# Sharanmma v. North-East Karnataka RTC

- **Citation:** (2020) 12 ILRA 139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-17
- **Case number:** Misc. Bench No. 7894 of 2020
- **Bench:** Ritu Raj Awasthi, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharanmma-v-north-east-karnataka-rtc-45446
- **Pages:** 6

## Headnote

Criminal Law-Criminal Procedure Code (2 of
1974) - Section 482 - Quashing of proceedings
- Offences u/Ss. 406, 420 of IPC - S. 406 IPC -
necessary ingredients - misappropriation or
conversion for own use of the property
entrusted - Held - Offence u/S.406 of IPC, not
made out as it has been mentioned in the
F.I.R. itself that the petitioner returned the
Gem after testing alongwith test certificate to
the complainant - S. 420 - one of necessary
ingredient
is
fraudulent
or
dishonest
inducement - Held - nothing in the F.I.R. to
disclose
that
the
petitioner
induced
respondent no.4 to deliver any property - As
there is no inducement so it cannot be inferred
that petitioner cheated respondent no.4 in
any manner - Proceedings liable to be
quashed. (Para 18, 20, 24, 27)

Writ Petition allowed. (E- 5)

List of Cases cited: -

## Text

12 All. Avinash Jain (In F.I.R. Avinash Chand Jain) Vs. State of U.P. & Ors.
139
Ors. 2013 (4) SCC 345 has held that hyper
technicality should not be allowed to frustrate the
aim of beneficial peace legislation. In our case
hyper technicality of the learned Tribunal has
resulted into the flaw in his award. It was
established that the deceased had definitely met
with the accident involving two vehicles. It was
also proved that the accident was between the
tractor trolley and the motor cycle on which the
deceased was plying. The technical defect of
pleading should not have been made the basis of
rejection of the claim petition. I am supported in
my view by the decision of Apex Court in the
case of Gurdeep Singh v. Bhim Singh, (2013)
11 SCC 507, wherein provision of Section 173 of
the ''Act' read with Section 96 of the Code of
Civil Procedure,1908 will permit this court to
reverse the perverse findings reached by the
tribunal.
The Apex
Court
decisions
in
Sharanmma V. North-East Karnataka RTC,
(2013) 11 SCC 517. The judgment in
DulcinaFernandes V. Joaquim Xavier, First
Appeal No. 216 of 2004, decided on 14.11.2008
with also help the claimants. Therefore also the
appeal will have to succeed."

13. I am unable to accept the submission
of ld advocate appearing on behalf of Insurance
Company that the petition has been rightly
rejected as there was no mention of the number
of the vehicle in the FIR and that the deposition
of witness was also sketching.

14. The F.I.R. was lodged promptly
though the number of the vehicle was not
mentioned later on during the investigation it was
found that the vehicle was involved in the
accident. The charge-sheet was laid which has
not been doubted or challenged by anybody.
Written statement has been filed by owner
accepted that he has sold the vehicle. There is no
denial of accident. The witness who has filed the
charge-sheet
has
been
extensively
cross
examined by the advocate for the Insurance
Company and nothing could be made out that it
was a planted vehicle. The facts go to prove that
had it been a planted vehicle, the owner would
not have taken such a stand that his vehicle was
sold long back which shows that he has been
rightly charge-sheeted. The newly impleaded
owner has not even appeared before the Tribunal
or before this Court which goes to show that the
finding of fact of the Tribunal requires to be
upturned. I am supported in my view by the
decision of the Supreme Court in Mangla Ram
Versus Oriental Insurance Company Limited
and others, Laws(SC) (2018) 49 and also in the
case of Sunita and Others Versus Rajasthan State
Road Corporation and another, 2019(1) TAC
710 (SC) relied by counsel for appellant, wherein
the Apex Court has reiterated that trappings of
civil litigation be not strictly adhered to. I am
fortified in my view by the decision of the Apex
Court in Vimla Devi and others Vs. National
Insurance Company Limited and another,
(2019) 2 SCC 18.

15. Appeal is partly allowed.

16. The judgment and decree shall
stand quashed and set aside. The record be
sent back to the Tribunal for deciding on
the other issues which shall be decided on
or before 31st May, 2021 after affording
opportunity of hearing to all.
----------
(2020)12ILR A139
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.12.2020

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Misc. Bench No. 7894 of 2020

Avinash Jain (In F.I.R. Avinash Chand
Jain) ...Applicant
Versus
State of U.P. & Ors. ...Respondents
140 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Shri Naved Mumtaz Ali

Counsel for the Respondents:
G.A.

Criminal Law-Criminal Procedure Code (2 of
1974) - Section 482 - Quashing of proceedings
- Offences u/Ss. 406, 420 of IPC - S. 406 IPC -
necessary ingredients - misappropriation or
conversion for own use of the property
entrusted - Held - Offence u/S.406 of IPC, not
made out as it has been mentioned in the
F.I.R. itself that the petitioner returned the
Gem after testing alongwith test certificate to
the complainant - S. 420 - one of necessary
ingredient
is
fraudulent
or
dishonest
inducement - Held - nothing in the F.I.R. to
disclose
that
the
petitioner
induced
respondent no.4 to deliver any property - As
there is no inducement so it cannot be inferred
that petitioner cheated respondent no.4 in
any manner - Proceedings liable to be
quashed. (Para 18, 20, 24, 27)

Writ Petition allowed. (E- 5)

List of Cases cited: -

1. St. of Har & ors. Vs Bhajan Lal & ors. 1992
SCC(Cri.) 426

2.Prof. R.K.Vijaysarathy & anr. Vs Sudha
Seetharam & anr. Cri. Appeal No.238 of 2019
dated 15.2.2019

3. Anand Kumar Mahatta Vs State (NCT of
Delhi) & anr. (2019) 11 SCC706

(Delivered by Hon'ble Saroj Yadav, J.)

1. This writ petition has been filed by
Shri Avinash Jain challenging the First
Information
Report
dated
11.3.2020
(hereinafter abbreviated to as 'F.I.R.')
bearing Case Crime No.0098 of 2020,
under Sections 406, 420, 504 and 506
I.P.C., Police Station Chowk, District
Lucknow, lodged by respondent no.4 Shri
Sanjeev Pandey.

2. In short, this writ petition reveals
that opposite party no.4 lodged F.I.R.
stating that respondent no.4 gave a
patrimonial blue Gem to the petitioner at
"New Gem Testing Laboratory" for testing.
Rs.900/- testing fee was charged and a
certificate had been issued certifying that
the Gem was Synthetic.

3. It has also been written in the F.I.R.
that on the very same day in the evening at
6.00 p.m., respondent no.4 went to the
'shop' of the petitioner to know the
authenticity of the alleged Gem where the
petitioner abused and threatened to kill
respondent no.4.

4. It has also been alleged that when
respondent no.4 tried to find out regarding
the qualification of the petitioner, it came
out that the petitioner has a three months'
proficiency and a title of Graduate
Gemologist from an American Trust i.e.
G.I.A. The Informant had also stated that
he doubts that so many persons throughout
India have been working as Graduate
Gemologist causing damage to the valuable
assets of India.

5. The petitioner assailed the F.I.R. on
the following main grounds :-

i). No case under Sections 406,
420, 504 and 506 of Indian Penal Code (for
short 'I.P.C.') is made out against the
petitioner, out of the facts mentioned in the
F.I.R.

ii). The petitioner had returned
the alleged Gem to respondent no.4 after
testing,
hence
there
was
no
misappropriation.

iii). During the testing process,
nothing was done by the petitioner which
amounted to offence caused under Section
420 I.P.C.
12 All. Avinash Jain (In F.I.R. Avinash Chand Jain) Vs. State of U.P. & Ors.
141

(iv). No alleged incident of
threatening to kill or abusing to respondent
no.4 by the petitioner occurred. Thus,
allegations of criminal intimidation have
been
levelled due to mala fides.

(v). The Gemological Institute of
America is a non profit Institute dedicated
to Research and Education in the field of
Gemology.

(vi). The Graduate Gemologists
Diploma offers a Comprehensive Education
in Gemology. The allegations have been
levelled to extort the money from the
petitioner.

6. Learned A.G.A. appeared on behalf
of respondent nos.1, 2 and 3.

7. Notice was issued to respondent
no.4 Shri Sanjeev Pandey (Complainant).

8. Respondent no.4 sought time to file
counter affidavit, which was granted but he
did not file any counter affidavit.

9. Learned A.G.A. filed short counter
affidavit dated 14.10.2020 wherein it has
been stated that from investigation, no
credible evidence regarding commission of
offences under Sections 504 and 506 I.P.C.
was found, therefore these sections were
deleted from the array of offence as
invoked against the accused/petitioner and
the investigation is going on regarding the
other offences.

10. Thereafter, a rejoinder affidavit
dated 4.11.2020 was filed on behalf of the
petitioner by his cousin brother Shri Aviral
Jain denying the averments made in the
short counter affidavit filed on behalf of
respondent nos.1,2 and 3 regarding fair and
impartial investigation and alleged that the
petitioner
is
being harassed
by
the
investigating officer.

11. It has also been mentioned in the
rejoinder affidavit that E-mail receipts from
the concerned Institute regarding Diploma
by the petitioner have also been marked to
the
Police
Station
Chowk,
District
Lucknow but respondent nos.1, 2 and 3
have
purposely
concealed
the
said
communication
in
the
short
counter
affidavit.

12. Heard counsel for the petitioner
Shri Naved Mumtaz Ali and learned A.G.A.
for respondent nos.1 to 3.

13. Counsel for the petitioner relied
upon following case laws :-

i). State of Haryana and others
Vs. Bhajan Lal and others : 1992
Supreme Court Cases (Cri.) 426

ii). Prof. R.K.Vijaysarathy &
another Vs. Sudha Seetharam & another

Judgement dated 15.2.2019 :
Criminal Appeal No.238 of 2019 arising
out of Special Leave Petition (Crl.)
No.1434 of 2018.

iii). Anand Kumar Mahatta Vs.
State (NCT of Delhi) and another :

(2019) 11 Supreme Court Cases
706.

14. The counsel for the petitioner
argued that no offence under Section 406 or
420 I.P.C. is made out from the averments
made in the F.I.R. and the offences under
Sections 504/506 I.P.C. have already been
dropped by the investigating officer as
there occurred no such incident.

15. Learned A.G.A. submitted that
Sections 504 and 506 I.P.C. have been
deleted as in the investigation, it was found
that no such incident has occurred and
investigation is going on regarding other
offences.
142 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Petitioner's counsel referred the
guidelines (i), (iii), and (v) mentioned in
paragraph 102, as issued by the Hon'ble
Apex Court in the case of State of Haryana
Vs. Bhajan Lal (supra) which are quoted as
under :-

"(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)..xxxxxxxxxxx

(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).....xxxxxxxxxxxxxx

(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."

17. Now, we have to examine that
whether the facts mentioned in the F.I.R.
'taken at their face value and accepted in
their entirety', prima facie constitute any
offence?

Offence punishable under Section
406 I.P.C. is criminal breach of trust which
has been defined under Section 405 I.P.C.

Section 405 I.P.C. runs as under :-

"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".

18. In the present matter, F.I.R. discloses
that a Gem was given to the petitioner for
testing and that was returned by the petitioner to
respondent
no.4
after
testing
alongwith
certificate.
There
is
nothing
about
misappropriation of the Gem or any other
property of respondent no.4 by the petitioner.

19. The Hon'ble Apex Court in Prof.
R.K.Vijaysarathy and another (supra) has
laid down as under :

"A careful reading of Section 405
shows that the ingredients of a criminal
breach of trust are as follows :-

i). A person should have been
entrusted with property, or dishonestly use
or dispose of that property or willfully
suffer any other person to do so ; and

iii). That such misappropriation,
conversion, use or disposal should be in
violation of any direction of law prescribing the
mode in which such trust is to be discharged, or
of any legal contract which the person has
made, touching the discharge of such trust."

20. We analysed the facts mentioned
in the F.I.R. The necessary ingredient of
offence under Section 406 I.P.C. i.e.
misappropriation or conversion for own use
of the property entrusted is not there. It has
been mentioned in the F.I.R. itself that the
petitioner returned the Gem after testing
alongwith test certificate, thus the offence
under Section 406 I.P.C. is not made out.

21. Now, comes offence under
Section 420 I.P.C. Section 420 I.P.C. runs
as under :-
12 All. Avinash Jain (In F.I.R. Avinash Chand Jain) Vs. State of U.P. & Ors.
143

"420. Cheating and dishonestly
inducing delivery of property.-- Whoever
cheats and thereby dishonestly induces the
person deceived to deliver any property to
any person, or to make, alter or destroy the
whole or any part of a valuable security, or
anything which is signed or sealed, and
which is capable of being converted into a
valuable security, shall be punished with
imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine."

22. To constitute the offence under
Section 420 I.P.C., 'cheating' is an essential
ingredient and 'cheating' has been defined
under Section 415 I.P.C. which runs as
under :-

"415.
Cheating.--Whoever,
by
deceiving any person, fraudulently or
dishonestly induces the person so deceived
to deliver any property to any person, or to
consent that any person shall retain any
property, or intentionally induces the
person so deceived to do or omit to do
anything which he would not do or omit if
he were not so deceived, and which act or
omission causes or is likely to cause
damage or harm to that person in body,
mind, reputation or property, is said to
"cheat".

23. Hon'ble Apex Court in Prof.
R.K.Vijaysarathy and another (supra) has
laid down as under :

" The ingredients to constitute an
offence of cheating are as follows :-

i). there should be fraudulent or
dishonest inducement of a person by
deceiving him ;

ii).(a). the person so induced
should be intentionally induced to deliver
any property to any person or to consent
that any person shall retain any property,
or

(b). the person so induced should
be intentionally induced to do or to omit to
do anything which he would not do or omit
if he were not so deceived ; and

(iii). in cases covered by (ii) (b)
above, the act or omission should be one
which caused or is likely to cause damage
or harm to the person induced in body,
mind, reputation or property.

A
fraudulent
or
dishonest
inducement is an essential ingredient of the
offence. A person who dishonestly induces
another person to deliver any property is
liable for the offence of cheating."

24. There is nothing in the F.I.R. to
disclose
that
the
petitioner
induced
respondent no.4 to deliver any property. As
there is no inducement so it cannot be
inferred that petitioner cheated respondent
no.4 in any manner. Hence the facts
disclosed in the F.I.R. do not constitute this
offence too.

25. As regards rest of the offences ; in
the short counter affidavit filed on behalf of
respondent nos.1 to 3, it has been stated
that
from
investigation,
no
credible
evidence regarding offences under Section
504 and 506 I.P.C. was found therefore
sections 504 and 506 I.P.C. have been
dropped. Furthermore, respondent no.4
(complainant) who is an Advocate as has
been revealed by the counsel of the
petitioner during arguments, after seeking
time to file counter affidavit did not file any
counter affidavit to refute the allegations
made in the petition against him or to
justify his averments made in the F.I.R.

26. In the case of Anand Kumar
Mahatta Vs. State (supra), the Hon'ble
Apex Court has held as under :-
144 INDIAN LAW REPORTS ALLAHABAD SERIES

"30. It is necessary here to
remember the words of this Court in State
of Karnataka Vs. L.Muniswamy which
reads as follows : (SCC p.703, para 7)

"7...... In the exercise of this
wholesome power, the High Court is
entitled to quash a proceeding if it comes to
the conclusion that allowing the proceeding
to continue would be an abuse of the
process of the Court or that the ends of
justice require that the proceeding ought to
be quashed."

27. In the above circumstances, we
are of the considered view that the F.I.R.
does not disclose prima facie commission
of offence under Sections 406 and 420
I.P.C. The allegations of the F.I.R. have
been controverted by the petitioner and it
has been alleged that the complaint was
lodged with the motive to extort money and
respondent no.4 did not file counter
affidavit to rebut the averments of the
petitioner though ample time was granted
to him for the purpose. The allegations
regarding offences under Sections 504, 506
I.P.C. have already been found false by the
investigating officer, hence we find it a fit
case to quash the F.I.R.

28. In view of the above, the writ
petition is allowed. Accordingly, First
Information
Report
dated
11.3.2020
bearing Case Crime No.0098 of 2020,
under Sections 406, 420, 504, 506 I.P.C.,
Police Station Chowk, District Lucknow is
hereby quashed.
----------
(2020)12ILR A144
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2020

BEFORE

THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE SAURABH LAVANIA, J.

Misc. Bench No. 23900 of 2020

M/S Ats Reality Pvt. Ltd. ...Petitioner
Versus
U.P. Real Estate Appellate Tribunal Lko. &
Ors. ...Respondents

Counsel for the Petitioner
Kunwar Sushant Prakash

Counsel for the Respondents:
C.S.C., Prashant Kumar, Shobhit Mohan
Shukla

(A) Civil Law -Real Estate (Regulation and
Development) Act (16 of 2016) - Appeal -
Pre-deposit - Section 43(5), Proviso -
Interpretation - where a promoter files an
appeal it shall not be entertained, unless
the promoter first deposits at least thirty
per cent of the penalty, or such higher
percentage as may be determined or the
total amount to be paid to the allottee
including interest and compensation -
Argument of promoter that promoter is
only liable to pay thirty percent of the
penalty or thirty percent of the total
amount to be paid to the allottee including
interest and compensation - Held - Proviso
in providing deposit of at least thirty
percent qualifies penalty amount only and
not total amount to be paid to allottee - if
only penalty is awarded then at least
thirty percent of same has to be deposited
before the appellate authority. For the
rest, such as on amount related to interest
or compensation or amount which was
deposited by allottee and ordered to be
returned, the expression "thirty percent"
would not apply & that the promoter is
liable to deposit the whole amount
directed to be paid (Para 14, 17,19)

Complaints made by allottees against promoter
alleging delay in possession, and claiming
charges/compensation on account of inordinate
delay in putting allottees in possession - RERA
(Real Estate Regulatory Authority) directed
petitioner to put allottees in possession & for
payment of interest @ MCLR + 1% from