# Saroj Yadav & Ors v. State of U.P. & Anr

- **Citation:** (2015) 2 ILRA 723
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-05
- **Case number:** Application U/S 482 No. 19266 of 2014
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saroj-yadav-ors-v-state-of-u-p-anr-43291
- **Pages:** 5

## Headnote

Cr.P.C.-Section 482-Quashing of criminal
proceeding-offence under Section 419
and 420 IPC-on ground in absence of
724
 INDIAN LAW REPORTS ALLAHABAD SERIES
ingredients of cheating-no offence made
out-dispute being purely civil nature-no
effort made to pay balance amount of
sale consideration and get sale deed
registered-in absence of particular of
date in agreement deed-period would
be3 years-mere execution of sale deed in
favor of third party-except breach of
contract-no offence made out impugned
compliant including proceeding-amounts
abuse of the process of Court-quashed.
Held: Para-9 & 10

## Text

2 All] Saroj Yadav & Ors. Vs. State of U.P. & Anr.
723
Registrar on the basis of prima facie
satisfaction, as he has to deal with them
for
performing
his
administrative
functions under the various provisions of
the Act as detailed above. The aggrieved
parties are left open to adopt the remedies
available such as civil suit."
16. It is perhaps in the above
backdrop that this Court in Committee of
Management, Maharana Pratap Vidyalaya
(supra) held as follows:
"9. In order to avoid a large number of
writ petitions filed for quashing the orders
passed by the educational authorities during
the process of elections and in seeking
directions to them, we hereby declare that
the principles of law laid down by the
Supreme Court in N.P. Ponnuswami v.
Returning Officer, AIR 1952 SC 64;
Harcharan Singh v. Mohinder Singh and
others, AIR 1968 SC 1500; Mohinder Singh
Gill and another v. The Chief Election
Commissioner, AIR 1978 SC 851; Jyoti Basu
and others v. Debi Ghosal and others, AIR
1982 sc 983; Harikrishna Lal v. Bau Lal
Marandi, (2003) 8 SCC 613 and Shyamdeo
Pd. Singh v. Naval Kishore Yadav, (2000) 8
SCC 46, restraining the Courts from
interfering in the process of election after the
elections are notified is equally applicable to
the elections of the office bearers of the
committee of management of the societies as
well as the Committee of Management to be
elected in accordance with the provisions of
the scheme of administration of the
educational institutions. The principles of
law that the Courts should keep their hands
off in electoral matters and that all election
disputes must be tried by the Election
Tribunal, is also incorporated in the
Constitution of India under Article 329 (b)
for the elections of the Parliament or to
the house or either house of the
legislature, under Article 243 O for the
elections of Panchayats and Article 243
ZG in the matter of elections of the
municipalities.
10. There is no reason as to why these
time tested and settled principles should not
be made applicable to the elections of the
office bearers of the societies and for the
Committee of Management under the scheme
of
administration
of
the
educational
institutions.
11. We have every reason to believe
that in future the Court will refuse to
interfere in the process of elections until
the elections are concluded and will
refuse to entertain election disputes and
relegate the parties to approach the
Election Tribunals or to file civil suit to
challenge the results of the elections."
17. Accordingly and in view of the
above, this Court declines to entertain this
writ petition and it is accordingly
dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.05.2015
BEFORE
THE HON'BLE MANOJ MISRA, J.
Application U/S 482 No. 19266 of 2014
Saroj Yadav & Ors.
 ...Applicants
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicants:
Sri I.N. Yadav, Sri Alok Kumar Yadav
Counsel for the Opp.Parties:
A.G.A., Sri M.C. Yadav, Sri Manoj Yadav
Cr.P.C.-Section 482-Quashing of criminal
proceeding-offence under Section 419
and 420 IPC-on ground in absence of
724
 INDIAN LAW REPORTS ALLAHABAD SERIES
ingredients of cheating-no offence made
out-dispute being purely civil nature-no
effort made to pay balance amount of
sale consideration and get sale deed
registered-in absence of particular of
date in agreement deed-period would
be3 years-mere execution of sale deed in
favor of third party-except breach of
contract-no offence made out impugned
compliant including proceeding-amounts
abuse of the process of Court-quashed.
Held: Para-9 & 10
9. It has not been demonstrated either in
the complaint or in the counter affidavit
that there was some period fixed for
performance under the contract and that
third party sale took place within that
period. Further, there is nothing in the
complaint to show that within three
years of the agreement for sale or within
any stipulated period fixed by the
agreement, on any specific date, effort
was
made
to
demand
specific
performance
of
the
agreement
by
tendering the balance sale consideration
to the applicants. The bald allegation
that an additional Rs.50,000/- was taken
by the accused is also not supported by
mention of any date or written receipt.
Under
the
circumstances,
mere
execution of sale deed in favour of third
party after lapse of more than three
years from the date of the agreement
would not be sufficient to presume that
there existed any dishonest intention on
the part of the applicants at the time of
entering into an agreement.
10. In view of the discussion made
above, the complaint does not disclose
commission of any offence except a
simple breach of contract, which can be
resolved in civil proceedings, if otherwise
not barred by limitation. Accordingly, the
impugned
complaint
as
also
the
consequential proceeding would amount
to abuse of the process of Court and,
therefore, to secure the ends of justice
the same deserves to be quashed.
Case Law discussed:
(2009) 14 SCC 696; (2003) 3 SCC 11.
(Delivered by Hon'ble Manoj Misra, J.)
1. Heard Sri Alok Kumar Yadav for
the applicants; the learned AGA for the
State; Sri Manik Chandra Yadav for the
opposite party no.2 and perused the
record.
2. The instant application under
Section 482 CrPC has been filed seeking
quashing of the proceeding of case
no.1376
of
2013
(Uma
Shankar
Bhattacharya Vs. Dinesh Singh Yadav
and others), under Sections 419 and 420
IPC, police station Daraganj, district
Allahabad, pending in the Court of
Special
Chief
Judicial
Magistrate,
Allahabad.
3. Briefly stated the facts giving rise to
this application are that the opposite party
no.2 filed a complaint against the applicants
alleging therein that Saroj Yadav (applicant
no.1) had entered into a registered agreement
for sale dated 9th March, 2007 with the
complainant thereby agreeing to execute sale
deed in respect of her share in House no.
82/62, Matiyara Road for which the
applicant no.1 took Rs.1 lac by way of
earnest money and, thereafter, further sum of
Rs.50,000/- was taken by her husband
Dinesh Singh Yadav (applicant no.2) and his
brother Ravi Karan Yadav (applicant no.3),
but despite having taken Rs.1,50,000/- they
did not execute sale deed in favour of the
complainant and, later, on 7th May, 2011, a
sale deed was executed in favour of one
Suman Bajpayee for a sum of Rs.6,50,000/-.
Similar allegations have been made in the
statements recorded under sections 200 and
202 CrPC.
4. The quashing of the complaint
and the proceeding in pursuance thereof
has been sought on the ground that the
2 All] Saroj Yadav & Ors. Vs. State of U.P. & Anr.
725
allegations made in the complaint only
make out a civil cause of action, inasmuch
as, there is nothing in the complaint or in
the statement in support thereof to suggest
that there had been a dishonest intention
on the part of the applicants from the very
beginning that is at the time of entering
into agreement for sale. It has been
submitted that in the agreement for sale,
the total consideration for the sale was
fixed at Rs.2,50,000/- and as balance
payment was not made and more than
three years passed from the date of the
agreement, sale deed was executed in
favour of third party. It has been argued
that ordinarily where no date is fixed for
execution of sale deed, the limitation for
instituting a suit for specific performance
on the agreement for sale would be three
years from the date of execution of
agreement and since, admittedly, no suit
was instituted within the period of
limitation, the complaint, which has been
lodged after six years from the date of the
agreement, is nothing but abuse of the
process of law. It has also been pleaded
that the complainant had failed to arrange
for the balance amount therefore he
cannot claim now that the applicants have
failed to execute the sale deed despite
promise. It has been submitted that the
complaint has been lodged only after the
civil proceeding had become barred by
time, which clearly goes to show
malicious intention on the part of opposite
party no.2 in filing the complaint.
5. Some dispute with regards to the
amount advanced to the applicants is also
there but that is not relevant for deciding
this case.
6. Learned counsel for the opposite
party no.2 submitted that since the
applicant no.1 had received part of the
sale consideration and the applicant no.2
had,
subsequently,
received
further
amount of Rs.50,000/- and without
returning back the money to the opposite
party no.2, they have sold the property to
a third party clearly shows that they had
been dishonest.
7. Before the court proceeds to
assess whether a case has been made out
for quashing of the complaint, it would be
useful to first discuss the law on the issue
as to whether in a case of simple breach
of contract an offence of cheating would
be made out or not, if so, then under what
circumstances. In the case Dalip Kaur v.
Jagnar Singh, (2009) 14 SCC 696, the
apex court, in paragraph 10 of the report,
observed that: "If the dispute between the
parties was essentially a civil dispute
resulting from a breach of contract on the
part of the appellants by non-refunding
the amount of advance the same would
not constitute an offence of cheating.
Similar is the legal position in respect of
an offence of criminal breach of trust
having regard to its definition contained
in Section 405 of the Penal Code."
Likewise in the case of Ajay Mitra v.
State of M.P. (2003) 3 SCC 11, a three
judges bench of the apex court, after
noticing several judgments, held, that in
order to constitute an offence of cheating
the intention to deceive should be in
existence at the time when the inducement
was offered. Unless the complaint showed
that the accused had dishonest intention at
the time complainant parted with the
money, it would not amount to an offence
of cheating but may amount to a breach of
agreement.
8. In view of the law noticed above,
in a case of a breach of contract to make
out a case for criminal prosecution of a
726
 INDIAN LAW REPORTS ALLAHABAD SERIES
person who is guilty of such breach for an
offence of cheating what is essential to be
alleged in the complaint/ statement made
in support thereof or the police report, as
the case may be, is that there had been a
dishonest intention on the part of such
person from the very beginning that is
since the inception of the agreement.
Existence of such dishonest intention can
also be inferred from the conduct of the
accused narrated in the complaint /
statement made in support thereof or the
police report, as the case may be.
9. Coming to the facts of the instant
case, from a perusal of the complaint and
the statement made in support thereof
there is nothing to show that any false
promise was made by the accused at the
time of entering into the agreement so as
to deceive or to induce the complainant
to part with money for entering into an
agreement to purchase the property.
There is also nothing in the complaint or
the statement made in support thereof to
show that the accused had dishonest
intention from the very beginning that is
since the time of entering into the
agreement
in
question.
Mere
non
performance of an agreement for sale
would not amount to commission of an
offence of cheating in absence of any
allegation that there had been dishonest
intention since the very beginning. Such
dishonest intention cannot also be
inferred from the conduct of the accused
inasmuch as they have transferred the
property to a third party after three years
from the date of the agreement for sale
which, ordinarily, is the period of
limitation to institute a suit for specific
performance, unless there is some other
date fixed for its performance. It has not
been
demonstrated
either
in
the
complaint or in the counter affidavit that
there
was
some
period
fixed
for
performance under the contract and that
third party sale took place within that
period. Further, there is nothing in the
complaint to show that within three years
of the agreement for sale or within any
stipulated period fixed by the agreement,
on any specific date, effort was made to
demand specific performance of the
agreement by tendering the balance sale
consideration to the applicants. The bald
allegation that an additional Rs.50,000/-
was taken by the accused is also not
supported by mention of any date or
written receipt. Under the circumstances,
mere execution of sale deed in favour of
third party after lapse of more than three
years from the date of the agreement
would not be sufficient to presume that
there existed any dishonest intention on
the part of the applicants at the time of
entering into an agreement.
10. In view of the discussion made
above, the complaint does not disclose
commission of any offence except a
simple breach of contract, which can be
resolved in civil proceedings, if otherwise
not barred by limitation. Accordingly, the
impugned
complaint
as
also
the
consequential proceeding would amount
to abuse of the process of Court and,
therefore, to secure the ends of justice the
same deserves to be quashed.
11. The application is allowed. The
complaint as well as the proceeding of
case no.1376 of 2013 (Uma Shankar
Bhattacharya Vs. Dinesh Singh Yadav
and others), under Sections 419 and 420
IPC, police station Daraganj, district
Allahabad, pending in the Court of
Special
Chief
Judicial
Magistrate,
Allahabad are hereby quashed.
--------
2 All] Shiv Charan Vs. Allahabad Bank AMU Branch, Aligarh & Ors.
727
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.05.2015
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE AMAR SINGH CHAUHAN, J.
C.M.W.P. No. 25953 of 2015
Shiv Charan
 ...Petitioner
Versus
Allahabad Bank AMU Branch, Aligarh &
Ors.
...Respondents
Counsel for the Petitioner:
Sri Sudhanshu Pandey
Counsel for the Respondents:
C.S.C., Sri Tarun Verma, Sri J.S. Pandey
Securitisation
and
Reconstruction
of
financial Asset and Enforcement of Security
Interest Act 2002-Section 14 (I)-words and
expressions-word
'shall'
used
heldmandatory-application without affidavitcan not allowed by District Magistratequashed.
Held: Para-10
From the aforesaid decision of the Supreme
Court in Standard Chartered Bank (Supra),
we are of the opinion that the word 'shall'
used in the first proviso to Section 14(1) of
the Act is mandatory. It is an essential
requirement
for
the
Bank
that
the
application filed under Section 14 must be
accompanied by an affidavit duly affirmed
by the authorized officer of the secured
creditor
indicating
the
ingredients
contemplated under sub clause (i) to sub
clause (ix) to the first proviso. Non filing of
the affidavit in our opinion would be fatal.
Case Law discussed:
[2014(6) SCC-1]; [2013(9) SCC 620].
(Delivered by Hon'ble Tarun Agarwala, J.)
1.
The petitioner is the guarantor and
father of respondent nos. 5 and 6 who took a
cash credit limit of rupees seventy five lacs in
a partnership firm known as S.R. Tractors in
2012 in which they were the partners. The
petitioner stood guarantee for the cash credit
limit by depositing the title deeds of his
residential house no. 5/298A, Lohia Nagar
Banna Devi, G.T. Road, Aligarh. It transpires
that the accounts of respondent nos. 5 and 6
became NPA on 31.5.2014 pursuant to which
a notice under Section 13(2) of the
Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest
Act, 2002 (hereinafter referred to as the 'Act')
dated 2.6.2014 was issued demanding a sum
of Rs. 44.92 lacs. Thereafter, symbolic
possession under Section 13(4) was also taken
on 29.8.2014. It further transpires that the
respondent bank filed an application dated
30.10.2014 before the District Magistrate
under Section 14 of the Act praying for actual
physical delivery of possession. On this
application, the Additional District Magistrate
(F&R), respondent no. 3 issued an order dated
4.3.2015 for delivery of physical possession
pursuant to which the Additional City
Magistrate, respondent no. 5 issued an order
dated 21.4.2015 fixing 6.5.2015 for taking
physical possession. The petitioner being
aggrieved
by
the
application
of
the
respondents under Section 14 of the Act filed
an application under Section 17 before the
Debt Recovery Tribunal. The Tribunal by an
order dated 1.5.2015 rejected the stay
application relying upon a decision of the
Supreme Court in the case of Harshad
Govardhan
Sondagar
Vs.
International
Reconstruction Company Ltd. and others
[2014 (6) SCC-1] on the ground that the order
under Section 14 of the Act cannot be
challenged on an application under Section 17
of the Act. The petitioner being aggrieved has
filed the present writ petition.
2. We have heard Sri Sudhanshu
Pandey, learned counsel for the petitioner