# Payal Agarwal & Anr v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 686
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-09
- **Case number:** Misc. Bench No.21326 of 2020
- **Bench:** Devendra Kumar Uradhyaya, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/payal-agarwal-anr-v-state-of-u-p-ors-46629
- **Pages:** 6

## Headnote

11 All. Payal Agarwal & Anr. Vs. State of U.P. & Ors.
687
G.A.,Mr. Amarjeet Singh Rakhra, Mr. R.B.S. Rathaur,
Mr. Shashank Dhaon, Mr. Shikhar Mishra and Mr.
Tushar Hirwani.

A. Practice & Procedure - The Court held that an
F.I.R. can be quashed on the basis of mutual
compromise arrived at between the parties, even if an
offence is not compoundable under Section 320 of
Cr.P.C. (Para 13)

Writ Petition Allowed. (E-10)

List of Cases cited:

## Text

686 INDIAN LAW REPORTS ALLAHABAD SERIES
Prescribed
Authority.
Once
the
complete
procedure for fixation of surcharge and authority
concerned for the purpose has been prescribed in
the Rules framed under the Act, which have
been duly notified, in our opinion the mandate of
the law stands satisfied.

16. The District Magistrate is the
competent authority for fixation of amount of
surcharge recoverable from Pradhan, UpPradhan and Member and the District Panchayat
Raj Officer is competent authority for fixing the
amount of surcharge in case of officers and
servants.

17. The argument that the Prescribed
Authority as well as Collector have to be
separate persons is merely to be noticed and
rejected as the same authority can be conferred
with two different powers. In any case, recovery
of an amount due from any person is merely a
process of execution and power can be exercised
even by the same authority, or any other
authority prescribed under the Act.

18. It may also be seen in the light of the
fact that in the definition of "Collector", it is not
only "District Magistrate", rather Sub-divisional
Magistrate, Additional Collector, Additional
District
Magistrate
and
Additional
Sub
Divisional Magistrate are also included therein.

19. The opinion expressed by learned
Single Judge of this Court in Uday Pratap
Singh's case (supra) is not in correct
perspective of the provisions of the Act and the
Rules, hence may not be treated as precedent to
be followed, as it is does not lay down the law
correctly.

20. For the reason mentioned above, the
question no. 1, as referred to be considered by
Division Bench, is answered in positive. In
view of the U.P. Panchayat Raj (Amendment)
Rules, 1969, by which Chapter- XIII with the
heading ''SURCHARGE' was inserted in the
U.P. Panchayat Raj Rules, 1947 in exercise of
powers under Section 110 by the State
Government, as notified in the Official Gazette
on May 31, 1969, the District Magistrate is the
''Prescribed Authority' for imposing surcharge
on Pradhan, Up-Pradhan and Members under
Section 27(2) and the District Pachayat Raj
Officer
is the
Prescribed
Authority
for
imposing surcharge upon the Officers or
servants of the Gaon Sabha.

21. As far as the question no. 2 is
concerned, the answer thereof is in negative. The
decision rendered by learned Single Judge of
this Court in Uday Pratap Singh's case (supra)
whereby a bunch of petitions were decided, does
not lay down the law correctly.

22.

The reference is,
accordingly,
answered.

23. The matters shall now be placed before
learned Single Judge on January 17, 2021, for
further consideration.
----------
(2021)12ILR A686
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.11.2021

BEFORE

THE HON'BLE DEVENDRA KUMAR URADHYAYA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Misc. Bench No.21326 of 2020

Payal Agarwal & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Mr. Nadeem Murtaza,Mr. Anuj Dayal, Mr. Paavan
Awasthi, Mr. Prashant Singh Atal and Mr. Prashast
Puri

Counsel for the Respondents:
11 All. Payal Agarwal & Anr. Vs. State of U.P. & Ors.
687
G.A.,Mr. Amarjeet Singh Rakhra, Mr. R.B.S. Rathaur,
Mr. Shashank Dhaon, Mr. Shikhar Mishra and Mr.
Tushar Hirwani.

A. Practice & Procedure - The Court held that an
F.I.R. can be quashed on the basis of mutual
compromise arrived at between the parties, even if an
offence is not compoundable under Section 320 of
Cr.P.C. (Para 13)

Writ Petition Allowed. (E-10)

List of Cases cited:

1. B.S. Joshi & ors. Vs St. of Har. & anr. (2003) 4 SCC
675

2. Gian Singh Vs St. of Pun. & anr. (2012) 10 SCC 303

3. Narinder Singh & anr. Vs St. of Pun. (2014)
Criminal Law Journal 2436

4. Parabatbhai Aahir @ Parabatbhai Bhimsinghbhai
Karmur & ors. Vs St. of Guj. & anr. (2017) 9 SCC 641

5. Social Action Forum for Manav Adhikar & anr. Vs UOI,
Ministry of Law & Justice & ors. (2018) 10 SCC 443

6. St. of Har.Vs Bhajan Lal 1992 Supplementary (1)
SCC 335

7. Nikhil Merchant Vs Central Bureau of Investigation
& anr. (2008) 9 SCC 677

8. Manoj Sharma Vs St. of ors. (2008) 16 SCC 1

9. Anita Maria Dias Vs St. of Mah.a (2018) 3 SCC 290

10. Kapil Agarwal & ors Vs Sanjay Sharma & ors.
(2021) 5 SCC 524
(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. Heard Mr. Nadeem Murtaza and Mr.
Prashant
Puri,
learned
counsel
for
the
petitioners, Mr. Amarjeet Singh Rakhra, learned
counsel for the respondent No.4 and Mr. S.P.
Singh, learned A.G.A. for the State.

2. This writ petition under Article 226 of
the Constitution of India (in short Constitution)
has been filed by the petitioners to quash the
First Information Report (in short F.I.R.)
registered at Case Crime No.0531 of 2020,
under Sections 471, 468, 467, 420 and 406 of
Indian Penal Code (in short I.P.C.) at Police
Station Sarojani Nagar, District Lucknow and
not to proceed, prosecute or arrest the petitioners
on the basis of the aforesaid F.I.R.

3. Previously, after going through the
record and having heard the learned counsel for
the petitioners as well as learned A.G.A. and the
counsel for the private respondent No.4, this
Court gathered that prima-facie the case relates
to business/corporate transactions and the F.I.R.
has been lodged due to some personal feud
between two real brothers. This Court deemed it
proper to persuade the parties to settle the
dispute amicably. 'Abraham Lincoln' has said
"discourage litigation persuade your neighbours
to compromise whenever you can. Point out to
them how the nominal winner is often a real
loser in fees, expenses and waste of time." Hence
the Court with the consent of petitioners and
respondent No.4 gave them chance to settle their
dispute amicably through the process of
Mediation/Conciliation. Accordingly, the matter
was so referred.

4. Today the counsel for the petitioners as
well as private respondent No.4 appeared and
submitted that they have settled their dispute
amicably with the help of Mediator and
blessings of the mother of petitioner No.1 and
respondent No.4. So F.I.R. may be quashed, as
there is no dispute or bickerings left between the
petitioners and respondent No.4. The counsel for
the petitioners as well as private respondent
relied upon the following case laws:-

1. B.S. Joshi and others Vs. State of
Haryana and another (2003) 4 SCC 675.

2. Gian Singh Vs. State of Punjab and
another (2012) 10 SCC 303.
688 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Narinder Singh and anothers Vs.
State of Punjab (2014) Criminal Law Journal
2436.

4. Parbatbhai Aahir Alias Parbatbhai
Bhimsinghbhai Karmur and others Vs. State of
Gujarat and another (2017) 9 SCC 641.

5. Social Action Forum for Manav
Adhikar and another Vs. Union of India,
Ministry of Law and Justice and others (2018)
10 SCC 443.

5. This Court is empowered under Section
482 of the Code of Criminal Procedure (in short
Cr.P.C.) and under Article
226 of the
Constitution to quash the F.I.R. in certain
circumstances and relating to certain offences. In
the case of State of Haryana Vs. Bhajan Lal
1992 Supplementary (1) SCC 335, Hon'ble the
Apex Court has considered in detail the scope of
the power of the High Court under Section 482
of the Cr.P.C. and/or under Article 226 of the
Constitution to quash the F.I.R.

6. In B.S. Joshi and others Vs. State of
Haryana and another (Supra) the Hon'ble Apex
Court again explained the ambit of the inherent
powers of the High Court under Section 482 of
the Cr.P.C. read with Article 226 and 227 of the
Constitution to quash the criminal proceedings.

7. In Nikhil Merchant Vs. Central Bureau
of Investigation and Another (2008) 9 SCC
677, where the dispute was settled between the
parties on the basis of compromise the Hon'ble
Apex Court has observed as under:-

" 30. In the instant case, the disputes
between the Company and the Bank have been
set at rest on the basis of the compromise
arrived at by them whereunder the dues of the
Bank have been cleared and the Bank does not
appear to have any further claim against the
Company. What, however, remains is the fact
that certain documents were alleged to have
been created by the appellant herein in order to
avail of credit facilities beyond the limit to
which the Company was entitled. The dispute
involved herein has overtones of a civil dispute
with certain criminal facets. The question which
is required to be answered in this case is
whether the power which independently lies with
this Court to quash the criminal proceedings
pursuant to the compromise arrived at, should at
all be exercised?

31. On an overall view of the facts as
indicated hereinabove and keeping in mind the
decision of this Court in B.S. Joshi's case and
the
compromise
arrived
at
between
the
Company and the Bank as also clause 11 of the
consent terms filed in the suit filed by the Bank,
we are satisfied that this is a fit case where
technicality should not be allowed to stand in
the way in the quashing of the criminal
proceedings, since, in our view, the continuance
of the same after the compromise arrived at
between the parties would be a futile exercise."

8. Again the Hon'ble Supreme Court in
Manoj Sharma Vs. State of others (2008) 16
SCC 1 has held as under:-

" 27. There can be no doubt that a
case under Section 302 IPC or other serious
offences like those under Sections 395, 307 or
304B cannot be compounded and hence
proceedings in those provisions cannot be
quashed by the High Court in exercise of its
power under Section 482 Cr.P.C. or in writ
jurisdiction on the basis of compromise.
However, in some other cases, (like those akin to
a civil nature) the proceedings can be quashed
by the High Court if the parties have come to an
amicable settlement even though the provisions
are not compoundable. Where a line is to be
drawn will have to be decided in some later
decisions of this Court, preferably by a larger
bench (so as to make it more authoritative).
11 All. Payal Agarwal & Anr. Vs. State of U.P. & Ors.
689
Some guidelines will have to be evolved in this
connection and the matter cannot be left at the
sole unguided discretion of Judges, otherwise
there may be conflicting decisions and judicial
anarchy. A judicial discretion has to be
exercised on some objective guiding principles
and criteria, and not on the whims and fancies
of individual Judges. Discretion, after all,
cannot be the Chancellor's foot."

9. In Parbatbhai Aahir Alias Parbatbhai
Bhimsinghbhai Karmur and others Vs. State of
Gujarat and another (2017) 9 SCC 641 the
three judges Bench of Hon'ble Apex Court has
summarized the broad principles in this regard
as under:-

"16. The broad principles which
emerge from the precedents on the subject, may
be summarised in the following propositions:

16.1
Section
482
preserves
the
inherent powers of the High Court to prevent an
abuse of the process of any court or to secure
the ends of justice. The provision does not confer
new powers. It only recognises and preserves
powers which inhere in the High Court.

16.2 The invocation of the jurisdiction
of the High Court to quash a First Information
Report or a criminal proceeding on the ground
that a settlement has been arrived at between the
offender and the victim is not the same as the
invocation of jurisdiction for the purpose of
compounding an offence. While compounding an
offence, the power of the court is governed by
the provisions of Section 320 of the Code of
Criminal Procedure, 1973. The power to quash
under Section 482 is attracted even if the offence
is non-compoundable.

16.3 In forming an opinion whether a
criminal proceeding or complaint should be
quashed in exercise of its jurisdiction under
Section 482, the High Court must evaluate
whether the ends of justice would justify the
exercise of the inherent power.
16.4 While the inherent power of the High
Court has a wide ambit and plenitude it has to
be exercised; (i) to secure the ends of justice or
(ii) to prevent an abuse of the process of any
court.

16.5. The decision as to whether a
complaint or First Information Report should
be quashed on the ground that the offender and
victim have settled the dispute, revolves
ultimately on the facts and circumstances of
each case and no exhaustive elaboration of
principles can be formulated.

16.6. In the exercise of the power
under Section 482 and while dealing with a
plea that the dispute has been settled, the High
Court must have due regard to the nature and
gravity of the offence. Heinous and serious
offences involving mental depravity or offences
such as murder, rape and dacoity cannot
appropriately be quashed though the victim or
the family of the victim have settled the dispute.
Such offences are, truly speaking, not private in
nature but have a serious impact upon society.
The decision to continue with the trial in such
cases is founded on the overriding element of
public interest in punishing persons for serious
offences.

16.7 As distinguished from serious
offences, there may be criminal cases which
have an overwhelming or predominant element
of a civil dispute. They stand on a distinct
footing in so far as the exercise of the inherent
power to quash is concerned.

16.8.
Criminal
cases
involving
offences which arise from commercial, financial,
mercantile, partnership or similar transactions
with an essentially civil flavour may in
appropriate situations fall for quashing where
parties have settled the dispute.
690 INDIAN LAW REPORTS ALLAHABAD SERIES

16.9. In such a case, the High Court
may quash the criminal proceeding if in view of
the compromise between the disputants, the
possibility of a conviction is remote and the
continuation of a criminal proceeding would
cause oppression and prejudice; and

16.10. There is yet an exception to the
principle set out in propositions (16.8) and
(16.9) above. Economic offences involving the
financial and economic well-being of the state
have implications which lie beyond the domain
of a mere dispute between private disputants.
The High Court would be justified in declining
to quash where the offender is involved in an
activity akin to a financial or economic fraud or
misdemeanour. The consequences of the act
complained of upon the financial or economic
system will weigh in the balance."

10. In Anita Maria Dias Vs. State of
Maharashtra (2018) 3 SCC 290 the Hon'ble
Apex Court re-hashed the principles and
guidelines about the quashing of the F.I.R on the
basis of mutual settlement, this was a case where
an F.I.R. was lodged under Sections 406, 420,
467 and 471 read with section 34 of Indian Penal
Code and under the provisions of Negotiable
Instrument Act. The parties settled their dispute
through mutual compromise. The Apex Court
while passing the order to quash the F.I.R.
observed as under:-

7. In a case like this, where the
proceedings are still at initial and nascent stage,
the High Court should have exercised its
discretion in quashing the proceedings. Law in
this behalf is well settled by catena of judgments
of this Court including Parbatbhai Aahir & Ors.
v. State of Gujarat and Gian Singh v. State of
Punjab.

11. From the perusal of the judgment in
Social Action Forum For Manav Adhikar and
another Vs. Union of India, Ministry of Law
and Justice and others(supra) it is apparent that
similar line of ratio was propounded/summarised
by the Hon'ble Apex Court.

12. In Kapil Agarwal and others Vs. Sanjay
Sharma and others (2021) 5 SCC 524 the
Hon'ble Apex Court held as under:-

18.2 As held by this Court in the case
of Parbatbhai Aahir v. State of Gujarat Section
482 Cr.P.C. is prefaced with an overriding
provision. The statute saves the inherent power of
the High Court, as a superior court, to make such
orders as are necessary (i) to prevent an abuse of
the process of any Court; or (ii) otherwise to
secure the ends of justice. Same are the powers
with the High Court, when it exercises the powers
under Article 226 of the Constitution.

13. The law laid down by the Apex Court
in the above referred case laws makes it clear
that an F.I.R. can be quashed on the basis of
mutual compromise arrived at between the
parties, even if an offence is not compoundable
under Section 320 of Cr.P.C. relating to certain
offences considering the facts and circumstances
of the case. In the present matter the dispute
between petitioners and private respondent
(respondent No.4) relates to business/corporate
transactions. The petitioner No.1 and respondent
No.4 are real brothers and petitioner No.2 is
wife of the petitioner No.1. They on the
initiative of this Court, with blessings of their
mother and sincere efforts of mediators and their
counsel have settled their dispute amicably. The
terms and conditions of settlement has been
written down in the settlement deed dated
08.10.2021. Thus it appears just to quash the
impugned F.I.R. registered at Case Crime
No.0531 of 2020, under Sections 471, 468, 467,
420 and 406 of I.P.C. at Police Station Sarojani
Nagar, District Lucknow.

14. Accordingly, this writ petition is
allowed. The impugned F.I.R. is quashed on the
11 All. Mohd. Saif Ali & Ors. Vs. Addl. Commissioner (Judicial) Ayodhya Division, Faizabad & Ors.
691
basis of compromise between the petitioners and
respondent No.4. The settlement deed dated
08.10.2021 shall remain integral part of this
order.

15. The counsel for the petitioners is
directed to upload the settlement deed dated
08.10.2021.

16. Office is directed to issue the certified
copy of this order alongwith the copy of
settlement deed dated 08.10.2021.

17. Mr. Nadeem Murtaza, learned counsel
for the petitioners and Mr. Amarjeet Singh
Rakhra, learned counsel for the respondent No.4
deserve appreciation of this Court for putting
their efforts to get the dispute settled between
the
parties
amicably.
Their
efforts
are
commendable.
----------
(2021)12ILR A691
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.12.2021

BEFORE

THE HON'BLE J.J.MUNIR, J.

Misc. Single No. 22136 of 2021

Mohd. Saif Ali & Ors. ...Petitioners
Versus
Addl.
Commissioner
(Judicial)
Ayodhya
Division, Faizabad & Ors. ...Respondents

Counsel for the Petitioners:
Santosh Kumar Mehrotra, Ishwar Dutt Shukla

Counsel for the Respondents:
C.S.C., Ajeet Srivastava, Mohan Singh

A. Practice & Procedure - Civil Procedure Code,
1908: Order IX Rule 8, 9(1) - The order of
dismissal in default can be set aside by the Court if
the plaintiff satisfies the Court by showing sufficient
cause for non-appearance. The rule makes it
pellucid that sufficiency of cause on the date of
default is important and not the past conduct
of the parties. (Para 15)

It is a statutory principle of law that in judging the
sufficiency of cause in matters of default, the Court
should lean in favour of hearing rather than shutting
out the doors of hearing. (Para 18)

Writ Petition Allowed. (E-10)

List of Cases cited:

1. Ram Raj & ors. Vs Deputy Director of Consolidation
& ors. 1988 RD 139

2. Phool Chand Vs Vth A.D.J. & ors. 1983 ARC 637

3. Sangram Singh Vs Election Tribunal, Kotah & ors.
AIR 1955 SC 425 (followed)

4. Ramji Das & anr Vs Mohan Singh 1978 RC 496 (SC)
(followed)

5. The Collector, Land Acquisition, Anantnag & anr.
Vs. Mst. Katiji & ors. (1987) 2 SCC 107 (followed)
(Delivered by Hon'ble J.J. Munir, J.)

1. Perused the Office report dated
06.12.2021, regarding service of notice upon
respondent nos. 3, 6, 7 and 8 by registered post.
The report reads to the following effect:-

"Notice were issued on 05.10.2021
and booked by the post office on 23.10.2021,
25.10.2021 through regd. post at correct address.
Since then, neither any undelivered cover/AD
received back nor any power has been filed on
behalf of O.P. Nos. 3, 6, 7, 8.

Sd/- illegible
 06.12.2021.
 RO
 M.S.-I"

2. A perusal of the aforesaid report, shows
that service upon the said respondents, must be
deemed sufficient. Accordingly, service upon
respondent nos. 3, 6, 7 and 8, is held good.