# Pawan Kumar Tyagi v. State of U.P. & Anr

- **Citation:** Application U/S 482/378/407 No. 783 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-05
- **Case number:** Application U/S 482/378/407 No. 783 of 2019
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-tyagi-v-state-of-u-p-anr-46251
- **Pages:** 6

## Headnote

(A) Criminal Law - Code of criminal
procedure, 1973 - Section 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Section 406, Section
504, Section 506 - Magistrate -
rejected the complaint - Revisional
court - rejected the revision - ground
- matter of being civil nature -
ingredients of Section 406, Section
504, Section 506 I.P.C. are absent -
No case made out to invoke the
extraordinary writ jurisdiction under
Section 482 CrPC. (Para-8,12)
The petitioner and the private respondent were
known and familiar to each other and because
of this, the petitioner gave a loan of Rs. 2 lacs
to the private respondent - respondent did not
repay the borrowed money. (Para-10)
870 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-
Criminal
proceedings
cannot
be
invoked as a short cut for the purely civil
remedies as the latter is more time consuming -
petitioner is at liberty to avail other remedies,
provided under law, for recovery of his money.
(Para-10)

Petition u/s 482 Cr.P.C. dismissed. (E7)

List Of Cases Cited:-

## Text

3-5 All. Pawan Kumar Tyagi Vs. State of U.P. & Anr.
869

(vi) In the instant case, on
account of interim order passed by this
Court, neither sale was confirmed nor
possession was delivered to M/s. Shalimar
by the authorized officer. On account of the
same M/s. Shalimar could not utilize the
property/land in issue.

(vii) In the preceding paras we
have already held that auction proceedings
in relation to property/land in issue carried
out by IFCI Ltd. are unsustainable and the
lease, which was rightly determined and no
direction to renew the lease can be issued.

58. Taking into account the aforesaid,
we are of the view that M/s. Shalimar is
entitled to refund of 25% of bid amount i.e.
18,64,01,000/- from IFCI Ltd with interest
from the date of passing of interim order
dated 27.05.2013.

59. For the foregoing reasons, the
Writ Petition No.4517 (MB) of 2013 (IFCI
Ltd. vs. Lucknow Municipal Corporation
and others) is hereby dismissed and Writ
Petition No.2397 (MB) of 2013 (Lucknow
Nagar Nigam vs. State of U.P. and others)
is allowed and the auction/sale proceedings
carried out in relation to property/land in
issue i.e. land measuring 2,17,936 sq. ft.
land of Sullage Farm situated in VillageJugauli (earlier Village-Ujariyaon) leased
out to M/s Uptron Digital System Limited
(M/s Uptron India Ltd.) by Lucknow Nagar
Nigam
through
lease
deed
dated
23.05.1985
are
hereby
quashed.
Consequence shall follow. Further, keeping
in view the interim order dated 27.05.2013
passed in Writ Petition No.2397 (MB) of
2013 and the observations made by us that
M/s. Shalimar Corporation Ltd. is entitled
to refund of 25% of bid amount from IFCI
Ltd. as also in the interest of substantial
justice, we provide liberty to M/s. Shalimar
Corporation Ltd. to represent its case
before the IFCI Ltd. for refund of 25% of
the bid amount with interest within two
months from the date of receipt of a
certified copy of this order and we hope
and trust that the IFCI Ltd. would release
the same keeping in view the observations
made herein above expeditiously.
----------
(2020)03-05ILR A869
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.03.2020

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Application U/S 482/378/407 No. 783 of
2019

Pawan Kumar Tyagi ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Lakshmi Narain, R.D. Pathak, Shamsher Ali,
V.K. Tripathi

Counsel for the Opposite Parties:
Govt. Advocate

(A) Criminal Law - Code of criminal
procedure, 1973 - Section 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Section 406, Section
504, Section 506 - Magistrate -
rejected the complaint - Revisional
court - rejected the revision - ground
- matter of being civil nature -
ingredients of Section 406, Section
504, Section 506 I.P.C. are absent -
No case made out to invoke the
extraordinary writ jurisdiction under
Section 482 CrPC. (Para-8,12)
The petitioner and the private respondent were
known and familiar to each other and because
of this, the petitioner gave a loan of Rs. 2 lacs
to the private respondent - respondent did not
repay the borrowed money. (Para-10)
870 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-
Criminal
proceedings
cannot
be
invoked as a short cut for the purely civil
remedies as the latter is more time consuming -
petitioner is at liberty to avail other remedies,
provided under law, for recovery of his money.
(Para-10)

Petition u/s 482 Cr.P.C. dismissed. (E7)

List Of Cases Cited:-

1. Kailash Kumar Sanwatia Vs. St. of Bihar &
anr., (2003)7 SCC 399

2. Indian Oil Corporation Vs. NEPC India Ltd.,
(2006)6 SCC 736

3. Binod Kumar & ors. Vs. St. of Bihar & anr.,
(2014)10 SCC 663

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. The petition has been filed under
Section 482 Criminal Procedure Code for
quashing order dated 20.11.2017 passed in
Complaint Case No.2664/2014 by Addl.
Chief Judicial Magistrate, Court No.31,
Lucknow and order dated 16.10.2018
passed by Addl. District & Sessions Judge,
Court No.9, Lucknow in Criminal revision
No.966 of 2017

2. In the petition it has been pleaded
that respondent No.2 Jagdish Saran had
borrowed a sum of Rs.2 lacs from the
petitioner
on
20.11.2010,
however,
respondent did not repay the borrowed
money. On a request being made by the
petitioner to repay the money, respondent
No.2 abused him and threatened to kill. The
petitioner, in this context, submitted an
application to the police of police station
Talkatora, Lucknow and higher police
authorities. However, finding that no action
was being taken by the police, the
petitioner filed a Complaint Case No.2664
of 2014 which has been rejected by the
Court below vide order dated 20.11.2017.

Feeling aggrieved, the petitioner
filed a Criminal Revision No.966 of 2017
before the Sessions Court, which too has
been rejected vide a detailed order dated
16.10.2018 (Annexure-3).

3. Learned counsel for the petitioner
has submitted that the learned Magistrate
has ignored the averment contained in para
7 of his complaint dated 12.8.2014 filed
before the Court below, whereby he had
demonstrated that on a phone call, the
respondent No.2 used abusive language,
with threat to kill him, and rejected the
complaint on the ground of the dispute
being of civil nature. The respondent No.2
has committed a criminal breach of trust by
not repaying the loan taken by him. In this
context, learned counsel relied on a
judgment of Hon'ble Supreme Court of
India reported in (2003)7 SCC 399
Kailash Kumar Sanwatia versus State of
Bihar and another.

Learned counsel has submitted
that the learned Magistrate as well as the
revision Court have committed a manifest
error in treating the issue involved in the
matter of civil nature.

4. Per contra, learned Additional
Government Advocate Mr. S.N. Goswami
appearing on behalf of the State has
submitted that the orders passed by both the
Courts below are justified order(s). The
dispute is of civil nature between two
private parties as it involves transaction of
money. He further submits that none of the
ingredients of Section 405 or Section 409
are attracted in the present case.
3-5 All. Pawan Kumar Tyagi Vs. State of U.P. & Anr.
871

5. I have heard learned counsel for the
petitioner, learned Additional Government
and perused the orders passed by the Courts
below.

6. A perusal of the complaint dated
12.8.2014 filed under Sections 406, 504,
506 I.P.C., P.S. Tal Katora, district
Lucknow shows that in paras 3 to 7 thereof,
it has been stated by the petitioner that he
gave loan of Rs.2 lacs on 20;11.2010 to the
private respondent Jagdish Saran who
assured to return it in a month. Thereafter,
when the petitioner tried to recover his
loan, the private respondent assured him on
telephone that he will return the loan.
Thereafter again, he assured that since he is
about to get some money he would return
the loan. Ultimately, the private respondent
stopped coming to the petitioner's home
and also stopped talking on telephone.
Lastly, when the petitioner contacted him
from
his
(private
respondent)
other
telephone number, the latter abused and
threatened him.

Contrary to the averments made
in the complaint , it has been contended
that the money was entrusted to the private
respondent who with a dishonest intention
misappropriated it for his own use to the
detriment of the petitioner.

A
further
perusal
of
the
averments made in the complaint reveals
that the issue between the parties is a pure
case of lending and borrowing, may be
even a friendly loan. However, by no
stretch of imagination, it can be an
entrustment.

7. In the case of Kailash Kumar
Samwatia (supra), the appellant entrusted a
sum of Rs.1,50,200/- to the accused at the
instance of another accused/Head Cashier
of the State Bank of India and for preparing
the drafts. Later on, he was informed that
the money handed over by him was missing
from the cash counter. On this, the
informant appellant filed a written report
on the basis of which case was instituted
and
investigation
undertaken.
Hon'ble
Supreme Court in para 9 has explained the
basic requirements to bring home the
accusations under Section 405 I.P.C. which
reads as under :

"The basic requirement to bring
home the accusations under section 405
are the requirements to prove con-jointly
(1) entrustment, and (2) whether the
accused was actuated by the dishonest
intention or not; misappropriated it or
converted it to his own use to the detriment
of the persons who entrusted it. As the
question of intention is not a matter of
direct proof, certain broad tests are
envisaged which would generally afford
useful guidance in deciding whether in a
particular case the accused had mens rea
for the crime."

In Kailash Kumar Sanwatia' case
(supra), there was a loss of money,
therefore, it was held that ingredients
necessary to constitute criminal breach of
trust were absent and the accused persons
cannot be convicted under Section 409
I.P.C. Although, there was an entrustment,
however, due to an intervening situation,
the accused person whom the money was
entrusted was incapacitated from carrying
out the job and therefore, it was held that
the provisions of Section 405 or 409 I.P.C.
are not attracted.

8. In the present case, even the
element of entrustment is absent and
therefore, learned Magistrate vide order
dated 20.11.2017 has rightly rejected the
complaint on the ground that the matter is
purely of civil nature. Likewise, the learned
872 INDIAN LAW REPORTS ALLAHABAD SERIES
revisional court has also rejected the
revision on the same ground of the matter
of being civil nature and since no element
of criminal breach of trust is borne out
from the record, therefore, ingredients of
Section 405 I.P.C. are absent. Learned
Courts below have rightly held that the
dispute is purely of civil nature.

9. I find that there is a growing
tendency in the business circles to convert
purely civil disputes into criminal cases so
as to unnecessary harass the common man
by giving a criminal colour to civil
dispute(s). In this context, Hon'ble Supreme
Court in the case reported in (2014)10 SCC
663 Binod Kumar and others versus
State of Bihar and another while relying
on Indian Oil Corporation versus NEPC
India Limited (2006)6 SCC 736 held in
paras 10 and 11 as under :

"10. In Indian Oil Corporation
versus NEPC India Limited, this Court has
summarized the principles relating to
exercise of jurisdiction under Section 482
Cr.P.C. to quash complaints and criminal
proceedings as under:-(SCC pp. 747-48,
para 12)

"12.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 Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre (1988) 1
SCC 692, State of Haryana v. Bhajan
Lal,1992 Supp (1) SCC 335; Rupan Deol
Bajaj v. Kanwar Pal Singh Gill (1995) 6
SCC 194, Central Bureau of Investigation
v. Duncans Agro Industries Ltd (1996) 5
SCC 591; State of Bihar v. 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
[pic]Hridaya Ranjan Prasad Verma v.
State of Bihar (2000) 4 SCC 168, M.
Krishnan v. Vijay Singh (2001) 8 SCC 645
and Zandu Pharmaceutical 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 mala fides/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,
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
3-5 All. Pawan Kumar Tyagi Vs. State of U.P. & Anr.
873
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 proceeding 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.

"11. Referring to the growing
tendency in business circles to convert
purely civil disputes into criminal cases, in
paragraphs (13) and (14) of the Indian Oil
Corporation's case (supra), it was held as
under:-

"13. 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,
[pic]leading
to
irretrievable
breakdown 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 through criminal prosecution
should be deprecated and discouraged. In
G. Sugar Suri v. State of U.P., this Court
observed : (SCC p. 643. para 8)

''8....It is to be seen if a 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. 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 the High Court is to exercise its
jurisdiction under Section 482 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.'

14.
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 CrPC more
frequently, where they discern malice or
frivolousness or ulterior motives on the
part of the complainant. Be that as it may."

(Emphasised by me)

10. In view of the law laid down by
Hon'ble
Supreme
Court
and
also
considering the material on record, no
offence under Section 406 I.P.C. is made
out. The petitioner
and
the
private
respondent were known and familiar to
874 INDIAN LAW REPORTS ALLAHABAD SERIES
each other and because of this, the
petitioner gave a loan to the private
respondent, therefore, the dispute is purely
of civil nature. Hence, no offence under
Section 406 is made out. Criminal
proceedings cannot be invoked as a short
cut for the purely civil remedies as the
latter is more time consuming.

11. As regards the other allegation
with regard to Sections 504, 506 I.P.C.,
there
is
a
bald
assertion
in
the
complaint that the petitioner on being
demanded his money was threatened,
however,
in
support
thereof,
the
statement under Sections 200 and 202
CrPC recorded by the trial court have
not been filed with the present petition.
It appears to be an effort on the part of
the petitioner to settle civil dispute and
claims which do not involve any
criminal offence by applying pressure
through criminal prosecution.

12. In view of the above, this
Court does not find any fault with the
orders impugned in the present petition.
No case is made out to invoke the
extraordinary writ jurisdiction under
Section 482 CrPC.

13. The petition fails and is
accordingly dismissed. The petitioner is
at liberty to avail other remedies,
provided under law, for recovery of his
money.
----------
(2020)03-05ILR A874
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2020

BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.
Special Appeal No. 65 of 2020

The Director General, R.P.F. Railway Board
New Delhi & Ors. ...Appellants
Versus
Rajiv Kumar Singh ...Respondent

Counsel for the Appellants:
Sri Praveen Kumar Srivastava

Counsel for the Respondents:
Sri Vijay Gautam, Sri Ambrish Chatterji

(A) Civil Law-Railway Protection Force
Rules, 1987 - Section 21 -Intra-Court
Special Appeal - - made by the Central
Government
in
exercise
of
powers
conferred by of the Railway Protection
Force Act, 1957 which are referrable to
subject mentioned under Entry 22 of List 1
of the Seventh Schedule - special appeal
against any revisional or appellate order
passed under the aforesaid Act would be
maintainable

The appellate and revisional jurisdiction having
thus been exercised under a Central Act in
respect of a matter enumerated under the
Union List and not in respect of a matter under
the State list or the Concurrent List of the
Seventh Schedule of the Constitution of India,
the exclusion under Chapter VIII Rule 5 would
not be attracted and therefore special appeal
would be maintainable. (para 12)

(B) Civil Law-Railway Protection Force
Rules, 1987-- Rule 52 -Concealment of
facts in declaration form - clear obligation
upon a prospective candidate to make a
candid and truthful disclosure in respect
of
the
information
sought
in
the
verification form - non disclosure or
concealment of the material facts would
have a direct link to the suitability of the
person for being appointed in service

As per Rule 52, a prospective employee may be
refused
employment
on
the
ground
of
unsatisfactory
antecedents
and
character.
Suppression of material information or making a
false statement in reply to specific queries in the