# Rajeev Mohan Saxena & Ors v. State of U.P. & Anr

- **Citation:** (2021) 10 ILRA 350
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-13
- **Case number:** Application U/S 482 Cr.P.C. No. 9069 of 2021
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajeev-mohan-saxena-ors-v-state-of-u-p-anr-46327
- **Pages:** 6

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
10 All. Rajeev Mohan Saxena & Ors. Vs. State of U.P. & Anr.
351
power - The Negotiable instruments Act,
1981 - Section 138 - legal position for
quashing of the proceedings at the
initial stage - test to be applied by the
court is to whether uncontroverted
allegation
as
made
prima
facie
establishes the offence and the chances
of ultimate conviction is bleak and no
useful purpose is likely to be served by
allowing criminal proceedings to be
continue - quashing of the criminal
proceedings is an exception than a rule -
power of High Court is very wide but
should be exercised very cautiously to
do real and substantial justice for which
the court alone exists.(Para -11)

Compliance of order - applicants brought draft
in favour of opposite party no.2 - ready to
accept draft - not interested to pursue case filed
under Section 138 Negotiable Instrument Act -
proceedings may be quashed - parties have
entered into compromise - cheque amount has
been paid by way of bank draft - no useful
purpose would be served if the proceedings of
case go on further .

HELD:-In view of the statement/compromise
made by the applicants as well as opposite party
no.2 , the entire proceedings under Section 138
Negotiable Instrument Act pending in the court
of Additional Judicial Magistrate, is hereby
quashed. (Para - 13)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

## Text

350 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 468 for the reason that there was no
application by the prosecution explaining
the delay from the date of the alleged
occurrence till the date of filing the
complaint and registering the FIR.

19. The aforementioned authorities
in the case of Darshan Singh Saini and
Johnson Alexander, would go to show
that 'institution of prosecution' would
refer to the date of filing of the complaint
or registering of the FIR, and in a case
where the same is within the period of
limitation, proceedings cannot be held to
be barred by Section 468 merely for the
reason that the order of cognizance or
issuance of process is made on a
subsequent date.

20. The view taken in the judgments
in the case of Bharat Damodar Kale,
Japani Sahoo and Sarah Mathew that
for the purpose of computing the period
of limitation under Section 468 of the
Code the relevant date is the date of
'institution of prosecution' and not the
date on which the Magistrate takes
cognizance, is primarily for the reason
that so far as the complainant/informant
is concerned, as soon as he files a
complaint, he has done everything which
is required to be done by him and
thereafter he has no control over the
proceedings or the delay in taking
cognizance which may be for reasons
which are systemic or otherwise cannot
be a ground to non-suit a diligent
complainant. The aforesaid reason, would
also be applicable where the case is
instituted with the lodging of an FIR by
the informant/complainant diligently and
within the period of limitation. In this
situation also the complainant/informant
cannot be non-suited for any subsequent
delay in taking cognizance, issuing
process or any other action contemplated
under
law,
for
which
the
informant/complainant has no control.

21. The challenge therefore sought
to be raised to the criminal proceedings,
including the challenge to the chargesheet and summoning order, on the point
of limitation, by seeking to urge that the
proceedings
would
be
barred
by
limitation under Section 468 Cr.P.C. thus
cannot be accepted and is therefore
rejected.

22. At this stage, learned counsel for
the applicant states that he may be
permitted to address on other points in
support of the application, and to sustain
the challenge to the criminal proceedings.

23. As prayed, let the matter appear in
the additional cause list on 4th October,
2021.
----------
(2021)10ILR A350
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2021

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Application U/S 482 Cr.P.C. No. 9069 of 2021

Rajeev Mohan Saxena & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Raghubir Singh

Counsel for the Opposite Parties:
A.G.A., Sri Ashutosh Pandey

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
10 All. Rajeev Mohan Saxena & Ors. Vs. State of U.P. & Anr.
351
power - The Negotiable instruments Act,
1981 - Section 138 - legal position for
quashing of the proceedings at the
initial stage - test to be applied by the
court is to whether uncontroverted
allegation
as
made
prima
facie
establishes the offence and the chances
of ultimate conviction is bleak and no
useful purpose is likely to be served by
allowing criminal proceedings to be
continue - quashing of the criminal
proceedings is an exception than a rule -
power of High Court is very wide but
should be exercised very cautiously to
do real and substantial justice for which
the court alone exists.(Para -11)

Compliance of order - applicants brought draft
in favour of opposite party no.2 - ready to
accept draft - not interested to pursue case filed
under Section 138 Negotiable Instrument Act -
proceedings may be quashed - parties have
entered into compromise - cheque amount has
been paid by way of bank draft - no useful
purpose would be served if the proceedings of
case go on further .

HELD:-In view of the statement/compromise
made by the applicants as well as opposite party
no.2 , the entire proceedings under Section 138
Negotiable Instrument Act pending in the court
of Additional Judicial Magistrate, is hereby
quashed. (Para - 13)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:-

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

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

3. Dimpey Gujral & ors. Vs Union Territory
Through Administrator, 2013 (11) SCC 697

4. Narendra Singh & ors. Vs St. of Pun. & Ors.,
2014 (6) SCC 466

5. Yogendra Yadav & ors. Vs St. of Jhark.,
2014 (9) SCC 653

6. Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai
Karmur & ors. Vs St. of Gujarat & Anr,(2017) 9
SCC 641

7. R.P. Kapoor Vs St. of Pun., AIR 1960 S.C.
866

8. St. of Har. Vs Bhajanlal, 1992 SCC (Crl.)426

9. St. of Bihar Vs P.P. Sharma, 1992 SCC
(Crl.)192

10. Zandu Pharmaceutical Works Ltd. Vs Mohd.
Saraful Haq & anr., (Para-10) 2005 SCC (Cri.)
283

11. S.W. Palankattkar & ors. Vs St. of Bihar,
2002 (44) ACC 168

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Raghubir Singh, learned
counsel for the applicants, Sri Ashutosh
Pandey, learned counsel for the opposite
party no. 2 as well as learned A.G.A. for
the State and perused the record.

2. This application u/s 482 Cr.P.C.
has been filed with the prayer to quash the
entire proceedings in Complaint Case
No.11639 of 2019 (Smt. Sweta Agrawal vs
J.R. Associate and others), under Section
138
Negotiable
Instrument
Act
P.S.
Shahganj District Agra pending in the court
of Additional Judicial Magistrate, Court
No.3, Agra.

3. This Court vide order dated
3.9.2021 passed the following order:-

"Shri Raghubir Singh, learned
counsel for the applicants submits that his
client is ready to pay the cheque amount of
Rs.1.5 lacs to opposite party no.2 by way of
bank draft before this Court. Shri Ashutosh
Pandey, learned counsel for opposite party
no.2 has no objection to accept the cheque
352 INDIAN LAW REPORTS ALLAHABAD SERIES
amount of Rs.1,50,000/- by way of bank
draft before this Court.

Learned
AGA
has
also
no
objection if the parties enter into a
settlement and matter is finally decided by
this Court.

As jointly prayed by the learned
counsel for the parties, put up this case as
fresh on 9.9.2021 to enable the learned
counsel for the applicants to bring a draft
of Rs.1.50 lacs before this Court so that the
same may be handed over to the counsel
for opposite party no.2."

4. In compliance of the order dated
3.9.2021 passed by this Court, Sri Raghubir
Singh learned counsel for the applicants
has brought a draft of Rs.1,50,000/- issued
on 8.9.2021 in favour of Sweta Agarwal
bearing No. 010987 today before this
Court.

5. Sri Ashutosh Pandey, learned
counsel for opposite party no.2 has
submitted that opposite party no.2 Smt.
Sweta Agrawal is ready to accept the draft
of Rs.1,50,000/- which is also the cheque
amount and now she is not interested to
pursue the case i.e. Complaint Case
No.11639 of 2019 filed under Section 138
Negotiable Instrument Act P.S. Shahganj
District Agra pending in the court of
Additional Judicial Magistrate, Court No.3,
Agra and therefore, the proceedings of the
aforesaid case may be quashed by this
Court.

6. Considering the arguments as
advanced by learned counsel for the parties
and the statement given by learned counsel
for opposite party no.2, a draft of
Rs.1,50,000/- is being handed over to the
learned counsel for opposite party no.2
today by the learned counsel for the
applicants in Court and a photostat copy of
the same is being kept in the file of this
case as well as in the file of learned AGA.

7. Learned AGA has submitted that
since
the
parties
have
entered
into
compromise and the cheque amount has
been paid by way of bank draft, therefore,
no useful purpose would be served if the
proceedings of the aforesaid case go on
further.

8. Learned counsel for the parties has
drawn the attention of this Court and placed
reliance on the judgment of the Hon'ble
Apex Court in support of their case.

(i) B.S. Joshi Vs. State of
Haryana & Others 2003 (4) ACC 675.

(ii) Gian Ssingh Vs. State of
Punjab 2012 (10) SCC 303.

(iii) Dimpey Gujral And Others
Vs.
Union
Territory
Through
Administrator 2013 (11) SCC 697.

(iv)
Narendra
Singh
And
Others Vs. State of Punjab And Others
2014 (6) SCC 466.

(v)
Yogendra
Yadav
And
Others Vs. State of Jharkhand 2014 (9)
SCC 653.

9. Summarizing the ratio of all the
above cases the latest judgment pronounced
by Hon'ble Apex Court in the case of
Parbatbhai
Aahir
@
Parbatbhai
Bhimsinhbhai Karmur & Ors. Vs. State
of Gujarat & Anr,; reported in (2017) 9
SCC 641 and in paragraph no.16, the
Hon'ble Apex Court has summarized the
broad principles with regard to exercise of
10 All. Rajeev Mohan Saxena & Ors. Vs. State of U.P. & Anr.
353
powers under Section 482 Cr.P.C. in the
case of compromise/settlement between the
parties which emerges from precedent of
the subjects as follows:-

i. "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 recognizes and preserves powers
which inhere in the High Court.

ii.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.

iii. 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;

iv. 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;

v. 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;

vi. 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;

vii. 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;

viii. Criminal cases involving
offences which arises 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;

ix. 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
354 INDIAN LAW REPORTS ALLAHABAD SERIES

x. There is yet an exception to the
principle set out in propositions (viii) and
(ix) 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. The Apex Court has also laid
down the guidelines where the criminal
proceedings
could
be
interfered
and
quashed in exercise of its power by the
High Court in the following cases:-(i) R.P.
Kapoor Vs. State of Punjab, AIR 1960
S.C. 866, (ii) State of Haryana Vs.
Bhajanlal, 1992 SCC (Crl.)426, (iii) State
of Bihar Vs. P.P. Sharma, 1992 SCC
(Crl.)192 and (iv) Zandu Pharmaceutical
Works Ltd. Vs. Mohd. Saraful Haq and
another, (Para-10) 2005 SCC (Cri.) 283.

11. From the aforesaid decisions the
Apex Court has settled the legal position
for quashing of the proceedings at the
initial stage. The test to be applied by the
court
is
to
whether
uncontroverted
allegation as made prima facie establishes
the offence and the chances of ultimate
conviction is bleak and no useful purpose
is likely to be served by allowing
criminal proceedings to be continue. In
S.W. Palankattkar & others Vs. State
of Bihar, 2002 (44) ACC 168, it has
been held by the Hon'ble Apex Court that
quashing of the criminal proceedings is
an exception than a rule. The inherent
powers of the High Court under Section
482
Cr.P.C
itself
envisages
three
circumstances under which the inherent
jurisdiction may be exercised:-(i) to give
effect an order under the Code, (ii) to
prevent abuse of the process of the court ;
(iii) to otherwise secure the ends of
justice. The power of High Court is very
wide but should be exercised very
cautiously to do real and substantial
justice for which the court alone exists.

12. With the assistance of the
aforesaid guidelines, keeping in view the
nature and gravity and the severity of the
offence which are more particularly is
private dispute and differences it is deem
proper and meet to the ends of justice.
The proceeding of the aforementioned
case be quashed.

13. The present 482 Cr.P.C.
application stands allowed. Keeping in
view the law laid down by the Hon'ble
Apex Court in the above referred
judgment
and
in
view
of
the
statement/compromise
made
by
the
applicants as well as opposite party no.2
and the observation made above, the
entire proceedings of Complaint Case
No.11639 of 2019 (Smt. Sweta Agrawal
vs J.R. Associate and others), under
Section 138 Negotiable Instrument Act
P.S. Shahganj District Agra pending in
the
court
of
Additional
Judicial
Magistrate, Court No.3, Agra is hereby
quashed.

14. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

15.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
10 All. Gaurav Gulati @ Dipesh Gulati Vs. State of U.P.
355
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)10ILR A355
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.09.2021

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Application U/S 482 Cr.P.C. No. 9189 of 2021

Gaurav Gulati @ Dipesh Gulati ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Awadesh Kumar Shukla

Counsel for the Opposite Party:
A.G.A., Sri Kamlesh Kumar Dwivedi

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Section 311 - power to summon
material witness, or examine person
present - Indian Penal Code, 1860 -
Sections 394, 302, 201, 411 - court is
competent to exercise power even suo
motu if no application under section 311
CrPC has been filed by either of the
parties - Court must satisfy itself, that it
was in fact essential to examine such a
witness, or to recall him for further
examination in order to arrive at a just
decision of the case.(Para - 6)

Applicant filed an application under section 311
Cr.P.C. - for summoning Dr. Sunil Yadav, as a
court witness, who had conducted medical
examination - trial Judge vide order dated
12.02.2021 rejected the application .

HELD:-The Court shall summon and examine or
recall and re-examine any such person if his
evidence appears to be essential to the just
decision of the case, the impugned order dated
12.02.2021 is hereby quashed and matter is
remitted back to the court concerned.(Para - 9)

Application u/s 482 Cr.P.C. partly allowed.
(E-7)

List of Cases cited:-

Natasa Singh Vs Cbi (State)

(Delivered by Hon'ble Gautam
Chowdhary, J.)

1. Learned counsel for the applicant
files rejoinder affidavit today, taken on
record.

2.

Heard
learned
counsel
for
applicant, learned A.G.A. for the State, Sri
Kamlesh Kumar Dwivedi, learned counsel
for O.P. No. 2 perused the record.

3. This application has been filed with
a prayer to set aside the order dated
12.02.2021 passed in the application moved
by the counsel for the accused/applicant
rejecting the application paper No. 100 Kha
in S.S.T. No. 447 of 2015 (State Vs.
Gaurav Gulati @ Dipesh) arising out of
case crime No. 607 of 2015, under sections
394, 302, 201, 411 IPC, P.S. Hariparwat,
District Agra and further may be pleased to
direct the learned court below to summon
the Dr. Sunil Yadav, under section 311
Cr.P.C. as a court witness to get him
examine on oath for just decision of the
case.

4. It is contended by learned counsel
for the applicant that the FIR of the present
against the unknown person has been
lodged on 23.06.2015 with case crime no.
607 of 2015, under sections 394, 302 IPC,
P.S. Hariparwat, District Agra. After
lodging the FIR the inquest report of both
the deceased namely Km. Diksha nd Smt.