# Rajat Saxena & Anr v. State of U.P. & Anr

- **Citation:** (2026) 4 ILRA 882
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-03
- **Case number:** Application U/S 482. No. 4460 of 2022
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajat-saxena-anr-v-state-of-u-p-anr-54726
- **Pages:** 12

## Text

882 INDIAN LAW REPORTS ALLAHABAD SERIES
law as laid down by Hon'ble Apex Court in the matter of Rajnesh Vs. Neha and another reported
in 2021 (2) SCC 324.
----------
(2026) 4 ILRA 882
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 03.04.2026

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482. No. 4460 of 2022
Alongwith
Application U/S 482. No. 3270 of 2022

Rajat Saxena & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Issue for consideration
A criminal litigation arising out of family-cum-property dispute. The applicants approached the High court u/s
482 CrPC seeking to quash a trial court's summoning order.

Headnotes
A. Indian Penal Code,1860-Section 420-Criminal Procedure Code,1973-Section 482-Quashing of
criminal proceedings-Cheating -essential ingredients-Absence of fraudulent or dishonest
inducement at the inception of the transaction-Offence not made out-Commercial and civil
disputes cloaked with a criminal texture-Mere repayment of loan installments or outstanding
bank dues by a third party (father) does not alter or divest the legal status of the registered
property owner or mortgagor-Bank Manager accepting outstanding dues to secure bank interest
and returning title deeds to the true mortgagor does not commit any criminal offence or
conspiracy-Summoning order quashed.(Para 31 to 33)
Held
The Court held that a civil dispute over property partition cannot be given a criminal cloak to exert undue
pressure. It ruled that a third party's voluntary repayment of a bank loan does not alter or divest the legal
ownership rights of the true mortgagor. Furthermore, a bank manager commits no criminal offence by
accepting dues and returning title deeds to the registered owner, making the Magistrate's mechanical
summoning order a clear abuse of process. (E-6)

Case law Cited
Mitesh Kumar J.Sha Vs State of Karnataka, (2022) 14 SCC 572, Dinesh Gupta Vs State of U.P. 2024 SCC
Online SC 34 , Indian Oil Corpn Vs NEPC India Ltd. [(2006) 6 SCC 736], G.Sagar Suri Vs State of U.P. [2000)
2,Randheer Singh Vs State of U.P. [(2021) 14 SCC 626], Dinesh Gupta Vs State of U.P. : (2024) 11 SCC 758,
Mala Choudhary Vs State of Telangana , 2025 SCC OnLine SC 1474, Rikhab Birani Vs State of U.P. 2025 SCC
OnLine SC 823-referred to.

List of Acts
Indian Penal Code, 1860, Criminal Procedure Code, 1973.

List of Keywords
4 All. Rajat Saxena & Anr. Vs. State of U.P. & Anr.
883
Cheating, summoning order, Civil dispute cloaked as criminal, Fraudulent intention/Dishonest inducement,
Mortgagor, Right of redemption, Loan repayment by third party, SARFAESI Act, DRT, Private Treaty, Release
of Title deeds, Co-ownership and Partition, Mechanical application of mind.

Case Arising from
CRIMINAL JURISICTION: APPLICATION U/S 482 No.- 4460 OF 2022
Rajat Saxena and Another Vs. State of U.P. Thru. Addl. Chief Secy. Prin. Secy. Lko. And Another
From the judgment and order dated 03.04.2026 of the High Court of judicature at Allahabad.

Appearances for Parties
Advs. for Applicant(s)
Vivek Pandey, Akshat Sinha, Chandra Shekhar Sinha
Gaurav Verma, Mohit Sharma, Pooja Mishra
Advs. for Opposite Party(s)
G.A., Pramendra Kumar Singh

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard ShriChandra Shekhar Sinha, the learned counsel for the applicants in Application u/S
482 No.4460 of 2022, Shri Nadeem Murtaza, the learned counsel for the applicant in Application
U/s 482 No.3270 of 2022, Shri G.D. Bhatt, the learned AGA-I for the State-opposite party No.1 in
both the applications and Shri Abhishek Khare, the learned counsel for the opposite party No.2 in
both the applications.

2. Both the present applications under Section 482 Cr.P.C. have been filed challenging the
validity of an order dated 08.04.2022 passed by the learned Additional Chief Judicial Magistrate-V,
Court No.29, Lucknow in Misc. Case No.3649 of 2021, summoning the applicants to face trial for
the offence under Section 420 I.P.C.

3. The opposite party no. 2 Rakeshwar Dayal Saxena, had filed an application under
Section 156(3) Cr.P.C. against- (i) Rajat Saxena (applicant No.1 inApplication u/S 482 No.4460
of 2022), (ii) Anil Saxena(applicant No.2 inApplication u/S 482 No.4460 of 2022) and (iii)
Anshul Srivastava, the then Manager (Senior) HDFC Ltd. (the applicant inApplication u/S 482
No.3270 of 2022) stating that Rajat Saxena is son of Rakeshwar Dayal Saxena and Anil Saxena is
father-in-law of Rajat Saxena. There was a house purchased in the name of Rajat Saxena and her
mother Raj Laxmi Saxena. The owners of the house Rajat Saxena and Raj Laxmi Saxena had taken
a housing loan of Rs.17 lakhs from HDFC Ltd., Ashok Marg, Lucknow and thereafter they had
taken a personal loan of Rs.12 lakhs. The house in question was mortgaged as security for
repayment of the aforesaid loans. Smt. Raj Laxmi Saxena died on 04.11.2013. Thereafter, the
complainant- Rakeshwar Dayal Saxena married another lady who is living with him as his wife.
Rajat Saxena works abroad. From the averments made in the application, it appears that the relation
between Rajat Saxena and Rakeshwar Dayal Saxena have turned sour.

4. The opposite party no. 2 claims that since June 2014, he has continuously paid the
installments towards repayment of the loan taken by his wife and son. Thereafter, under a
conspiracy between all the accused persons, the Bank Manager Anshul Srivastava declined to
receive the installments toward repayment of the loansand he obtained a writing from the
884 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant that the complainant would not pay the installments towards repayment of the loan
taken by his wife and son. Thereafter, the Bank declared the loans as non-performing assets and
published a notice for auction of the house. The complainant filed S.A. No.319 of 2018 before the
Debts Recovery Tribunal, Lucknow and he expressed willingness to deposit the entire dues of the
Bank amounting to Rs.45,95,000/-, provided the Bank executes a sale deed in his favour under a
private treaty.

5. It is further stated in the application under Section 156 (3) Cr.P.C. that in compliance of
an order dated 18.12.2018 passed by the Debts Recovery Tribunal, Lucknow the Bank Manager
Anshul Srivastava received Rs.45,95,000/- from the complainant and gave a No Dues Certificate
on 29.01.2019 but under a conspiracy, he handed over the title deed of the house to Rajat Saxena.
The complainant has stated that he has opened the locks of the house on 03.12.2019 and has started
residing in it. He has stated that the accused persons have cheated him and are trying to usurp the
house.

6. On 08.04.2022, the trial Court passed the impugned order summoning the applicants to
face the trial.

7. The opposite party No.2 has filed a counter affidavit opposing the applications under
Section 482 Cr.P.C. and the applicants have filed a rejoinder affidavit.

8. On 18.12.2018, the DRT, Lucknow had passed the following order in S.A. No.391 of
2018: -

 "Case called out.

 Ld. Counsel for both the parties are present.

 Ld. Counsel for the applicant submits that in pursuance of order dated 20.9.2018 passed
by this Tribunal, the applicant has deposited a sum of Rs 10.00 lacs. He is also willing to deposit
the remaining dues of the respondent-F.I.

 Ld. Counsel for respondent -F.I. submits that dues against the loan account are around
Rs. 36.00 lacs. In case the applicant is willing to deposit the amount, he may deposit the same.

 Ld. Counsel for applicant submits that he will deposit the amount provided the title
deed of secured asset is returned to him.

 Heard learned counsels for both the parties.

 Applicant is directed to approach the respondent- F.I. with the above proposal and the
amount quoted by the learned counsel for the respondent- F.I. The proposal to be submitted by the
applicant will be considered by the respondent-F.I. u/r 5(d) of the Security Interest (Enforcement)
Rules, 2002.
4 All. Rajat Saxena & Anr. Vs. State of U.P. & Anr.
885
 Fixed 18.1.2018 for further order."

9. Thereafter, on 21.12.2018, the complainant gave a letter to the bank stating that he was
willing to liquidate the loan accounts and he requested that the sale deed of the house No.5/71,
Jankipuram Extension, Lucknow be released in his favour.

10. On 24.12.2012, the Bank Manager wrote a letter to the complainant stating that as
directed in the order passed by the DRT, the bank will accept the payment from the complainant
and will return the original title deed to him subject to closure of the loan account.

11. On 29.01.2019, the Bank gave a No Dues Certificate to the complainant and asked him
to file the requisite application before the DRT for further orders to enable the bank to execute
necessary documents of transfer in favour of the complainant. On 17.06.2019, the DRT passed the
following order: -

 "The file has been put up for passing order on the application dt. 1.2.2019 moved by the
applicant. The applicant has prayed in this application that respondent bank be directed to transfer
the property in favour of applicant through private treaty as per Rule 8(8) of the Security Interest
(Enforcement) Rules, 2002.

 The applicant has stated that he has paid the entire outstanding dues of the respondent
FI. The respondent Financial Institution after accepting the entire outstanding dues from the
respondent bank had issued a letter to the applicant dt. 29.1.2019. The respondent Financial
Institution has directed the applicant to move an application before the Tribunal to hand over the
possession of the property to him and to transfer the property in his favour.

 In reply to the application dt. 01.2.2019 the respondent no.2 has filed objection.
According to the respondent no.2 the property in question has not been sold in auction. The
Loan account has been closed and nothing is due in the said loan account. The respondent no.2
has brought out that Smt. Raj Laxmi Saxena deceased was co-owner of the said property
through registered sale deed dt. 16.10.2017. She died on 04.11.2013 leaving behind her applicant
K.D Saxena (Husband) respondent no.2(son) and two daughters namely Smt. Roopali Srivastava
and Smt. Roopali Srivastava as her legal heirs and successors. All the legal heirs have got equal
share in the property left by the deceased. According to the respondent no. 2 the Securitization
Application is no.2 maintainable. Preliminary objections have been filed which are yet to be
decided. The S.A. as well as application dt. 01.2.2019 of the applicant is malafide, illegal,
misconceived of and beyond the provisions of SARFEASI Act, 2002.

 Heard the Ld. Counsel for the applicant and respondent ho.2 and. perused the record.

 It is observed from Securitization Application that in paragraph 6D of the S.A. the same
prayer has been made by the applicant. Hence, the issue involved in application dt. 08.2.2019 can
be considered while disposing of the Securitization Application.

 Fixed 30.7.2019 for filing objection in reply to the S.A. and final arguments.
886 INDIAN LAW REPORTS ALLAHABAD SERIES
 Application dt. 01.2.2019 will be disposed of along with the S.A."

12. The S.A. was disposed off finally by means of an order dated 28.10.2019, wherein it is
recorded that: -

 "The cause of action for presentation of Securitization Application of applicant was the
measure taken by Respondent NO. 1 Financial Institution u/s 13(4) of SARFAESI Act, 2002. The
Respondent No. q1 Financial Institution is not proceeding under the provisions of SARFAESI Act
hence there is no cause of action now to SARFAESI Act hence there is no cause of action now to
proceed with the matter. The order issuing notice relating to share of applicant and Respondent
NO. 2 and other family members is pending before the Civil Court. This Tribunal is not competent
to deal with the said issue of partition or right of properties. Since there is no cause of action, the
Securitization Application deserve to be disposed off."

13. On 22.12.2020, the opposite party no. 2 has filed the application under Section 156 (3)
Cr.P.C. The learned Additional Chief Judicial Magistrate Fifth, Court No. 29, Lucknow passed an
order dated 16.01.2021 registering the application under Section 156 (3) Cr.P.C. as a complaint and
on 08.04.2022, the impugned order was passed summoning the applicant to face the trial.

14. Challenging validity of the summoning order, the learned counsel for the applicants
have submitted that Rajat Saxena and his mother Raj Laxmi Saxena were the owners of the house
in question, they had borrowed the money from the Bank and they had mortgaged the house. The
right of redemption of mortgage vests in the mortgagor. After death of Raj Laxmi Saxena, Rajat
Saxena has remained the sole mortgagor. The applicants in Application no. 4460 of 2022 have
denied the contention of the complainant that he had deposited the money and they have submitted
that Rajat Saxena used to transfer money to his father Rakeshwar Dayal Saxena from being
deposited in the bank and it was from the aforesaid money that the Rakeshwar Dayal Saxena used
to deposit the installments but this fact is irrelevant at this stage. What is relevant is that mere
deposit of installments toward repayment of loan amount would not alter the legal status of the
mortgagor as well as the registered owner of the property.

15. Shri Nadeem Murtuza has submitted that the bank Manager- applicant inApplication
u/S 482 No.3270 of 2022had not raised any demand from the complainant. It was the
complainant himself who approached the bank for repayment of the dues of the bank. Being an
officer of bank, the officer is duty bound to take all such actions as would be in the interest of the
bank for recovery of the loan. By accepting money from the complainant in discharge of his official
duties, the Bank Manager has not committed any offence.

16. The learned Counsel for the applicants have submitted that the facts of the case noted
above do not even prima facie make out commission of any offence and filing of the complainant is
an abuse of the process of law to put undue pressure upon the applicants in the ongoing civil
dispute between the complainant and his son Rajat Saxena. They have placed reliance upon the
judgment in the cases of Mitesh Kumar J. Sha v. State of Karnataka, (2022) 14 SCC 572,
Dinesh Gupta v. State of Uttar Pradesh 2024 SCC Online SC 34, Mala Choudhary v. State of
4 All. Rajat Saxena & Anr. Vs. State of U.P. & Anr.
887
Telangana, 2025 SCC OnLine SC 1474 and Rikhab Birani v. State of U.P., 2025 SCC OnLine
SC 823.

17. Sri. Abhishek Khare, the learned counsel for the complainant has submitted that nonexecution of transfer deed in favour of the complainant amounts to cheating.

18. In Mitesh Kumar J. Sha v. State of Karnataka, (2022) 14 SCC 572, the Hon'ble
Supreme Court referred to some precedents in the following paragraphs: -

 38.Having considered the relevant arguments of the parties and decisions of this Court
we are of the considered view that existence of dishonest or fraudulent intention has not been made
out against the appellants. Though the instant dispute certainly involves determination of issues
which are of civil nature, pursuant to which Respondent 2 has even instituted multiple civil suits,
one can by no means stretch the dispute to an extent, so as to impart it a criminal colour. As has
been rightly emphasised upon by this Court, by way of an observation rendered inIndian Oil
Corpn.v.NEPC India Ltd.[(2006) 6 SCC 736], as under:

 "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."

 39.It was also observed:

 "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. 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 though
criminal prosecution should be deprecated and discouraged."

 40.On an earlier occasion, inG. Sagar Suriv.State of U.P.[(2000) 2 SCC 636],
this Court has also observed:

 "8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In
exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen
if a matter, which is essentially of 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 of 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."
888 INDIAN LAW REPORTS ALLAHABAD SERIES
 * *

 43.Recently, this Court inRandheer Singhv.State of U.P.[(2021) 14 SCC 626],
has again reiterated the long standing principle that criminal proceedings must not be used as
instruments of harassment. The Court observed as under:

 "33. There can be no doubt that jurisdiction under Section 482CrPC should be used
sparingly for the purpose of preventing abuse of the process of any court or otherwise to secure the
ends of justice. Whether a complaint discloses criminal offence or not depends on the nature of the
allegation and whether the essential ingredients of a criminal offence are present or not has to be
judged by the High Court. There can be no doubt that a complaint disclosing civil transactions may
also have a criminal texture. The High Court has, however, to see whether the dispute of a civil
nature has been given colour of criminal offence. In such a situation, the High Court should not
hesitate to quash the criminal proceedings as held by this Court inParamjeet Batra[Paramjeet
Batrav.State of Uttarakhand, (2013) 11 SCC 673 : (2012) 4 SCC (Cri) 76] extracted above."

 44.Moreover, this Court has at innumerable instances expressed its disapproval for
imparting criminal colour to a civil dispute, made merely to take advantage of a relatively quick
relief granted in a criminal case in contrast to a civil dispute. Such an exercise is nothing but an
abuse of the process of law which must be discouraged in its entirety."

19. In Dinesh Gupta v. State of Uttar Pradesh: (2024) 11 SCC 758, the issue involved
was stated thus: -

 "2. The core issue of the dispute, which involves financial transactions and agreements,
clearly places it in the realm of civil and commercial law. Yet, the respondent chose to pursue
criminal charges in a quest to abuse the criminal justice system with a motive to seek personal
vengeance rather than seeking true justice. This unnecessary turning of a civil matter into a
criminal case not only overburdens the criminal justice system but also violates the principles of
fairness and right conduct in legal matters. The apparent misuse of criminal proceedings in this
case not only damages trust in our legal system but also sets a harmful precedent if not
addressed."

(Emphasis added)

20. The Hon'ble Supreme Court found that the FIR in question, if proceeded further, would
result in absolute abuse of process of court. It was a clear case of malicious prosecution. Hence, the
same was quashed. Before parting with the case, the Hon'ble Supreme Court observed that a
criminal complaint was filed and FIR was registered against the appellants despite the commercial
nature of dispute. Such ill intended acts of abuse of power and of legal machinery seriously affect
the public trust in judicial functioning. The Honble Supreme Court imposed costs of Rs 25 lakhs
on the respondent.

21. In Mala Choudhary v. State of Telangana, 2025 SCC OnLine SC 1474, was a simple
dispute involving non execution of a registered sale deed in terms of a so called oral agreement
4 All. Rajat Saxena & Anr. Vs. State of U.P. & Anr.
889
between the complainant and the appellants which was given a criminal color by the complainant.
The complainant misused the process of police investigation so as to entangle the accused
appellants in a false and frivolous prosecution for the offences punishable under Sections 406 and
420 of the Penal Code, 1860. The Honble Supreme Court noted the drastic variance in terms of
the consideration of the plot in question in the versions of the complainant in the FIR and in the
plaint filed in the civil suit filed by him much after lodging the FIR. The Honble Supreme Court
quashed the FIR and imposed Rs.10,00,000/- costs on the complainant.

22. Rikhab Birani v. State of U.P., 2025 SCC OnLine SC 823 was yet another case where
there was a dispute between the parties regarding non payment of sale consideration of a property
in pursuance of an oral agreement. The complainant had filed applications under Section 156(3)
Cr.P.C. twice, which was dismissed both the times holding that the dispute was of a civil nature and
no criminal offence was made out against the appellants. The complainant then directly approached
the Police Station and got an FIR registered against the appellants for the offences punishable under
Sections 420, 406, 354, 504 and 506 of the Penal Code, 1860, a charge-sheet was filed and the
appellants were summoned to face trial. A petition under Section 482 of the Cr.P.C. filed by the
appellants for quashing of the criminal proceedings against them was dismissed by the High Court.
The Honble Supreme Court held that:

 "15.InLalit Chaturvediv.State of Uttar Pradesh 2024 SCC OnLine SC 171, this
Court quoted an earlier decision inMohammed Ibrahimv.State of Bihar (2009) 8 SCC 751,
wherein, referring to Section420of theIPC, it was observed that the offence under the said
Section requires the following ingredients to be satisfied:

 "18. Let us now examine whether the ingredients of an offence of cheating are made out.
The essential ingredients of the offence of cheating are as follows:

 (i) deception of a person either by making a false or misleading representation or by
dishonest concealment or by any other act or omission;

 (ii) fraudulent or dishonest inducement of that person to either deliver any property or to
consent to the retention thereof by any person or to intentionally induce that person so deceived to
do or omit to do anything which he would not do or omit if he were not so deceived; and

 (iii) such act or omission causing or is likely to cause damage or harm to that person in
body, mind, reputation or property."

16.Reference was also made to the decision inV.Y. Josev.State of Gujarat (2009) 3 SCC
78and it was observed:

 "7. Similar elucidation by this Court in V.Y. Josev.State of Gujarat, explicitly
states that a contractual dispute or breach of contractper seshould not lead to initiation of a
criminal proceeding. The ingredient of cheating, as defined under Section415of
theIPC, is existence of a fraudulent or dishonest intention of making initial promise or
890 INDIAN LAW REPORTS ALLAHABAD SERIES
representation thereof, from the very beginning of the formation of contract. Further, in the
absence of the averments made in the complaint petition wherefrom the ingredients of the
offence can be found out, the High Court should not hesitate to exercise its jurisdiction under
Section482of theCr.P.C.Section482of the Cr.P.C. saves the inherent power of the
High Court, as it serves a salutary purposeviz. a person should not undergo harassment of
litigation for a number of years, when no criminal offence is made out. It is one thing to say that
a case has been made out for trial and criminal proceedings should not be quashed, but another
thing to say that a person must undergo a criminal trial despite the fact that no offence has been
made out in the complaint. This Court inV.Y. Jose(supra) placed reliance on several earlier
decisions in Hira Lal Hari Lal Bhagwativ.CBI, Indian Oil Corporationv.NEPC India
Ltd., Vir Prakash Sharmav.Anil Kumar Agarwal and All Cargo Movers (I) (P)
Ltd.v.Dhanesh Badarmal Jain.

 * * *

 18.InKuntiv.State of Uttar Pradesh (2023) 6 SCC 109, this Court referred
toSarabjit Kaurv.State of Punjab (2023) 5 SCC 360wherein it was observed that a breach
of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest
intention is shown right at the beginning of the transaction. Merely on the allegation of failure
to keep a promise will not be enough to initiate criminal proceedings. Thus, the dishonest
intention on the part of the party who is alleged to have committed the offence of cheating
should be established at the time of entering into the transaction with the complainant, otherwise
the offence of cheating is not established or made out.

 19.It is the duty and obligation of the court to exercise a great deal of caution in issuing
process, particularly when the matter is essentially of civil nature [G. Sagar Suri v. State of U.P.,
(2000) 2 SCC 636]. The prevalent impression that civil remedies, being time-consuming, do not
adequately protect the interests of creditors or lenders should be discouraged and rejected as
criminal procedure cannot be used to apply pressure [Vijay Kumar Ghaiv.State of West
Bengal,(2022) 7 SCC 124].Failure to do so results in the breakdown of the rule of law and
amounts to misuse and abuse of the legal process.

 20.In yet another case, again arising from criminal proceedings initiated in the State of
Uttar Pradesh [Deepak Gabav.State of Uttar Pradesh,(2023) 3 SCC 423] this Court was
constrained to note recurring cases being encountered wherein parties repeatedly attempted to
invoke the jurisdiction of criminal courts by filing vexatious complaints, camouflaging allegations
that areex facieoutrageous or are pure civil claims. These attempts must not be entertained and
should be dismissed at the threshold. Reference was made to a judgment of this Court inThermax
Limitedv.K.M. Johny (2011) 13 SCC 412, which held that courts should be watchful of the
difference between civil and criminal wrongs, though there can be situations where the allegation
may constitute both civil and criminal wrongs. Further, there has to be a conscious application of
mind on these aspects by the Magistrate, as a summoning order has grave consequences of setting
criminal proceedings in motion. Though the Magistrate is not required to record detailed reasons,
there should be adequate evidence on record to set criminal proceedings into motion. The
Magistrate should carefully scrutinize the evidence on record and may even put questions to the
4 All. Rajat Saxena & Anr. Vs. State of U.P. & Anr.
891
complainant/investigating officer etc. to elicit answers to find out the truth about the allegations.
The summoning order has to be passed when the complaint or chargesheet discloses an offence and
when there is material that supports and constitutes essential ingredients of the offence. The
summoning order should not be passed lightly or as a matter of course.

 21.Lastly, we would refer to another detailed judgment of this Court inSharif
Ahmedv.State of Uttar Pradesh 2024 SCC OnLine SC 726, which draws out the ingredients
required
to
establish
an
offence
under
Sections406,415,420,503and506of
theIPCin the following terms:

 "37. The chargesheet states that the offence under Section 420 is not made out. The
offence of cheating under Section415of theIPCrequires dishonest inducement, delivering
of a property as a result of the inducement, and damage or harm to the person so induced. The
offence of cheating is established when the dishonest intention exists at the time when the
contract or agreement is entered, for the essential ingredient of the offence of cheating consists
of fraudulent or dishonest inducement of a person by deceiving him to deliver any property, to do
or omit to do anything which he would not do or omit if he had not been deceived. As per the
investigating officer, no fraudulent and dishonest inducement is made out or established at the time
when the agreement was entered.

(Emphasis added)

23. When we examine the facts of the present case in light of the law laid down by the
Hon'ble Supreme Court in the above mentioned cases, it appears that the house in question had
been purchased in the name of Rajat Saxena and her mother Raj Laxmi Saxena and the
complainant was not its co-owner. The owners of the house Rajat Saxena and Raj Laxmi Saxena
had mortgaged the house with the Bank. Smt. Raj Laxmi Saxena died on 04.11.2013. The
complainant claims that since June 2014, he was paying the installments towards repayment of the
loan taken by his wife and son, but it would not make him the owner of the house. A default was
committed in repayment of the loans and the Bank had published a notice for auction of the house.
The complainant filed S.A. No.319 of 2018 before the DRT and expressed willingness to deposit
the dues of the Bank, provided the Bank executes a sale deed in his favour under a private
treaty.

24. A treaty is a written agreement between sovereign states or other subjects of
international law that is governed by international law. There can be no treaty between a Bank and
an individual willing to repay the loan taken by his son and wife. The complainant has not
produced any written agreement executed between himself and the bank. The cheating alleged in
the complaint is that the Bank Manager Anshul Srivastava received the dues from the complainant
and gave a No Dues Certificate but he handed over the title deed of the house to Rajat Saxena
under a conspiracy. The complainant has stated that he has opened the locks of the house on
03.12.2019 and has started residing in it. He has stated that the accused persons have cheated him
and are trying to usurp the house.
892 INDIAN LAW REPORTS ALLAHABAD SERIES
25. The complainant had filed S.A. No. 391 of 2018 in DRT. It is recorded in the order dated
18.12.2018 passed by DRT that the complainant had voluntarily made an offer to deposit the Banks dues
provided Lucknow, provided the title deed of secured asset was returned to him. Thereafter, he gave a letter
dated 21.12.2018 the bank stating that he was willing to liquidate the loan accounts and he requested that the
sale deed of the house No.5/71, Jankipuram Extension, Lucknow be released in his favour. The Bank
Manager wrote a letter dated 24.12.2012 to the complainant stating that as directed in the order passed by the
DRT, the bank will accept the payment from the complainant and will return the original title deed to him
subject to closure of the loan account. On 29.01.2019, the Bank gave a No Dues Certificate to the
complainant and asked him to file the requisite application before the DRT for further orders to enable the
bank to execute necessary documents of transfer in favour of the complainant.

26. It is important to note that the entire communication till this stage was without involvement of
the mortgagor Rajat Saxena, but upon coming to know about the aforesaid facts, the mortgagor filed
objections before DRT. The DRT disposed off the S.A. finally by means of an order dated 28.10.2019,
which takes note of the contention of the mortgagor Rajat Saxena that the house was purchased in the name
of Rajat Saxena and his mother Smt. Raj Laxmi Saxena deceased through registered sale deed dt.
16.10.2017. Smt. Raj Laxmi Saxena died on 04.11.2013 leaving behind her husband (the complainant
Rekeshwar Dayal Saxena), a son Rajat Saxena and two daughters namely Smt. Roopali Srivastava and Smt.
Roopsi Srivastava as her legal heirs and successors. All the legal heirs have got equal share in the property
left by the deceased. Therefore, Rajat Saxena had become owner of 62.5% share in the house whereas the
complainant and his two daughters had 12.5% share each. The complainant had concealed the fact the he had
already filed Regular Suit No. 735 of 2016 in the Court of Civil Judge (Senior Division), Lucknow for
partition of the house. The mortgagor contended that he used to transfer money in the account of his father
every month and his father used to deposit the installments towards repayment of loan from that money and
he filed copies of account statements in support of this contention. The property cannot be transferred to one
of the co-owners through a private treaty.

27. DRT disposed off the S.A. by means of an order dated 28.10.2019, wherein it is recorded that: -

 "The cause of action for presentation of Securitization Application of applicant was the measure
taken by Respondent NO. 1 Financial Institution u/s 13(4) of SARFAESI Act, 2002. The Respondent No. 1
Financial Institution is not proceeding under the provisions of SARFAESI Act hence there is no cause of
action now to SARFAESI Act hence there is no cause of action now to proceed with the matter. The order
issuing notice relating to share of applicant and Respondent NO. 2 and other family members is pending
before the Civil Court. This Tribunal is not competent to deal with the said issue of partition or right of
properties. Since there is no cause of action, the Securitization Application deserve to be disposed off."

28. The aforesaid facts reveal that firstly the complainant claims to have made an offer to the Bank
to repay the dues, but the Bank Manager has not made any demand to the complainant. Secondly, although
the complainant had put a condition that the title deed of the house be handed over to him, the Bank Manager
had replied that the bank will accept the payment from the complainant and will return the original title deed
to him subject to closure of the loan, as directed in the order passed by the DRT. In the final order dated
28.10.2019, DRT stated that it has no jurisdiction to decide the claims to ownership of the property, and
thereafter the Bank did not hand over the title deed of the house to the complainant.
4 All. Smt. Shaheen Naz @ Shaheen Taj & Anr. Vs. State of U.P. & Anr.
893
29. The aforesaid facts do not even prima facie make out a case of cheating by the Bank Manager,
as he had not demanded any money from the complainant, he did not commit any illegality in accepting
repayment of the Banks dues from the complainant and he had not made any promise to transfer ownership
of the property to the complainant. Although he had initially promised to hand over title deed of the house to
the complainant, handing over title deeds of an immovable property does not amount to transferring
ownership of the property and even if the Bank had handed over the title deed of the house, the true owners
of the house would not have become divested of their ownership rights.

30. The complainant has not disclosed the true market value of the house and prima facie it appears
that the complainant himself had devised a mala fide design to grab the entire house and divest his son and
daughters of their share in it by making paying some money to the Bank. These facts do not at all make out a
case of cheating committed by the complainants son. There is no allegation of commission of any act by
the applicant no. 2 Anil Saxena and there was absolutely no ground to summon him to face the trial.

31. The ingredient of cheating, as defined under Section415of theIPC, is existence of a
fraudulent or dishonest intention of making initial promise or representation thereof, from the very beginning
of the formation of contract. Rajat Saxena and Anil Saxena had not made any promise to the complainant,
much less a promise made with a dishonest intention. The Bank Manager had not made any inducement to
the complainant, rather the complainant had himself approached the Bank manager for repayment of the
amount and the Bank manager did not commit any wrong by acceptig the dues of the Bank from the
complainant, who is the father of the borrower mortgagor.

32. It appears that the trial Court has passed the impugned order dated 08.04.2022
summoning the applicants, in a mechanical manner and without application of mind to the
aforesaid facts which are evident on the face of the record, which vitiates the impugned summoning
order.

33. In view of the foregoing discussion, both the present applications filed under Section
482 Cr.P.C. are allowed. The impugned summoning order dated 08.04.2022 passed by the learned
Additional Chief Judicial Magistrate-V, Court No.29, Lucknow in the Misc. Case No.3649 of 2021
is quashed and the complaint filed by the complainant is hereby dismissed.
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(2026) 4 ILRA 893
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.04.2026

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Application U/S 482. No. 4950 of 2022

Smt. Shaheen Naz @ Shaheen Taj & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties