# Sumit Rajendra Bhalotia v. State of U.P. and another

- **Citation:** (2011) 3 ILRA 1175
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-26
- **Case number:** Criminal Misc. Application No 1241 of 2010
- **Bench:** Ashok Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sumit-rajendra-bhalotia-v-state-of-u-p-and-another-42057
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 482summoning order-offence U/S 420/406
IPC-from bare perusal of complaint-clear
case of breach of contract-pure civil
nature dispute-all transaction made at
Mumbai-no
part
of
transaction
at
Allahabad-Magistrate
passed
Summoning
order
on
mechanical
manner-Court
expressed
its
great
displeasure-regarding conduct of Judicial
Officer-Summoning order quashed.

Held: Para 12

I have gone through all the three case
laws mentioned above. In the instant
case prima facie there is nothing which
may indicate that the applicant has any
dishonest intention when he entered into
the contract with opposite party no. 2.
Therefore, summoning of the applicant
under Section 420 I.P.C. cannot be
allowed to sustain. From the perusal of
the complaint itself it is evident that it is
a simple case of breach of contract. This
contract had taken place at Mumbai. No
part of it has been executed in the city of
Allahabad. From the entire records it is
1176 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
evident that opposite party no. 2 has
misused the process of law. The learned
Magistrate has, in a mechanical and
routine
manner,
summoned
the
applicant which shows that he did not
care even to read the complaint in a
proper manner. Such type of conduct
from a judicial officer is not desirable.
Case law discussed:
2009 (1) SCC (Cri.) 996; 2009 (2) SCC (Cri)
941

## Text

3 All] Sumit Rajendra Bhalotia V. State of U.P. and another
1175

8.

The
amendment
is
not
retrospective in nature. The amended
provision of Section 140(2) as such would
not be applicable to an accident which had
taken place earlier to the amendment i.e.
14.8.94.

9. In Divisional Manager, United
India Insurance Co. Ltd. Vs. Nagendra
Sethi and others 2010(3) T.A.C. 879
(Orissa) his Lordship of the Orissa High
Court
while
considering
a
similar
controversy held that where an accident
had taken place on 14.8.94 i.e. prior to the
amendment,
the
amended
provisions
enforced with effect from 14.11.94 would
not be applicable as they are not
retrospective in nature.

10. Even the Apex Court in State of
Punjab & others Vs. Bhajan Kaur and
others AIR 2008 SC 2276 laid down that
amendment to Section 140 of the Act vide
Act No.54 of 1994 w.e.f. 14.11.94 is not
retrospective and would not be applicable
to accidents prior to said date.

11. In view of the aforesaid facts and
circumstances, I am of the opinion that the
Tribunal grossly erred in law in awarding
interim compensation of Rs.25,000/- in
case of permanent injury for an accident
which took place on 14.8.94. On the
relevant date on account of no fault
liability interim compensation to the extent
of Rs.12,500/- alone was admissible.

12.. In view of above, the appeal is
allowed. Interim award dated 14.2.96 is
modified and is confined to Rs.12,500/-
with further direction that the balance
amount of Rs.12,500/- which has been
deposited pursuant to the interim order of
this court dated 21.5.96 shall continue to
remain deposited and would abide by the
final decision of the claim petition.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2011

BEFORE
THE HON'BLE ASHOK SRIVASTAVA,J.

Criminal Misc. Application No 1241 of 2010

Sumit Rajendra Bhalotia
 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Anjani Kumar Mishra

Counsel for the Respondents:
Sri Umesh Kumar Dwivedi
A.G.A.

Code of Criminal Procedure-Section 482summoning order-offence U/S 420/406
IPC-from bare perusal of complaint-clear
case of breach of contract-pure civil
nature dispute-all transaction made at
Mumbai-no
part
of
transaction
at
Allahabad-Magistrate
passed
Summoning
order
on
mechanical
manner-Court
expressed
its
great
displeasure-regarding conduct of Judicial
Officer-Summoning order quashed.

Held: Para 12

I have gone through all the three case
laws mentioned above. In the instant
case prima facie there is nothing which
may indicate that the applicant has any
dishonest intention when he entered into
the contract with opposite party no. 2.
Therefore, summoning of the applicant
under Section 420 I.P.C. cannot be
allowed to sustain. From the perusal of
the complaint itself it is evident that it is
a simple case of breach of contract. This
contract had taken place at Mumbai. No
part of it has been executed in the city of
Allahabad. From the entire records it is
1176 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
evident that opposite party no. 2 has
misused the process of law. The learned
Magistrate has, in a mechanical and
routine
manner,
summoned
the
applicant which shows that he did not
care even to read the complaint in a
proper manner. Such type of conduct
from a judicial officer is not desirable.
Case law discussed:
2009 (1) SCC (Cri.) 996; 2009 (2) SCC (Cri)
941

(Delivered by Hon'ble Ashok Srivastava,J.)

1. Through this petition which has
been filed by the applicant under Section
482 Cr.P.C., he has prayed that the order
dated
22.8.2009
passed
by
learned
Additional Chief Judicial Magistrate (1),
Court No. 2, Allahabad in Criminal Case
No. 3305/09 ( Prem Chandra Vs. Sumit
Bhalotia) be quashed and set aside.

2. Brief facts of this case are that
opposite party no. 2, Premchandra Dubey,
a resident of Allahabad City filed a
complaint case under Sections 420/406
I.P.C. in the court of learned Magistrate
concerned on 8.7.2009. According to this
complaint, opposite party no. 2 is a
building painter and is doing the work of
painting in Mumbai. He has got an office
there in the name of Shivam Construction.
Keeping in view his business prospects
and derivable income he decided to leave
Bombay and start his business of building
painting in the city of Allahabad.
Therefore, he came back to Allahabad and
left his business at Mumbai to be
managed by his brother Manik Chandra.
The applicant is a resident of Mumbai. As
per allegations of the complaint, the
applicant had renovated his residential
building at Mumbai and made certain
additional constructions in it. He wanted
his renovated building to be painted and
for the purpose he went to the office of
O.P. no. 2 at Mumbai where he met the
brother of the complainant and informed
him regarding his requirements. The
brother of opposite party no. 2 told the
applicant that he (the applicant) should
contact his brother who at that time was at
Allahabad. It has been alleged in the
complaint that the applicant made a
telephonic call to respondent no. 2. Since
it was a big contract, the opposite party
no. 2 told the applicant that he will come
to Mumbai and after inspecting the
building he will quote the rates and the
probable expenditure. The opposite party
no.
2
had informed the applicant
regarding the rate etc. and the labour
charges. Thereafter the opposite party no.
2 went to Mumbai and contacted the
applicant on 8.9.2007 and handed him
over the quotations which were accepted
by the applicant. The entire painting work
was completed by opposite party no. 2 in
the month of April, 2008. Thereafter he
submitted a bill to the applicant which
was about Rs. 15,56,320/-. The advances
already made were to be adjusted in this
amount. Thereafter the opposite party no.
2 came back to Allahabad with the belief
that the applicant will pay the dues within
a reasonable time. When the payment was
delayed, the opposite party no. 2 went to
Mumbai and requested the applicant for
payment but no payment was made.
Thereafter, the opposite party no. 2 came
back to Allahabad and sent a legal notice
to the applicant through his counsel for
payment of dues. In para 18 of his
complaint under Section 200 Cr.P.C., the
opposite party no. 2 has said that the
applicant has cheated him, committed a
breach of contract and and also committed
the offence of breach of trust. The learned
Magistrate
examined
the
complainant/opposite party no. 2 under
Section 200 Cr.P.C. and also examined
3 All] Sumit Rajendra Bhalotia V. State of U.P. and another
1177
the
witnesses
produced
by
the
complainant/opposite party no. 2 before
him under Section 202 Cr.P.C. Thereafter
through the impugned order, the learned
Magistrate summoned the applicant under
Section 420/406 I.P.C. Feeling aggrieved
by this order and the proceedings pending
before his Court, the applicant has moved
this petition with a prayer that the order
impugned and the entire proceedings of
the criminal case be quashed.

3. I have heard learned counsel for
the applicant, learned counsel for the
opposite party no. 2 as well as learned
A.G.A. and also perused records and the
the rulings filed from both the sides.

4. It has been contended from the
side of the applicant that the criminal case
filed by the opposite party no. 2 is based
on false and fabricated facts; that keeping
in view the allegations levelled in the
complaint, at the most it may be a case of
breach of contract of civil nature and the
learned
Magistrate
has
erred
in
summoning the applicant under Section
406/420 I.P.C. It has further been
contended that all the acts such as
execution of work and advances paid to
opposite party no. 2 etc. had taken place
at Mumbai and, therefore, the court at
Allahabad has no territorial jurisdiction.

5. On the other hand it has been
submitted from the side of opposite party
no. 2 that the order was placed by the
applicant through telephone and the order
was received in the city of Allahabad and
from the very beginning the intention of
the applicant was dishonest and he wanted
to deceive the opposite party no. 2 and he
had already made up his mind that he will
not pay the dues and other charges to
opposite party no. 2.

6. In the instant case the learned
Magistrate had summoned the applicant
under Section 406/420 I.P.C.

7. The definition of criminal breach
of trust has been given under Section 405
I.P.C. If we analyse this definition it will
be clear that the first ingredient of the
section is "entrusting with property, or
with any dominion over property". This
ingredient is an important ingredient of
the offence of criminal breach of trust and
from the records it is evident that in the
instant case this ingredient is missing all
together. Therefore, summoning of the
applicant under Section 406 I.P.C. cannot
be sustained.

8. Now let us examine the ingredient
of Section 415 I.P.C. in which the offence
of cheating has been defined. Section 415
I.P.C. is as follows :

"415. 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"."

9. In this connection, my attention
has been drawn towards the case law
2009 (1) SCC (Cri.) 996 ( V.Y. Jose and
another Vs. State of Gujarat and
another). In para 12 the Supreme Court
has said as follows :
1178 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

"12. For the purpose of constituting
an offence of cheating, the complainant is
required to show that the accused had
fraudulent or doshonest intention at the
time of making promise or representation.
Even in a case where allegations are made
in regard to failure on the part of the
accused to keep his promise, in absence of
a culpable intention at the time of making
initial promise being absent, no offence
under Section 420 of the Indian Penal
Code can be said to have been made out."

10. Similar opinion has been
expressed by the Supreme Court in 2009
(2) SCC (Cri.) 941 ( S.V.L. Murthy and
others
Vs.
State
Rep.
By
CBI,
Hyderabad and others).

11. From the side of opposite party
no.
2
the
judgment
and
order
dated27.10.2010 passed by this Court in
Criminal Misc. Application No. 33856 of
2010 ( Anand Kumar Porwal Vs. State of
U.P. and another) has been relied upon.

12. I have gone through all the three
case laws mentioned above. In the instant
case prima facie there is nothing which
may indicate that the applicant has any
dishonest intention when he entered into
the contract with opposite party no. 2.
Therefore, summoning of the applicant
under Section 420 I.P.C. cannot be
allowed to sustain. From the perusal of
the complaint itself it is evident that it is a
simple case of breach of contract. This
contract had taken place at Mumbai. No
part of it has been executed in the city of
Allahabad. From the entire records it is
evident that opposite party no. 2 has
misused the process of law. The learned
Magistrate has, in a mechanical and
routine manner, summoned the applicant
which shows that he did not care even to
read the complaint in a proper manner.
Such type of conduct from a judicial
officer is not desirable.

13. On the basis of the above
discussion, I am of the view that there is
force in the petition and it must succeed.

14. The petition under Section 482
Cr.P.C. is allowed. The entire proceedings
of Criminal Case No. 3305/09 (Prem
Chandra Vs. Sumit Bhalotia) including
the summoning order dated 22.8.2009 are
quashed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.10.20113

BEFORE
THE HON'BLE PANKAJ MITHAL,J.

First Appeal From Order No. - 1635 D of 2011

New India Assuarance Company

...Appellants
Versus
Mahendra Pratap Singh and others

 ...Respondents

Counsel for the Petitioner:
Sri Manish Kumar Nigam

Motor Vehicle Act 1988-Section 170liability to pay compensation-a beneficiary
legislation-even if breath of policy-insurer
to pay entire amount with liberty to
recover the same from vehicle owner-still
hold good field-as no decision on reference
taken as yet by Apex Court-direction of
tribunal warrants no interference.

Held:Para 12

The submission of the learned counsel for
the appellant that the validity of such a
direction upon the Insurance Company to
pay and recover has been referred to a
larger Bench by the Supreme Court vide