# Radhey Shyam Gupta & Ors v. State of U.P. & Anr

- **Citation:** (2020) 8 ILRA 659
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-29
- **Case number:** Application U/S 482 No. 1697 of 2016
- **Bench:** Rahul Chaturvedi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-gupta-ors-v-state-of-u-p-anr-45886
- **Pages:** 11

## Headnote

A. Criminal law - Code of Criminal
Procedure,1973-Section 482 - Indian
Penal Code, 1860 - Sections 147, 148,
149,
406,
329,
386-quashing
ofproceedings initiated maliciously with
an
ulterior
motive
for
wreaking
vengeance with a view to spite him due
to private and personal grudge-while
the grievance of the rival parties has
been addressed by the civil court and
written statements of the respective
defendants
have
already
been
submitted then no justifiable reason
arises to array the stranger the selfProclaimed Power of Attorney Holder
without any requisite and relavant
document
to
initiate
criminal
case
against the applicant-no medical injury
report corroborates the allegations of
assault with lathi danda-its simply
embellishment just switch over the
episode into a serious and grimmer
drama-therefore,
liable
to
be
quashed.(Para 12 to 37)
660 INDIAN LAW REPORTS ALLAHABAD SERIES
The application is allowed. (E-6)

List of cases cited:-

## Text

8 All. Radhey Shyam Gupta & Ors. Vs. State of U.P. & Anr.
659
Board, Bijnor subject to the following
conditions:

(i) that the natural guardian/
father Vedpal Singh Malik will furnish
an undertaking that upon release on bail
the juvenile will not be permitted to
come into contact or association with any
known criminal or allowed to be exposed
to any moral, physical or psychological
danger and further that the father will
ensure that the juvenile will not repeat
the offence.

(ii) The revisionist and his father
Vedpal Singh Malik will report to the District
Probation Officer on the first Monday of
every calendar month commencing with the
first Monday of July, 2020 and if during any
calendar month the first Monday falls on a
holiday, then on the following working day.

(iii) The District Probation Officer
will keep strict vigil on the activities of the
revisionist and regularly draw up his social
investigation report that would be submitted to
the Juvenile Justice Board, Bijnor on such
periodical basis as the Juvenile Justice Board
may determine.

(iv)
The
party
shall
file
computer generated copy of such order
downloaded from the official website of
High Court Allahabad.

(v) The computer generated
copy of such order shall be self attested
by the counsel of the party concerned.

(vi)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy
of the order from the official website of
High Court Allahabad and shall make a
declaration
of
such
verification
in
writing.
----------
(2020)08ILR A659
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.07.2020

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Application U/S 482 No. 1697 of 2016

Radhey Shyam Gupta & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Amit Saxena, Sri Mushir Khan, Sri
Saurabh Singh

Counsel for the Opposite Parties:
A.G.A., Sri Abdul Majid, Ms. Sufia Saba

A. Criminal law - Code of Criminal
Procedure,1973-Section 482 - Indian
Penal Code, 1860 - Sections 147, 148,
149,
406,
329,
386-quashing
ofproceedings initiated maliciously with
an
ulterior
motive
for
wreaking
vengeance with a view to spite him due
to private and personal grudge-while
the grievance of the rival parties has
been addressed by the civil court and
written statements of the respective
defendants
have
already
been
submitted then no justifiable reason
arises to array the stranger the selfProclaimed Power of Attorney Holder
without any requisite and relavant
document
to
initiate
criminal
case
against the applicant-no medical injury
report corroborates the allegations of
assault with lathi danda-its simply
embellishment just switch over the
episode into a serious and grimmer
drama-therefore,
liable
to
be
quashed.(Para 12 to 37)
660 INDIAN LAW REPORTS ALLAHABAD SERIES
The application is allowed. (E-6)

List of cases cited:-

1. I.O.C. Vs NEPC India Ltd. (2006) VI SCC 736

2. Ahmad Ali Quraishi & anr. Vs St. Of U.P. &
anr. in CRLA No. 138 of 2020

3. St. Of Haryana & ors. Vs Bhajan Lal &
ors,(1992) suppl. 1 SCC 335

4. R K Dalmia Vs Delhi Administration

5. Satish Chandra Ratan Lal Shah Vs St. Of
Guj. & anr. in CRLA No. 9 of 2019

6. B.Suresh Yadav Vs Sharifa Bee & anr.
(2007) 13 107

7. Md. Allauddin Khan Vs St. of Bih. in CRLA
No. 675 of 2019

8. CBI Vs Arvind Khanna in CRLA No. 1420 of 2017

(Delivered by Hon'ble Rahul Chaturvedi, J.)

1. Heard Sri Saurabh Singh, learned
counsel for the applicants, Ms. Sufia
Saba, learned counsel for opposite party
no. 2 and learned AGA for the State.

2. After exchange of pleadings
between the parties, the matter riped up
for final arguments.

3. The matter was heard at length
and order was reserved to be dictated in
Chamber.

4. Considering learned arguments
of the rival parties, it is imperative to
extract bare skeletonized facts of the case
for proper appraisal and adjudication in
the matter.

5. The prayer sought by the
applicants is for invoking extraordinary
jurisdiction of this Court under section 482
Cr.P.C. and to quash proceedings of Criminal
Case No. 3302 of 2015 (State v. Radhey
Shyam Gupta and others) under sections 147,
148, 149, 406, 329 and 386 IPC, P.S. Barra,
District Kanpur Nagar pending in the court of
I-Additional Chief Metropolitan Magistrate,
Kanpur Nagar.

6. It is pertinent to mention here
that by virtue of Court's order dated
22.01.2016 passed by coordinate Bench
of this Court, further proceedings of the
instant case were stayed and notices were
issued to opposite party no. 2.

FACTS OF THE CASE

7. One Munni Devi resident of
Kolkata is lease holder of plot no. 1342,
Block -W-II, Phase Juhi Kala, Damodar
Nagar, Kanpur Nagar admeasuring are
387 Square yards (herein after referred to
as ''dispute land'). This disputed plot was
a
lease
hold
property
of
Kanpur
Development Authority vide lease deed
dated 18.01.1978 for a period of 99
years, as she as resident of Kolkata, due
to some financial crunch, she had to enter
into an agreement to sell the dispute
property on 27.10.2010 with one Ms.
Mamta Gupta (Applicant no. 2). The
covenants of the aforesaid agreements to
sell stood as under:

(a)
Total
amount
of
sale
consideration is 25 lakhs, out of which
she acknowledged that she received five
post dated cheques of different dates for
an amount of Rs. 2 Lakhs (the detail of
the aforesaid cheques were quoted on the
foot of the instrument.

(b) Ms. Munni Devi assured
that she would get the disputed land
8 All. Radhey Shyam Gupta & Ors. Vs. State of U.P. & Anr.
661
freehold within a period of one year and
get the sale-deed registered.

(c) The possession of the
disputed land has not been handed over
till the land is not declared as free hold
and would be handed over on the date of
the registration of the sale-deed.

8. In paragraph 5 of the petition, it
has been alleged by the deponent, Ms.
Mamta Gupta that on the same date yet
another agreement to sell was executed
by way of Joint Notarized Affidavit
(Annexure no.3), signed by contesting
parties, namely Munni Devi and Mamta
Gupta (Applicant no. 2), whereby the
terms of the deed were changed upside
down and instead agreed sum of Rs. 25
Lakhs, it was mentioned therein that the
total consideration of Rs. 35 Lakhs, out
of which Munni Devi has received Rs. 25
Lakhs and only 10 Lakhs were left to be
paid by applicant no. 2. Not only this, the
original lessee, Ms. Munni Devi has
handed
over
the
actual
physical
possession of the disputed property to
Mamta Gupta (Applicant No. 2). It was
also agreed upon that Munni Devi would
get the land in question free hold within a
period of one year and get the "sell deed"
registered.

9. Perusal of the record reveals that
after
receiving
the
actual
physical
possession, applicant no. 2, Ms. Mamta
Gupta has raised two pucca rooms as
well as the address. In support of this, the
bill of electricity department for the
month of July/August, 2015 is annexed
as Annexure No. 4 to the petition.

10. Since Munni Devi failed to get
land freehold for her requisite inaction
and on account of providence whereby
the husband of Mamta Gupta went in
renal failure, resultantly, she in acute
financial duress, she could not file the
suit
for
Specific
Performance
for
executing the actual sale-deed through
decree of court.

11. Since the prices of the land
were accelerating sky high, Munni Devi
has filed a suit against Mamta Gupta
(Applicant No. -2) bearing Original Suit
No. 1553 of 2015 in the court of the Civil
Judge (Senior Division), Kanpur Nagar
with the prayer for mandatory injunction
against the defendant Mamta Devi
(Applicant No. -2) to vacate the disputed
property and hand over the possession of
the disputed property within the time
allowed, along with pendentalite and
future damages. No interim relief was
granted in favour of plaintiff, Munni
Devi in the aforesaid Suit. Contention
raised by counsel for applicant that mere
filing of the above suit with above prayer
clearly establishes and admits that the
actual physical possession of "disputed
property" was lying with the applicants.

12. Meanwhile, during pendency of
suit the original lessee, Munni Devi came
to contact with a rank stranger, namely;
Kaptan Singh, s/o late Dashrath Singh r/o
W-Block , Keshar Nagar, P.S. Naubasta,
Kanpur Nagar (the informant of present
FIR) and alleged "Power of Attorney
Holder" of Mrs. Munni Devi, who has
lodged the present FIR of Case Crime
No. 645 of 2015 through an application
filed an application under section 156(3)
Cr.P.C. on 15.09.2015, under sections
147, 148, 149, 406, 329 and 386 IPC
against Ms. Mamta Gupta, Radhey
Shyam
Gupta
and
three
unknown
persons. In the aforesaid FIR, opposite
party no. 2 Kaptan Singh projected
662 INDIAN LAW REPORTS ALLAHABAD SERIES
himself as "Power of Attorney Holder" of
Mrs. Munni Devi. Browsing of the FIR
indicates that opposite party no. 2 came
out of blue in the month of August, 2015.
The aforesaid FIR spells out the entire
story with addition that out of five
cheques, only one cheque of Rs. 2.00
Lakhs was got encashed but future of rest
of the cheques were not known, Ms.
Mamta Gupta got dispassionate so the
sale-deed could not be executed, even
after lapse of a year. In the rest of the
averments, opposite party no. 2 has
painted a story that after receiving Power
of Attorney from Mrs. Munni Devi on
05.08.2015, he visited the disputed site
on 20.08.2015, where he (opposite party
no. 2- Kaptan Singh) was maltreated and
hurled with filthy abuses by applicant no.
2 (Ms. Mamta Gupta), her husband-
Radhey
Shyam
Gupta
and
other
accomplices and assaulted by lathis,
dandas, kicks and fists. Meanwhile, Ms.
Mamta Gupta extended threats to life by
whimpering sensation of knife on his
chest, got blank paper signed. It was also
contended that injured Ram Pratap Singh
(an associate of opposite party no. 2) was
not medically examined at the relevant
time rather he was claimed to be
medically examined at Ursala Hospital,
Kanpur Nagar on unknown date and
time.

13. Thereafter, an FIR was
registered by opposite party no. 2 and
later on the matter was brought on board
before coordinate Bench, whereupon the
interest of the applicants, were protected
vide interim order dated 28.11.2015
passed in Criminal Misc. Writ Petition
No. 27277 of 2015 till submission of
report under section 173 (2) Cr.P.C. The
police
after
completion
of
the
investigation in the matter submitted
charge sheet against Radhey Shyam
Gupta, Smt. Mamta Gupta, Suraj son of
Mishrilal
Gupta,
Ram
Bihari
Vishwakarma and Mishrilal son of
Chhotey Lal under the aforementioned
sections of the Penal Code.

14. Since opposite party no. 2 was
extending
threats
for
dispossessing,
applicant no. 2, Ms. Mamta Gupta filed
Original Suit No. 2077 of 2015 in the
court
of
the
Civil
Judge
(Senior
Division), Kanpur Nagar whereupon the
Civil Judge on 06.10.2015 was pleased to
grant temporary injunction in favour of
plaintiff, Ms. Mamta Gupta (Applicant
No. 2) and the said interim order is still
pending and operational (Annexure No. 6
to the petition).

15. It has been argued by the
learned counsel for the applicants that the
dispute is purely civil in nature and no
criminality could be attached to it, and
moreover the civil court is seized with
the matter and criminal proceedings has
been initiated by a rank outsider namely;
Kaptan Singh (opposite party no. 2), who
has no locus standi, is simply

16. Per contra, counsel for opposite
party no. 2, Ms. Sufia Saba in her counter
affidavit
vehemently
refuted
the
allegations made by the applicants in the
application filed under section 482
Cr.P.C. while filing counter affidavit,
sworn by opposite party no. 2- Kaptan
Singh, wherein she has categorically
admitted that there was an "agreement to
sell" between the parties on 27.10.2010
but has seriously disputed the veracity of
Annexure No. 3 (subsequent drawing
notarized affidavit), dated 27.10.2010. It
is also alleged that out of five cheques,
only one cheque was encashed and rest
of the cheques were received unpaid and
8 All. Radhey Shyam Gupta & Ors. Vs. State of U.P. & Anr.
663
no legal action has ever initiated by Mrs.
Munni Devi for this default. It has also
been brought on record that on account
of forged notarized affidavit, dated
27.10.2010, opposite party no. 2- Kaptan
Singh lodged yet another FIR against
four named accused persons, including
Ms. Mamta Gupta (applicant no. 2) and
the investigation of the case is still
pending. She also disputed that any
construction was raised by Ms. Mamta
Gupta (applicant no. 2). It is also alleged
that it is blatant attempt on the part of
applicants to grab the disputed property,
without
paying
the
agreed
sale
consideration or without having any legal
right or authority of the aforesaid
disputed property.

17. On the aforementioned factual
premises, this Court is required to
adjudicate into the matter. Having heard
the counsels at length and learned
A.G.A., the Court is keen to adjudicate
the issue in the light of settled legal
norms.

18. The first and foremost about the
locus of opposite party no. 2- Kaptan
Singh to ignite the instant criminal
prosecution. It is undisputed that the
contesting parties have entered into an
agreement to sell on 27.10.2010 and from
the FIR, it has been borne out that on
05.08.2015,
the
alleged
Power
of
Attorney was executed by Mrs. Munni
Devi in favour of Kaptan Singh but
astoundingly no power of attorney in this
regard has been annexed with the record.
There are balled averments, conferring
this stature of Kaptan Singh (opposite
party no. 2), which cannot be accepted on
its face value. For all the practical
purposes, he is rank outsider and stranger
to the ''surreptitious' deal, therefore, the
criminal prosecution initiated at his
behest would lead into nullity. In all
fairness, he ought to have annexed the
Power of Attorney allegedly executed by
Ms. Mamta Devi in his favour with the
counter affidavit. On the strength of bald
Power of Attorney the opposite party
no.2 Kaptan Singh has initiated the
criminal case.

19. Section 482 envisages inherent
power to the High Courts to pass
necessary orders for securing the ends of
justice. In the case of Indian Oil
Corporation v. NEPC India Ltd [2006
(VI) SCC 736], the Division Bench of
Hon'ble
Apex
Court
reviewed
the
precedents on the exercise of jurisdiction
under
section
482
Cr.P.C.,
and
formulated the guiding principles in the
following terms:

"12.....

(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
664 INDIAN LAW REPORTS ALLAHABAD SERIES
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 only where the complaint is so
bereft of even the basic facts which are
absolutely necessary for making out the
offence.

20. The jurisdiction of 482 Cr.P.C.,
is required to examine whether the
allegations in the complaint constitute the
ingredients, necessary for the alleged
offence, under the Penal Code. If the
aforementioned averments are taken to
be true on its face value, it do not
constitute the ingredients necessary for
the offence. The criminal proceedings
can be quashed for the allegations made
in
the
complaint
do
not
disclose
commission of the offence under the
Penal Code. The complaint must contain
the basic facts necessary for making out
offence under the Penal Code.

21. In a recent judgement passed on
30.01.2020 in case of Ahmad Ali
Quraishi and another v. The State of
Uttar
Pradesh
and
another
in
Criminal Appeal No. 138 of 2020,
Honble the Apex Court while critically
analysing scope and ambit of Section 482
Cr.P.C. took patronage of the principles
of law enunciated in the case of State of
Haryana and others versus Bhajan Lal
and others, [1992 suppl. (1) SCC 335,]
wherein seven categories of cases has
been identified where power envisaged
under Article 226/82 Cr.P.C. can be
exercised by the High Courts for
quashing criminal proceedings. Relevant
portion of the case of Ahmad Ali
Quraishi (Supra) wherein reliance upon
the principles of law laid down in the
case of State of Haryana (Supra) is
essential to be extracted herein, which
runs as under :

In paragraph 102, this Court
enumerated seven categories of cases
where power can be exercised under
Article 226/Section 482 Cr.P.C. by the
High Court for quashing the criminal
Proceedings. Paragraph 102 is as follows:

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter
XIV and of the principles of law
enunciated by this Court in a series of
decisions relating to the exercise of the
extraordinary power under Article 226
or the inherent powers under Section 482
of the Code which we have extracted and
reproduced above, we give the following
categories of cases by way of illustration
wherein such power could be exercised
either to prevent abuse of the process of
any court or otherwise to secure the ends
of justice, though it may not be possible
to lay down any precise, clearly defined
and
sufficiently
channelised
adn
inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad
8 All. Radhey Shyam Gupta & Ors. Vs. State of U.P. & Anr.
665
kinds of cases wherein such power
should be exercised.

(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) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the FIR
do not disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the Code
except under an order of a Magistrate
within the purview of Section 155(2) of
the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of
the same do not disclose the commission
of any offence and make out a case
against the accused.

(4) Where, the allegations in
the FIR do not constitute a cognizable
offence but constitute only a noncognizable offence, no investigation is
permitted by a police officer without an
order of a Magistrate as contemplated
under Section 155(2) of the Code. (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 ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.

(6) Where ther is an express
legal bar engrafted in any of the
provisions of the Code or the concerned
Act(under which a criminal proceeding is
instituted)
to
the
institution
and
continuance of the proceedings and/o
where there is specific provision in the
Code or the concerned Act, providing
efficacious redress for the grievance of
the aggrieved party.

(7)
Where
a
criminal
proceeding is manifestly attended with
malafide 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 and personal grudge."

22. It is alleged that the applicants
have
committed
an
offence
under
sections 147, 148, 149, 406, 329 and 386
IPC. Thus, it would be necessary to
examine the ingredients made in the
complaint, read on their face value,
would attract offence under the Penal
Code. In this regard, it is pertinent to reperuse Section 405 IPC once again,
which is referred to herein below:

"Section 405. Criminal breach
of trust

Whoever, being in any manner
entrusted with property, or with any
dominion over property, dishonestly
misappropriates or converts to his own
use that property, or dishonestly uses or
disposes of that property in violation of
any direction of law prescribing the
mode in which such trust is to be
discharged, or of any legal contract,
express or implied, which he has made
touching the discharge of such trust, or
wilfully suffers any other person so to do,
commits 'criminal breach of trust.'"

23. A careful perusal of aforesaid
section 405 IPC establishes the aim to
666 INDIAN LAW REPORTS ALLAHABAD SERIES
explore as to how the aforesaid section
can be divided into four categories,
which are as follows:

(a) Criminal Breach Of Trust.

(b) Entrustment

(c) Property

(d) Criminal Misappropriation

24. Now to understand aforesaid
four categories embedded in the section
in a better way, it is essential to dissect
every category in seriatum.

(a) Criminal Breach of Trust:
The offence of criminal breach of trust,
as defined under this section, is similar to
the offence of embezzlement under the
English law. A reading of the section
suggests that the gist of the offence of
criminal breach of trust is 'dishonest
misappropriation' or 'conversion to own
use' another's property, which is nothing
but
the
offence
of
criminal
misappropriation defined u/s 403. The
only difference between the two is that in
respect of criminal breach of trust, the
accused is entrusted with property or
with dominion or control over the
property.

(b) Entrustment: As the title to
the offence itself suggests, entrustment or
property is an essential requirement
before any offence under this section
takes place. The language of the section
is very wide. The words used are 'in any
manner entrusted with property'. So, it
extends to entrustments of all kindswhether to clerks, servants, business
partners or other persons, provided they
are holding a position of trust. "The term
"entrusted" found in a 405, IPC governs
not only the words "with the property"
immediately following it but also the
words "or with any dominion over the
property"

(c) Property: The definition in a
405 does not restrict the property to
movables or immovable alone. In R K
Dalmia vs Delhi Administration, the
Supreme Court held that the word
'property' is used in the Code in a much
wider sense than the expression 'movable
property'. There is no good reason to
restrict the meaning of the word
'property' to movable property only,
when it is used without any qualification
in Section 405 IPC. Whether the offence
defined in a particular section of IPC can
be committed in respect of any particular
kind of property, will depend not on the
interpretation of the word 'property' but
on the fact whether that particular kind of
property can be subject to the acts
covered by that section.

(d)
Misappropriation:
Dishonest misappropriations the essence
of this section. Dishonesty is as defined
in section 24, IPC, causing wrongful gain
or wrongful loss to a person. The
meaning of wrongful gain and wrongful
loss is defined in section 23, IPC. In
order to constitute an offence, it is not
enough to establish that the money has
not been accounted for or mismanaged. It
has to be established that the accused has
dishonestly put the property to his own
use or to some unauthorized use.
Dishonest intention to misappropriate is a
crucial fact to be proved to bring home
the charge of criminal breach of trust.

25. Thus, the aforesaid discussion
emanates that the condition necessary for
the Act to constitute an offence under
section 405 IPC is that the accused was
entrusted for some property or dominion
8 All. Radhey Shyam Gupta & Ors. Vs. State of U.P. & Anr.
667
over the property. It can be easily culled
out from the allegations made in the FIR
that out of the five post dates cheques,
one cheque of Rs. 2.00 Lakhas was
encashed by Mrs. Munni Devi.

26. From perusal of paragraph 12 of
the recent judgement passed on 3rd
January, 2019 by a Division Bench of the
Hon'ble Apex Court in Criminal Appeal
No. 9 of 2019 [Satish Chandra Ratan
Lal Shah v. State of Gujarat and
another] a similar controversy arose
wherein for recovery of a certain amount,
the respondent had instituted a summary
civil suit seeking recovery of the loan
amount
which
is
still
pending
adjudication. Whereupon Hon'ble the
Apex Court in the aforesaid matter laid
down the principle of law that mere
inability of the appellant to return the
loan amount cannot give rise to a
criminal prosecution for cheating unless
fraudulent or dishonest intention is
shown right at the beginning of the
transaction, as it is this mens rea which is
the crux of the offence. Therefore, mere
breach of promise, agreement of contract
does not constitute an offence.

27. In the case of B.Suresh Yadav
v. Sharifa Bee and another [2007(13)
107] Hon'ble the Apex Court in paragaph
12, while adjudicating a similar matter
held as under:

"12. While executing the sale
deed, the appellant herein did not make
any false or misleading representation.
There had also not been any dishonest
act of inducement on his part to do or
omit to do anything which he could not
have done or omitted to have done if he
were not so deceived. Admittedly, the
matter is pending before a competent
civil court. A decision of a competent
court of law is required to be taken in
this behalf. Essentially, the dispute
between the parties is a civil dispute. ...."

28. Interesting in the instant case,
the contesting parties have filed their
civil cases bearing Original Suit No.
1553 of 2015 (Munni Devi v. Mamta
Gupta) with a prayer for mandatory
injunction against the defendant (Ms.
Mamta Gupta) to get the premises in
dispute vacated, whereas Ms. Mamta
Gupta (applicant no. 2)/plaintiff filed
Civil Suit No. 2077 of 2015 in the court
of the Civil Judge (Senior Division),
Kanpur
Nagar
with
a
prayer
for
permanent
injunction
against
the
defendant
not
of
dispossess
her
possession over the plot in dispute
wbereby vide order dated 06.10.2015, the
court
of
the
Civil
Judge
(Senior
Division),
Kanpur
Nagar
granted
temporary injunction in favour of Ms.
Mamta
Gupta
(applicant
no.
2).
Aforesaid both the cases are still pending
for adjudication in one and the same
court I..e. Civil Judge (Senior Division),
Kanpur Nagar and it is borne out from
the record that written statements have
been filed in both the cases and the court
is seized with mater. Record also reveals
that in both the proceedings, two
different stories have been woven. In
paragraph 2 of the Original Suit No. 2077
of 2015, it is averred that the total
amount agreed upon between the parties
is 35 Lakhs, out of which Rs. 25.00
Lakhs have been paid to Mrs. Munni
Devi . At this juncture, this Court in
exercise of power envisaged under
section 482 Cr.P.C. reserve its position to
opine upon the joint notarized affidavit
signed by Mrs. Munni Devi as well as
Ms. Mamta Guta, dated 27.10.2010
668 INDIAN LAW REPORTS ALLAHABAD SERIES
(annexure 3 to the petition), veracity and
genuineness of which has been seriously
disputed by opposite party no. 2- Kaptan
Singh in his counter affidavit.

29. Hon'ble the Apex Court in its
recent decisions passed in the cases of
Md. Allauddin Khan v. State of Bihar
(Criminal Appeal No. 675 of 2019) as
well
in
CBI
v. Arvind
Khanna
(Criminal Appeal No. 1420 of 2017) on
15th April of 2019 and 17th October
2019 respectively. In the case of Md.
Allauddin Khan v. State of Bihar
(Supra) it has opined "In overview, the
High Court has no jurisdiction to
appreciate
the
evidence
of
the
proceeding under section 482 Cr.P.C. ,
because whether there are contradictions
or /and inconsistencies in the statements
of witnesses, is essentially an issue
relating to appreciation of evidence and
same can be gone into by Judicial
Magistrate during trial when the entire
evidence is adduced by the parties and
this is not the stage where the evidence
could be appreciated."

30. Similarly in the case of CBI v.
Arvind Khanna (Supra), paragraph 22
states that "the correctness of the
defence,
where
such
amount
was
received by the respondent by his father
or not, is a serious factual dispute. It is
not admitted position as recorded by the
High Court. The correctness of the
defence of the respondent is to be gone
into, only after appreciating the evidence
during the trial. "

31. In the instant case, there are two
documents, annexed by the applicants.
Though
both
the
documents
were
executed on 27.10.2010 and signed by
the contesting parties, this Court is at
serious loss to spell out the genuineness
of the aforesaid documents either way.
Moreover, the civil courts are seized with
the mater and they are required to
adjudicate the pivotal question by taking
evidence at their discussion on the point.

32. This Court in exercise of power
envisaged under section 482 Cr.P.C., on
the aforementioned guidelines provided
by the Hon'ble Apex Court in the referred
cases, is not in a position to appreciate
the contention raised by Ms. Sufia Safa
whereas she claims that document
annexure 3 (joint notoriazed), dated
27.10.2010 is forged one, at present
juncture.

33. Hence, thrashing the entire
material on record, where the parties have
entered into a contract according to their own
wisdom and advanced certain amount of
money, thereafter the applicants are in
possession
of
the
disputed
property.
Visualizing facts and evidence in the matter,
the court of Civil Judge (Senior Division),
Kanpur Nagar passed interim injunction in
favour of Ms. Mamta Gupta (applicant no. 2)
in Original Suit No. 2077 of 2015 (Mamta
Gupta v. Munni Devi) and at present the
competent civil courts are seized with the
matter, therefore, engaging a stranger viz;
Kaptan
Singh
and
initiating
criminal
prosecution under his aegis is nothing but
twisting of arms of the applicants. Needless
to mention here that for the sake of argument
if it is assumed that all the covenants of the
agreement to sell have not been complied
with even then the fact remains that five post
dated cheques were handed over to Ms.
Munni Devi and the applicants are enjoying
the state over the disputed property.

34. The 7th sub clause of Bhajan
Lal's case (supra) establishes that where
8 All. Sabir & Ors. Vs. State of U.P. & Anr.
669
criminal
proceedings
attended
with
malafies and/or where the proceedings are
maliciously initiated with an ulterior motive
for wreaking vengeance with a view to spite
him due to private and personal grudge. It is
astpnishing as to when the grievance of the
rival parties has properly been addressed by
the court concerned and written statements of
the respective defendants have already been
submitted then no justifiable reason arises to
array the stranger named Kaptan Singh as
opposite party no. 2, the self-proclaimed
Power of Attorney Holder without any
requisite and relevant document to initiate
criminal case against the appicants by
knitting an imaginary story. In the FIR, he
alleges that on the date of incident, he along
with Ram Pratap Singh visited the disputed
site wherein Mamta Devi (applicant no. 2)
and her husband hurled filthy abuses upon
the and assaulted with the lathi and danda,
causing serious injuries over the person of
Ram Pratap but astoundingly there no
medical injury report to corroborate the
allegation, thus, this Court can safely reach to
the conclusion that the additions are simply
embellishment just switch over the episode
into a serious and grimmer drama.

35. Relying upon the aforesaid
discussions, made herein above, this
Court finds that there is no case against
the applicants under section 406 IPC and
rest of the allegations are tangent to the
main
allegation
without
any
corroborating evidence.

36. Hence in the light of a critical,
analytical and elaborated confab on the
issue, the criminal prosecution initiated
against the applicants under sections 147,
148, 149, 406, 329 and 386 IPC have no
bones to stand with, therefore, quashed.
However, court of Civil Judge (Senior
Division), Kanpur Nagar, adjudicating
the matter, is expected to speed up the
trials of Original Suit No. 1553 of 2015
(Ms Mamta Devi v. Munni Devi) and
Original Suit No. 2077 of 2015 (Mamta
Devi v. Munni Devi) and dispose of the
same as expeditiously as possible,
keeping in view that pleadings have been
exchanged between the parties.

37. The entire proceedings of
Criminal Case No. 3302 of 2015 (State v.
Radhey Shyam Gupta and others) under
sections 147, 148, 149, 406, 329 and 386
IPC, P.S. Barra, District Kanpur Nagar
pending in the court of I-Additional
Chief Metropolitan Magistrate, Kanpur
Nagar is, hereby, quashed and the present
application filed under Section 482
Cr.P.C., is allowed.

38. Certified copy of the judgement
be transmitted to the court concerned at
the earliest.
----------
(2020)08ILR A669
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.06.2020

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

Application U/S 482 No. 11259 of 2020

Sabir & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Hans Nath Pandey

Counsel for the Opposite Parties:
A.G.A., Sri R.C. Upadhyay

A. Criminal Law - Code of Criminal Procedure,
1973 - Section 482 & Indian Penal