having been based either on
no evidence or on materials which are
wholly irrelevant or inadmissible; and
4.
where the complaint suffers from
fundamental legal defects, such as, want
of sanction, or absence of a complaint by
legally competent authority and the like."

In Madhavrao Jiwajirao Scindia
vs. Sambhajirao Chandrojirao Angre;
(1988) 1 SCC 692, the Apex Court
observed thus -

"The legal position is well settled
that when a prosecution at the initial stage
is asked to be quashed, the test to be
applied by the Court is as to whether the
uncontroverted allegations as made prima
facie establish the offence. It is also for
the Court to take into consideration any
special features which appear in a
particular case to consider whether it is
expedient and in the interest of justice to
permit a prosecution to continue. This is
so on the basis that the Court cannot be
utilized for any oblique purpose and
where in the opinion of the Court chances
of an ultimate conviction is bleak and,
therefore, no useful purpose is likely to be
served by allowing a criminal prosecution
to continue, the Court may while taking
into consideration the special facts of a
case also quash the proceeding even
though it may be at a preliminary stage".

10. The scope and ambit of exercise
of inherent power by the Court came to be
further
decided
in
the
celebrated
judgement in the case of State of
Haryana vs. Bhajan Lal; 1992 Crl. L.J.
527 and the guidelines laid down therein
and relevant for the purpose are extracted
here-under.

"(1) Where the allegations made in the
first information report or 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 a
case against the accused.

(2) to (4) xxxxxxxxxxxx

(5) Where the allegations made in the
FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can every reach
a just conclusion that there is sufficient
ground
for
proceeding
against
the
accused.
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3 All] Ms. Nina Nagpal V. Judicial Magistrate-1 Meerut and another
603
(6) xxxxxxxxxxxxx
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private or
personal grudge."

11. Keeping in mind the law
enunciated by the Apex Court as
discussed above, it is desirable to
scrutinize the allegations made in the
complaint in order to find whether the
same constitute offence of 'criminal
breach of trust' and 'cheating' punishable
under Sections 406 and 420 I.P.C. In
order to constitute the offence of 'criminal
breach of trust' the prosecution must
prove that the accused was entrusted with
some property or with dominion or power
over it. It is also to be established further
that in respect of the property so
entrusted,
there
was
dishonest
misappropriation or dishonest conversion,
use or disposal in violation of legal
contract by the accused himself or by
someone else which he willingly suffered
to do.

12. In the case on hand, in view of
the allegations made in the complaint
none of the ingredients are satisfied, in as
much as, it is not alleged by the
complainant, respondent no. 2 that he had
entrusted the amount in question with the
petitioner
or
the
petitioner
having
dominion
over
the
said
amount
dishonestly
misappropriated
it.
The
learned Magistrate without looking to the
accusation and the statutory provision
mechanically took cognizance of the
offence of criminal breach of trust which
in my considered opinion is not legally
sustainable.
13. As regards the offence of
'cheating', at the outset it may be stated
that the prosecution allegation taken as a
whole does not make out such offence.
The requirement of the offence of
cheating defined in Section 415 I.P.C. are:

"(i) there
should
be
fraudulent
or
dishonest inducement of a person by
deceiving him;

(ii) (a) the person so deceived should
be induced to deliver any property to any
person or to consent that any person shall
retain any property or

(b) the person so deceived should be
intentionally induced to do or omit to do
anything which he would not do or omit if
he was not so deceived;

(iii) in cases covered by (ii) (b) the act or
omission should be one which causes or is
likely to cause damage or harm to the
person induced in body, mind, reputation
or property.

14. It is not the case of respondent
no.2, the complainant that the petitioner
deceived or fraudulently or dishonestly
induced him to deposit any amount with
the OTCEI. From the facts narrated it
appears that whatever the petitioner did
was in her official capacity as General
Manager of OTCEI and her personal
interest was not involved. Why should she
induce respondent no. 2 to deposit the
amount with the OTCEI which would not
benefit her personally? The grievance of
respondent no. 2 that the petitioner and
other co-accused had assured him that
after deposit was made, they would
handover
the
appointment
letter
of
dealership within three months is too big
a pill to be swallowed. Respondent no.2 is
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604 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
not an illiterate person having no
experience in contractual transaction. He
being a retired officer of the Life
Insurance Corporation of India knew
quite
well
that
registration
of
his
dealership in the OTCEI would be done
by the SEBI and so far the petitioner is
concerned, she is due discharge of her
official duty as General Manager of the
OTCEI was required to send all the
papers and documents to the SEBI for
taking a decision. In view of such back
ground facts, I am of the opinion that the
case is squarely covered by illustrations
(1) and (5) as laid down by the Apex
Court in Bhajan Lal (Supra). Had the
learned Magistrate looked to all these
aspects of the case he would have been
slow to pass the impugned order taking
cognizance of the offence either under
Section406 or 420 I.P.C.

15. Added to what has been stated
above, the case may be viewed from
another angle. For realisation of the
amount deposited with the OTCEI,
respondent no. 2 filed a writ petition in
the Delhi High Court arraying petitioner
as one of the respondent and admittedly,
the said writ petition is pending for
decision. He concealed this fact while
filing the present case. True it is, law is
well settled that even if the facts give rise
to a civil claim, yet a criminal proceeding
is maintainable and both the proceedings
can simultaneously continue. But so far
the present case is concerned, as stated
earlier, the allegations taken in entirety do
not make out any offence, more so,
offence under Sections 406 and 420 I.P.C.
If on a reading of the complaint
ingredients of those two offences would
have been spelt out, this Court would
have been slow to interfere with the
impugned
orders
of
the
learned
Magistrate taking cognizance of the
offence in exercise of inherent power.
Rather what appears is that since the writ
petition is pending in the Delhi High
Court and no early decision could be
obtained, respondent no. 2 adopted this
devise
in
initiating
the
criminal
proceeding in order to force the petitioner
to refund back the amount.

16. Regard being had to the facts
and
circumstances
of
the
case
as
discussed above, I would hold that
impugned order passed by the Magistrate
taking cognizance of the offence being
unsustainable in law should be set at
naught. It is accordingly so ordered.

17. In the result, criminal misc.
application succeeds and is allowed and
consequently the impugned order as well
as the proceedings in complaint case no.
127/9 of 1998 pending in the court of
judicial Magistrate-I, Meerut are quashed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.5.2003

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE M. CHAUDHARY, J.

Criminal Misc. Writ Petition No. 2517 of 2003

Tribhuwan Nath Tripathi
...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Appellant:
Sri G.S. Chaturvedi
Sri Samit Gopal

Counsel for the Respondents:
A.G.A.
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