# Smt. Meera Mishra & Ors v. State of U.P. & Anr

- **Citation:** (2019) 3 ILRA 56
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-15
- **Case number:** U/S 482/378/407 No. 7255 of 2019
- **Bench:** Vikas Kuvar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-meera-mishra-ors-v-state-of-u-p-anr-44844
- **Pages:** 6

## Headnote

A. Criminal Law-Indian Penal Code, 1860 -
Section 406 and 506 IPC- Criminal Breach
of trust- Entrustment- of the amount -
Agreement
to
sell
admitted
and
acknowledged by the applicant - The
moment accused denied to repay the said
amount on his failure to execute the sale
deed, he had misappropriated the amount
in his benefit and the basic ingredients of
offence under Section 406 I.P.C. stood
constituted- (Para 7,8,11).

B.
Criminal
Law-Criminal
Procedure
Code, 1973 - section 482 - Scope- The
charge-sheet along with the material
collected by the police, prima facie
support the allegation contained in the
FIR. No abuse of process of court or any
illegality
made
out
warranting
interference by the Court to quash the
proceedings.

Non-execution of sale deed despite admitted
agreement to sell. Section 406 - Dispute being
criminal and not of civil nature - Intention was
not to execute the sale deed but to obtain
money by inducing the informant to believe
the proposal of execution of sale deed. (Para
12,15,18)
Application u/s 482 Cr.P.C. rejected. (E-3)

List of cases cited :-

## Text

56 INDIAN LAW REPORTS ALLAHABAD SERIES
offcer concerned for taking cognizance
regarding contravention of provisions of
the Mines and Minerals (Development
and Regulation) Act 1957."

(emphasis supplied)

15. In view of above, this
application is also liable to be dismissed
as 'FIR is also lodged against the incident
against the petitioner' is no ground for
quashing of summoning order. The FIR is
lodged under Section 304A IPC which
states that "causing death by negligence"
by the wife of deceased employee and the
complaint has been filed against the
applicant under Factories Act for not
observing requisite safety measures at the
factory.
There
is
no
illegality
in
summoning
order,
therefore,
the
application fails being sans merit.

16. Accordingly, the application u/s
482 Cr.P.C. is dismissed.

17. Interim order stands vacated.
----------
(2019)11ILR A56

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.10.2019

BEFORE
THE HON'BLE VIKAS KUVAR
 SRIVASTAVA , J.

U/S 482/378/407 No. 7255 of 2019

Smt. Meera Mishra & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Satyendra Kumar Maurya

Counsel for the Opposite Parties:
G. A.

A. Criminal Law-Indian Penal Code, 1860 -
Section 406 and 506 IPC- Criminal Breach
of trust- Entrustment- of the amount -
Agreement
to
sell
admitted
and
acknowledged by the applicant - The
moment accused denied to repay the said
amount on his failure to execute the sale
deed, he had misappropriated the amount
in his benefit and the basic ingredients of
offence under Section 406 I.P.C. stood
constituted- (Para 7,8,11).

B.
Criminal
Law-Criminal
Procedure
Code, 1973 - section 482 - Scope- The
charge-sheet along with the material
collected by the police, prima facie
support the allegation contained in the
FIR. No abuse of process of court or any
illegality
made
out
warranting
interference by the Court to quash the
proceedings.

Non-execution of sale deed despite admitted
agreement to sell. Section 406 - Dispute being
criminal and not of civil nature - Intention was
not to execute the sale deed but to obtain
money by inducing the informant to believe
the proposal of execution of sale deed. (Para
12,15,18)
Application u/s 482 Cr.P.C. rejected. (E-3)

List of cases cited :-

1. R. Kalyani Vs Janak C. Mehta & ors.(2009) 1
SCC 516,

2. Mahesh Chaudhary Vs St. of Raj. & anr.
(2009) 4 SCC 439

3. Inder Mohan Goswami Vs St. of U.P. (2012)
SCC 1

4. St. of Haryana & ors. Vs Bhajan Lal &
ors.(1992) Supp (1) SCC 335

(Delivered by Hon'ble Vikas Kuvar Srivastava, J. )

1. The application in hand is moved
under section 482 of Criminal procedure
3 All. Smt. Meera Misra & Ors. Vs. State of U.P.& Anr.
57
code, 1973 by learned counsel Sri
Satyendra Kumar Maurya on behalf of the
accused applicant involved in Case Crime
No.986/2017 under Sections 406 and 506
IPC, Police Station - Kotwali, District
Sitapur. The applicant seeks following
reliefs-

"WHEREFORE,
it
is
most
respectfully prayed that this Hon'ble court
may kindly be pleased to exercise the power
U/S 482 Cr.P.C. to quash the charge sheet dt.
1.11.2017
and
summoning
order
dt.
18.1.2018 in crl. Case no.366/2018, crime
no.986/17 U/S 406, 506 IPC P.S. Kotwali,
District Sitapur in re; State Vs. Meera Mishra
and others in the interest of justice, pending in
the court of ld. Chief Judicial MagistrateSitapur."

2. According to the prosecution
story against the accused applicant, he has
issued a receipt, on receiving from the
informant of the case worth Rs.6,57,315/-
as part of sale consideration for the
proposed transfer of the house No.A-113,
Awas vikas Colony. He assured to
execute sale deed in favour of informant
within three months but neither the said
promise made by the applicant accused
was fulfilled nor the money paid on the
assurance of sale was repaid.

3. The grounds upon which the
relief to quash the charge-sheet as pleaded
in the application are:-

(i) false implication on the basis
of fabricated facts.

(ii) that the applicant no.1 made
request to the opposite party no.2 to get
execution of sale deed but the informant
made request some more time to pay the
rest of the sale consideration.

(iii) that on the request of
informant applicant no.1 given her time
and agreement was renewed on 21.4.2017
in between the parties.

4. On the aforesaid ground the
quashment of charge-sheet is sought
emphasizing upon there being a dispute of
civil
nature
therefore,
criminal
prosecution does not arise.

5. The applicant accused who is
slapped with offence under Section 406
and 506 IPC. Section 406 provides
punishment for criminal breach of trust
which is quoted hereunder:-

"406. Punishment for criminal
breach
of
trust.--Whoever
commits
criminal breach of trust shall be punished
with imprisonment of either description
for a term which may extend to three
years, or with fine, or with both.

6. Criminal breach of trust is
defined under Section 405 IPC which is
also for easy reference cited hereunder:-

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".

[Explanation 2[1].--A person,
being an employer 3[of an establishment
58 INDIAN LAW REPORTS ALLAHABAD SERIES
whether exempted under section 17 of the
Employees'
Provident
Funds
and
Miscellaneous Provisions Act, 1952 (19
of 1952), or not] who deducts the
employee's contribution from the wages
payable to the employee for credit to a
Provident Fund or Family Pension Fund
established by any law for the time being
in force, shall be deemed to have been
entrusted
with
the
amount
of
the
contribution so deducted by him and if he
makes default in the payment of such
contribution to the said Fund in violation
of the said law, shall be deemed to have
dishonestly used the amount of the said
contribution in violation of a direction of
law as aforesaid.] 4[Explanation 2.--A
person, being an employer, who deducts
the employees' contribution from the
wages payable to the employee for credit
to the Employees' State Insurance Fund
held and administered by the Employees'
State Insurance Corporation established
under the Employees' State Insurance Act,
1948 (34 of 1948), shall be deemed to
have been entrusted with the amount of
the contribution so deducted by him and if
he makes default in the payment of such
contribution to the said Fund in violation
of the said Act, shall be deemed to have
dishonestly used the amount of the said
contribution in violation of a direction of
law as aforesaid.]

7. By virtue of an agreement which
the applicant accused has admitted and
acknowledged in this application by
issuing a receipt made annexure in the
application, the payment by the informant
as part payment of sale consideration for
purchase of house which the applicant
accused proposed to sale. As such the
applicant accused was entrusted with the
aforesaid amount under assurance of
executing a sale deed of house No. A113, Awas vikas Colony.

8. Subsequent to the failure on the
part of accused-applicant to execute the
sale deed of his house in favour of the
informant. On failure to comply with the
obligation under his assurance he had to
repay the money entrusted with him by
the informant. The moment he denied to
repay the said amount on his failure he
had misappropriated the amount in his
benefit and the offence under Section 406
I.P.C. stands constituted because the
allegation if taken together are fulfilling
the ingredient rendered for consideration
of offence therein.

9. Section 506 provides punishment
for the offence of criminal intimidation,
which thus reads as under:-

506. Punishment for criminal
intimidation.--Whoever
commits,
the
offence of criminal intimidation shall be
punished with imprisonment of either
description for a term which may extend
to two years, or with fine, or with both; If
threat be to cause death or grievous hurt,
etc.--And if the threat be to cause death
or grievous hurt, or to cause the
destruction of any property by fire, or to
cause an offence punishable with death or
1[imprisonment
for
life],
or
with
imprisonment for a term which may
extend to seven years, or to impute,
unchastity to a woman, shall be punished
with imprisonment of either description
for a term which may extend to seven
years, or with fine, or with both."

10. The criminal intimidation is
defined in Section 503 IPC which is
quoted hereunder:-
3 All. Smt. Meera Misra & Ors. Vs. State of U.P.& Anr.
59

503. Criminal intimidation.--
Whoever threatens another with any
injury to his person, reputation or
property, or to the person or reputation of
any one in whom that person is interested,
with intent to cause alarm to that person,
or to cause that person to do any act
which he is not legally bound to do, or to
omit to do any act which that person is
legally entitled to do, as the means of
avoiding the execution of such threat,
commits
criminal
intimidation.
Explanation.--A threat to injure the
reputation of any deceased person in
whom the person threatened is interested,
is within this section. Illustration A, for
the purpose of inducing B to desist from
prosecuting a civil suit, threatens to burn
B's house. A is guilty of criminal
intimidation.

11. In the present case the
allegations are when on failure of
execution of sale deed by the applicant
accused the informant requests to repay
the money paid to him on account of
payment of sale consideration or to
execute, he denied to do anything and
threatened for life and limb of the
informant. As such from the very
allegations made in the FIR they fulfill
the ingredients under Section 503 of the
criminal intimidation for which Section
506 IPC is slapped upon the accused
applicants.

12. So far as the argument as to the
dispute being of civil nature is concerned,
it is different aspect of the fact wherein
execution of sale deed is denied giving
cause of action on the breach of
promise,but the same would civilly
actionable only when the promise is under
a legally enforceable agreement. In the
present matter the intention seems not to
execute the sale deed but to obtain money, as
the applicant did not enter into a lawful
written agreement for sale but given oral
assurance while receiving money by issuing
receipt of payment, he induced the informant
of the case to believe the proposal of
execution of sale deed. This is the aspect in
the case which makes the transaction and
conduct criminal in nature. Any finding as to
the truthness or falsity of allegation in the
FIR with this regard depends upon the
legally adduced evidence in trial. On having
been tried the allegation if proved for the
purpose of conviction but so far as the FIR
having allegations to the above effect are
fulfiling the ingredients of offence for which
the accused applicant are slapped. The
charge-sheet
along
with
the
material
collected by
the police prima
facie
supporting the allegation in the FIR cannot
be held a result of abuse of process or
suffering from any illegality wherein the
interference of the court for quashing may be
exercised using extraordinary power under
Section 482 Cr.P.C. The court has not to
embark on evidence at this stage to make
any finding as to the truthness or falsity.

13. In R. Kalyani Vs. Janak C.
Mehta and Ors. reported in (2009) 1
SCC 516, Hon'ble Supreme Court has
held in its para-9 as under:-

"9. Propositions of law which
emerge from the said decisions are :

(1) The High Court ordinarily
would
not
exercise
its
inherent
jurisdiction
to
quash
a
criminal
proceeding and, in particular, a First
Information Report unless the allegations
contained therein, even if given face value
and taken to be correct in their entirety,
disclosed no cognizable offence.
60 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) For the said purpose, the
Court,
save
and
except
in
very
exceptional circumstances, would not
look to any document relied upon by the
defence.

(3) Such a power should be
exercised
very
sparingly.
If
the
allegations made in the FIR disclose
commission of an offence, the court shall
not go beyond the same and pass an order
in favour of the accused to hold absence
of any mens rea or actus reus.

(4) If the allegation discloses a
civil dispute, the same by itself may not
be a ground to hold that the criminal
proceedings should not be allowed to
continue."

14. Hon'ble Apex court in the case
of Mahesh Chaudhary Vs. State of
Rajasthan & Anr. reported in (2009) 4
SCC 439 in its para nos.14 held as under:-

"It is also well settled that save
and
except
very
exceptional
circumstances, the court would not look
to any document relied upon by the
accused in support of his defence.
Although allegations contained in the
complaint petition may disclose a civil
dispute, the same by itself may not be a
ground
to
hold
that
the
criminal
proceedings should not be allowed to
continue. For the purpose of exercising
its jurisdiction, the superior courts are
also required to consider as to whether
the allegations made in the FIR or
Complaint Petition fulfill the ingredients
of the offences alleged against the
accused."

15. As such the prosecution is found
to be legitimate. Process issued wherein
for appearance are defied by the accused
applicants. The accused applicant instead
for putting appearance before the court
having participation to get adjudicated the
case on the basis of evidence adduced by
them in their defence have come into the
High Court invoking its jurisdiction under
Section 482 Cr.P.C. to quash the chargesheet, this is nothing but an effort to stifle
the lower court's proceeding.

16. The scope of interference and
exercise the extraordinary power of court
under Section 482 Cr.P.C. is explained in
para 23 and 24 of judgment of Hon'ble
Apex Court in the case of Inder Mohan
Goswami Vs. State of U.P. reported in
2012 SCC 1, which reads as under:-

"23. This court in a number of
cases has laid down the scope and ambit
of courts powers under section 482
Cr.P.C. Every High Court has inherent
power to act ex debito justitiae to do real
and
substantial
justice,
for
the
administration of which alone it exists, or
to prevent abuse of the process of the
court. Inherent power under section 482
Cr.P.C. can be exercised:

(i) to give effect to an order
under the Code;

(ii) to prevent abuse of the
process of court, and

(iii) to otherwise secure the
ends of justice.

24.
Inherent
powers
under
section 482 Cr.P.C. though wide have to
be exercised sparingly, carefully and with
great caution and only when such
exercise
is
justified
by
the
tests
specifically laid down in this section
itself. Authority of the court exists for the
advancement of justice. If any abuse of
the process leading to injustice is brought
to the notice of the court, then the Court
3 All. Sukhveer Singh & Ors. Vs. The State of U.P.& Anr.
61
would be justified in preventing injustice
by invoking inherent powers in absence of
specific provisions in the statute."

17. Hon'ble Apex Court has further
in State of Haryana & Ors. Vs. Bhajan
Lal & Ors. reported in 1992 Supp (1)
SCC
335
illustrated
certain
circumstances, wherein such power can
be used and now repeatedly the said
illustrations
are
relied
in
various
judgment of Hon'ble Apex Court and
those are treated as guidelines and reads
as under:-

"102.(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) where the allegations in the
First Information Report and other
materials, if any, accompanying the F.I.R.
do not disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the Code
except under an order of a Magistrate
within the purview of Section 155(2) of
the Code;

(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) where the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code;

(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;

(6) where there is an express
legal bar engrafted in any of the
provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted)
to
the
institution
and
continuance of the proceedings and/or
where there is a specific provision in the
Code or the concerned Act, providing
efficacious redress for the grievance of
the aggrieved party;

(7) where a criminal proceeding
is manifestly attended with mala fide
and/or
where
the
proceeding
is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him due
to private and personal grudge."

18. On the basis of above discussion
from the material placed on record of the
case no prima facie case is made out for
relief of quashing the charge-sheet and
summoning order against the accused,
hence, application is liable to be rejected.

Accordingly,
application
is
dismissed as rejected.
----------
(2019)11ILR A61

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE
THE HON'BLE VIKAS KUVAR SRIVASTAVA , J.

U/S 482/378/407 No. 7336 of 2019

Sukhveer Singh & Ors. ...Applicants
Versus
The State of U.P. & Anr. ...Opposite Parties