# Shivam & Ors v. State of U.P. & Anr

- **Citation:** (2025) 9 ILRA 559
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-03
- **Case number:** Application U/S 482 No. 15400 of 2018
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivam-ors-v-state-of-u-p-anr-53930
- **Pages:** 7

## Headnote

G.A., Rajesh Kumar Pandey

Issue for consideration
Matters pertain to quashing the impugned
charge sheet

Headnotes
Indian Penal Code-sec 406-Applicant nos.1
and 3 are the real brothers- Applicant nos.2 and
4 are mother and father of Applicant nos.1 and
3-sale deed contains a general stipulation -any
loan against the property in question would be
paid by the purchaser-loan amount against the
property in question have been paid to the bank
and no dues certificate has been issued-no
entrustment of the property by the informant to
the Applicants- ownership was transferred by
sale transaction-any condition of sale contract is
violated by any party to the contract-the liability
would be a civil liability and no offence under
560 INDIAN LAW REPORTS ALLAHABAD SERIES
Section
406
I.P.C.
would
be
attracted.
Application allowed. (E-9)

Case Law Cited

## Text

9 All. Shivam & Ors. Vs. State of U.P. & Anr.
559
obstruction, annoyance or injury or risk of
obstruction, annoyance or injury to any
person lawfully employed and it also could
not be reflected that such disobedience
caused or tended to cause danger to human
life, health or safety or caused or tends to
cause riot or affray, therefore, prima facie,
it reflects, essential ingredient Nos. 2 and 3
of Section 188 IPC are not fulfilled and
therefore, offence punishable under section
188 IPC is not made out against applicant.

29. Further, however, learned AAG
placed reliance on the judgement of the
Apex Court passed in case of Sayyed
Hassan (supra) but facts of that case were
distinguishable from the facts of present
case. In that case prohibitory order was
passed by Commissioner Food and Safety
and therefore, Apex Court after considering
the third ingredient of Section 188 IPC held
that disobedience of such order attracts the
provision
of
Section
188
IPC.
30.
Therefore, considering the facts of the
present case it is apparent that on the basis
of evidence collected by the Investigating
Officer, no offence punishable under
section 188 IPC is made out against the
applicant and though charge sheet of the
present case cannot be quashed on the
ground that cognizance was barred by
virtue of section 195(1)(a)(i) Cr.P.C. but on
this ground charge sheet can very well be
quashed. Law is settled, if evidence
collected during investigation does not
disclose alleged offence then charge sheet
can be quashed (See: State of Haryana
and others Vs. Bhajan Lal and others
1992 Supp (1) SCC 335).

31. Therefore, from the discussion
made above, in my view, cognizance and
summoning order dated 9.9.2019 as well as
charge sheet filed against the applicant and
proceeding pending against the applicant
are bad and are liable to be quashed.

32. Accordingly, the cognizance and
summoning
order
dated
9.9.2019,
chargesheet filed against the applicant and
proceeding pending against him are,
hereby,
quashed.
33.
The
instant
application u/s 528 BNSS stands allowed.
---------
(2025) 9 ILRA 559
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.09.2025

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Application U/S 482 No. 15400 of 2018

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

Counsel for the Applicants:
Mahipal Singh

Counsel for the Opposite Parties:
G.A., Rajesh Kumar Pandey

Issue for consideration
Matters pertain to quashing the impugned
charge sheet

Headnotes
Indian Penal Code-sec 406-Applicant nos.1
and 3 are the real brothers- Applicant nos.2 and
4 are mother and father of Applicant nos.1 and
3-sale deed contains a general stipulation -any
loan against the property in question would be
paid by the purchaser-loan amount against the
property in question have been paid to the bank
and no dues certificate has been issued-no
entrustment of the property by the informant to
the Applicants- ownership was transferred by
sale transaction-any condition of sale contract is
violated by any party to the contract-the liability
would be a civil liability and no offence under
560 INDIAN LAW REPORTS ALLAHABAD SERIES
Section
406
I.P.C.
would
be
attracted.
Application allowed. (E-9)

Case Law Cited
1. State of Gujarat Vs. Jaswantlal Nathalal, AIR
1968 SC 700

List of Acts
Indian Penal Code

List of Keywords
Civil liability; Section 406 I.P.C.

Appearances of parties
Counsel for Applicant :- Mahipal Singh
Counsel for Opposite Party :- G.A.,Rajesh Kumar
Pandey

(Delivered by Hon'ble Vikram D.
Chauhan, J.)

1. Heard learned counsel for the
Applicants and learned A.G.A. for the
State. No one appears on behalf of
Opposite party no.2.

2. By order dated 18.4.2024, Opposite
party no.2 was proceeded ex-parte. On
29.7.2025 also no one appeared on behalf
of opposite party no.2.

3. This application under Section 482
Cr.P.C. is preferred by Applicants for
quashing the impugned charge sheet dated
3.6.2017 in Criminal Case No.1702 of
2017, State Vs. Shivam and others, arising
out of Case Crime No.107 of 2017, under
Sections 406, 120-B I.P.C., Police Station
Badhapur, District Bijnor.

4. It is submitted by learned counsel
for Applicants that Applicant nos.1 and 3
are the real brothers. Applicant nos.2 and 4
are mother and father of Applicant nos.1
and
3.
On
4.3.2017,
present
first
information report was lodged by Opposite
party no.2 against Applicants. It is alleged
in first information report that informant
Manju Tyagi and Manish Tyagi executed a
sale deed in favour of Shivam Agarwal
(Applicant no.1) on 6.4.2015 of agricultural
land area 3.618 hectare situated at Mauja
Bhajrawala
Jagir,
Pargana
Badhapur,
District-Bijnor
including
liability
of
agricultural debt. Shivam Agarwal and his
father Hari Om Agarwal assured to pay the
bank loan. On the same day i.e. 6.4.2015
his sister Monika Tyagi also executed a
sale deed in favour of Smt. Rashmi
Agarwal of agricultural land, area 1.070
hectare situated at Mauja Ramdas Bairagai,
Pargana
Badhapur,
District
Bijnor
including liability of agricultural loan upon
the said land. Rashmi Agarwal, her
husband Hari Om Agarwal and their son
Lavi Agarwal assured to pay the aforesaid
bank
loan.
The
loan
amount
was
Rs.9,65,000/- from Punjab National Bank,
Badhapur. It is alleged that they have not
paid the aforesaid loan amount.

5. Investigating Officer investigated
the matter and has recorded the statement
of the informant and witnesses of the fact,
namely, Smt. Manju Tyagi-informant and
witnesses Smt. Manisha Tyagi, Smt.
Monika Tyagi, Mohit Tyagi and Satendra
Tyagi
under
Section
161
Cr.P.C.
Thereafter,
the
Investigating
Officer
submitted charge sheet against Applicants
under Sections 406, 120-B I.P.C. on
3.6.2017.

6. Learned counsel for Applicants
submits that the father of opposite party
no.2 and Monika Tyagi was posted as SubInspector
at
Police
Station-Kotwali,
Najibabad, Bijnor in the year 2015.
Applicants are businessmen and they are
carrying business at Najibabad, Bijnor. The
father of opposite party no.2 stated to
Applicant
no.1
to
sell
abovenoted
9 All. Shivam & Ors. Vs. State of U.P. & Anr.
561
agricultural land. He concealed the fact of
loan
amount,
taken
upon
the
said
agricultural land. The Applicant no.1
trusted upon the father of opposite party
no.2 and gave Rs.10 lacs as advance
amount for purchasing the aforesaid
agricultural land. Thereafter, the Applicant
no.1 made a query from the revenue
department and found that there is
agricultural loan of Punjab National Bank
upon the said agricultural land. The
Applicant nos.1 and 3 requested to return
the advance amount of Rs.10 lacs due to
agricultural loan upon the aforesaid land.
But the father of the opposite party no.2
denied to return the aforesaid advance
amount.

7. It is further submitted by learned
counsel for the Applicants that thereafter,
Applicant no.1 had to compromise and got
executed sale deed in his favour, executed
by opposite party no.2 and her sister
Manisha Tyagi and another sale deed in
favour of his mother Smt. Rashmi Agarwal
executed by another daughter of opposite
party no.2-Monika Tyagi on 6.4.2015. It is
true that the Applicant no.1 assured to pay
the said loan amount as mentioned in the
sale deed, but Applicants did not state to
pay the said loan amount within specific
period. The opposite party no.2 and his
sister Monika Tyagi did not pay any
amount in respect of aforesaid loan since
2013 till the execution of sale deed dated
6.4.2015. While the said loan was taken in
the year 2013 as Rs.2,33,000/- in one
account and Rs.2,33,000/- in another
account and Rs.1,86,000/- in the third
account.
The
total
amount
was
Rs.6,52,000/- in the year 2013 and which at
present was Rs.13,16,000/-.

8. It is further stated that Applicant
nos.3 and 4 are neither the party of both the
sale deeds nor they are witnesses of said
sale deeds. They have no concern with the
aforesaid sale deeds. They are falsely
implicated in this present case due to their
relation being the family. Applicant no.1 as
well as Applicant no.2 did not deny to pay
the said loan amount. Till the payment of
loan amount the said land purchased by
them cannot be free and without payment
of loan their names cannot be recorded in
the
revenue
record.
The
aforesaid
Applicants
are
having
possession
of
aforesaid land since the date of sale deed,
but due to the aforesaid loan amount their
name could not be entered in revenue
records.

9. Applicant nos.1 and 2 were ready to
pay the said loan amount.Applicant no.1
went to Punjab National Bank, Badhapur
and gave an Application on 10.3.2017 to
Manager, Punjab National Bank, Badhapur
requesting to provide statement of account
for payment of said amount. It is relevant to
state here that the Manager returned the
said application on ground that the said
account has become NPA (Non Performing
Asset)
and
after
taking
instruction
regarding the loan amount, loan may be
adjusted under the scheme of One Time
Settlement (OTS). So the Applicant no.1
and 2 were trying to pay the said loan
amount after OTS Scheme.

10. Thereafter, the bank concern made
correspondence with the Applicants and
settled the loan amount under the OTS
scheme with the Applicant nos.1 and 2. In
respect of OTS scheme the Applicant nos.1
and 2 deposited token amount in all three
loan
accounts
(1)
A/c
No.059200ae00001229 in the name of
Monika
Tyagi
(2)
A/c
No.059200ae00001210 in the name of
Manju
Tyagi
Rs.1,00,000/-
(3)
A/c
562 INDIAN LAW REPORTS ALLAHABAD SERIES
No.059200ae00001238 in the name of
Manisha
Tyagi
Rs.1,00,000/-
on
17.11.2017. The bank concern received the
said amount and issued receipt of the same
to Applicant nos.1 and 2 as token amount.
After settlement under the OTS scheme the
Applicant nos.1 and 2 paid rest amount
Rs.1,18,000/- by cheque. The said amount
was debited from the account of Shubham
Agarwal and credited in the account of
Monika Tyagi on 6.1.2018.

11. Thereafter, the Applicant nos.1
and 2 deposited rest amount under the OTS
scheme in pursuance of settled amount
Rs.4,58,000/-. The bank concern issued no
dues certificate on 17.1.2018 in the name of
Manju Tyagi, Manisha Tyagi and Monika
Tyagi separately by closing the loan
account under OTS scheme. Bank concern
executed reconveryance deed on 20.1.2018
and released the mortgage land. Applicant
nos.1 and 2 deposited the token amount of
Rs.2,10,000/- in all three loan account on
17.11.2017 under the OTS scheme and
after clearing the loan amount, the bank
concern issued no dues certificae on
17.1.2018 after closing the loan account of
15.1.2018.

12. Learned A.G.A. has opposed this
application and submits that the charge
sheet has been rightly submitted and the
applicants
have
been
summoned
in
accordance with law. The applicants have
not deposited the loan amount as per the
agreement
and
as
such
the
present
application is liable to be dismissed.

13. Initially, a first information report
dated 4.3.2017 was lodged at Police
Station-Badhapur, District-Bijnor, under
Sections 420, 406 I.P.C. against the
Applicants-accused. The first information
report was lodged by one Manju Tyagi. As
per the allegations in the first information,
it is alleged by the informant that on
6.4.2015 the informant Manju Tyagi and
Manish Tyagi sold their agricultural land to
Shivam Agarwal-accused. At the time of
the aforesaid sale of the land, there was
agricultural loan against the aforesaid land
and the accused Shivam Agarwal & his
father Hariom Agarwal had assured the
sellers that they would deposit the loan
amount with the bank and aforesaid fact
was also recorded in the sale deed. On the
same day i.e. 6.4.2015 the sister of the
informant, namely, Monika Tyagi has also
executed sale deed of their agricultural land
in favour of accused-Rashmi Agarwal and,
on the aforesaid land, also there was
agricultural loan which was assured to be
deposited by Rashmi Agarwal, Hariom
Agarwal and Lavi Agarwal and the recital
in respect of the same was also recorded in
the sale deed. Subsequently, the informant
receives notice from the bank for Rs
9,65,000/-. On repeated requests, the
accused persons have not deposited the
amount due with the bank. The accused
persons are utilising the aforesaid amount
in the business.

14. In pursuance to the abovementioned first information report, the
Investigating Officer has recorded the
statement
of
informant-Manju
Tyagi,
Manisha Tyagi, Monika Tyagi, Mohit
Tyagi,
Satyendra
Tyagi,
who
have
supported the prosecution case. Thereafter,
the
Investigating
Officer
submitted
chargesheet dated 3.6.2017 under Section
406 I.P.C. read with Section 120B I.P.C.
The court concerned, thereafter, has taken
cognizance on 8.11.2017.

15. The sale deed of land in question
has been executed by Manisha Tyagi in
favour of Shivam Agarwal on 6.4.2015.
9 All. Shivam & Ors. Vs. State of U.P. & Anr.
563
The aforesaid sale deed contains a recital
that on debt/loan on the land in question
would be paid by the purchaser. Similarly,
on 6.4.2015 sale deed has been executed by
Monika Tyagi in favour of Smt. Rashmi
Agarwal. The aforesaid sale deed also
contained a recital that debt/loan on the
land in question would be paid by the
purchaser.

16. The Applicants case is to the effect
that the Applicant nos.1 and 2 were ready
to pay the loan amount and, in this respect,
went to the Punjab National Bank and
applied on 10.3.2017 to the Manager of the
Punjab National Bank for providing the
statement of account for payment of the
loan amount in question. The Manager
concerned
returned
the
aforesaid
application informing that the account has
become NPA (Non Performing Asset) and
only after seeking instruction regarding the
loan amount, the loan would be adjusted
under the One Time Settlement (OTS)
scheme of Bank. It is also stated by the
Applicants that the Applicants repaid the
loan amount in question under the OTS
scheme of bank and a reconveyance deed
was executed on 20.1.2018 and the bank
concerned has also issued a No Dues
Certificate on 17.1.2018 in the name of the
sellers by closing the loan account.

17.
The
Applicants
are
being
proceeded under Sections 406 and 120B of
I.P.C. Section 406 of I.P.C. provides
punishment for criminal breach of trust.
The offence of criminal breach of trust is
defined under Section 405 I.P.C. The said
section provides 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. Under Section 54 of Transfer of
Property Act, "Sale" is a transfer of
ownership in exchange for a price paid or
promised or part-paid and part-promised. In
the present case, the ownership of the
property in question was transferred in favour
of the Applicants by the informant. The sale
deeds in question contained a stipulation that
in the event of any loan against the property,
the purchaser would pay the loan. The
expression entrustment of property signifies
that the person was handing over the property
to another person, the first person continued
to be owner of the property in question. The
sale of the property does not create any trust
between the seller and the purchaser and the
sale
transaction
imports
transfer
of
ownership. The transfer of ownership implies
that the purchaser has all the rights in respect
of the property in question including the right
to enjoy the property as he intends to. It is
true that the sale deeds in question contains a
stipulation with regard to the payment of the
loan against the property by the purchaser of
the property. The aforesaid condition in the
sale deed was the terms of transfer of liability
against the loan in favour of the purchaser
and did not create any trust between the
seller and the purchaser.

19. In the case of State of Gujarat Vs.
Jaswantlal Nathalal, AIR 1968 SC 700
the supreme court has held as under:-

"8. The term "entrusted" found in
Section 405 IPC governs not only the
words "with the property" immediately
following it but also the words "or with any
564 INDIAN LAW REPORTS ALLAHABAD SERIES
dominion over the property" occurring
thereafter - see Velji Raghvaji Patel v.
State of Maharashtra[(1965) 2 SCR 429] .
Before there can be any entrustment there
must be a trust meaning thereby an
obligation annexed to the ownership of
property and a confidence reposed in and
accepted by the owner or declared and
accepted by him for the benefit of another
or of another and the owner. But that does
not mean that such an entrustment need
conform to all the technicalities of the law
of trust - see Jaswantrai Manilal Akhaney
v. State of Bombay[[1956] SCR 483, 498500] . The expression "entrustment" carries
with it the implication that the person
handing over any property or on whose
behalf that property is handed over to
another, continues to be its owner. Further
the person handing over the property must
have confidence in the person taking the
property so as to create a fiduciary
relationship
between
them.
A
mere
transaction of sale cannot amount to an
entrustment. It is true that the Government
had sold the cement in question to BSS
solely for the purpose of being used in
connection with the construction work
referred to earlier. But that circumstance
does not make the transaction in question
anything other than a sale. After delivery of
the cement, the Government had neither
any right nor dominion over it. If the
purchaser or his representative had failed
to comply with the requirements of any law
relating to cement control, he should have
been prosecuted for the same. But we are
unable to hold that there was any breach of
trust."

20. It is to be noted that the sale deed
in question did not provide any stipulation
that the loan amount against the property in
question was required to be paid by the
purchaser-Applicants within a stipulated
time period. The sale deed contains a
general stipulation that any loan against the
property in question would be paid by the
purchaser. The Applicants have made a
specific case that the loan amount against
the property in question have been paid to
the bank and no dues certificate has been
issued in this respect by the concerned
bank. The pleadings in this respect are
contained in paragraph 16, 17 and 18 of the
affidavit filed in support of this application.
The opposite party-State has not denied the
aforesaid averments of the Applicants in
their counter affidavit.

21. It is further to be seen that the
Applicants have repaid the loan amount
and has honoured the condition in the sale
deed. Even otherwise, there was no
entrustment
of
the property
by
the
informant to the Applicants, in fact the
ownership of the property was transferred
by sale transaction. In the present case,
there is no material or circumstance to
demonstrate entrustment of property and in
fact the present case is a case of sale
transaction. If any condition of sale
contract is violated by any party to the
contract, the liability would be a civil
liability and no offence under Section 406
I.P.C.
would
be
attracted.
More
particularly, in the circumstances where the
loan in question has been repaid by
Applicants to bank concerned and the bank
concerned has issued a no dues certificate.
Further, it has not been shown by opposite
parties that the Applicants 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 is made touching the discharge of
such trust. Mere inaction in completing the
stipulations of contract of sale without
disposition of the property would not
9 All. Rohit Sharma Vs. State of U.P. & Anr.
565
constitute an offence under Section 406 of
the Indian Penal Code. The transaction
alleged or omission on part of Applicant in
the present case is founded on the violation
of the terms of contract which is civil
wrong.

22. In view of the facts and
circumstances
and
reasons
stated
hereinabove, the present 482 Cr.P.C
application is allowed and the criminal
proceedings including chargesheet dated
3.6.2017 in Criminal Case No. 1702 of
2017 (State Vs Shivam and others) arising
out of Case Crime No. 107 of 2017, under
Sections 406 and 120B I.P.C, Police
Station-Badhapur,
District-Bijnor
are
hereby quashed.
---------
(2025) 9 ILRA 565
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.09.2025

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Application U/S 482 No. 16977 of 2023

Rohit Sharma ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicants:
Ahmad Saquib Mansoor, Randhir Jain,
Sandeep Kumar Keshari

Counsel for the Opposite Parties:
Arunesh Kumar Singh, G.A.

Issue for consideration
Legality of summoning order

Headnotes
Matrimonial dispute-Indian Penal Code-
Section 498A-Applicant is brother-in-law of
informant- general and omnibus allegations-
date of demand of dowry and the manner in
which demand for dowry was made is not
stated- aforesaid allegations cannot be a ground
for summoning the applicant-accused - criminal
proceedings quashed. Application allowed. (E-9)

Case Law Cited
1. Viri Singh and another Vs State of U.P. and
another - 2025:AHC:147074
2. Achin Gupta Vs State of Haryana, 2024 INSC
369
3. Dara Lakshmi Narayana & Others Vs State of
Telangana & Another, 2024 INSC 953
4. Geeta Mehrotra and another Vs State of Uttar
Pradesh and another - 2012 (10) SCC 741

List of Acts
1. India Penal Code

List of Keywords
Vague and general allegations; dowry; Section
498A; relative of the husband

Appearances of parties
Counsel for applicant(s) : Ahmad Saquib
Mansoor, Randhir Jain, Sandeep Kumar Keshari
Counsel for Respondent(s) : Arunesh Kumar
Singh, G.A.

(Delivered by Hon'ble Vikram D.
Chauhan, J.)

1. Heard Sri Randhir Jain and Sri
Sandeep Kumar Kesari, learned counsels
for the Applicant, Sri Arunesh Kumar
Singh, learned counsel for opposite party
no.2 and learned A.G.A. for the State.

2. The present application is preferred
by Applicant for quashing the chargesheet
dated 12/5/2019 under sections 498A, 323,
504, 506 of I.P.C. and under sections 3/4 of
Dowary Prohibition Act, 1961, police
Station - Chaubeypur, District - Varanasi,
as well as, cognizance order dated
25/7/2019 in criminal case no. 999 of 2019
(State Vs Anil Sharma and others) arising
out of Case Crime No. 02 of 2019 under
sections 498A, 323, 504, 506 I.P.C and