# Surendra Nath Singh v. D.D.U. Gorakhpur University and another

- **Citation:** (2002) 2 ILRA 341
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-04-03
- **Case number:** Criminal Misc. Application No.1385 of 2000
- **Bench:** B.K. Rathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surendra-nath-singh-v-d-d-u-gorakhpur-university-and-another-39861
- **Pages:** 3

## Headnote

Code of Criminal Procedure- section 482even if the allegations of the complaint
are accepted as gospel truth the offence
under sections 420 and 120-B I.P.C. is
not
made
out.
It
was
business
transaction and the real dispute between
the parties is regarding the payment of
the goods taken. The dispute is purely of
civil nature and the complaint has been
filed only with malafide intention to
harass the petitioners and to extract
unlawful gain from them. (Held in para
10).

The learned Magistrate has passed the
order without application of mind and
has not considered that no criminal
offence is made out. He should remain
very careful in summoning the accused
persons in future at lease in cases where
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
342
the accused persons are resident of far
off places.
Case Law preferred:
(1) 1998 (35) ACC 20 (SC)

## Text

2 All] Surendra Nath Singh Vs. D.D.U. Gorakhpur University and another
341
5. A teacher is defined under the
U.P. State Universities Act, 1973, as
follows:

"2.(19)"teacher of University" means
a teacher employed by the University for
imparting instruction and guiding or
conducting
research
either
in
the
University or in an Institute or in a
constituent college maintained by the
University."

6. The above definition in the Act
does not make any distinction between a
full time or part time teacher. Hence we
do not agree with the contention of the
petitioner that a part time teacher is
entitled to continue beyond the age of
retirement of 60 years. It will be strange
to say that while a full time teacher will
be retired at the age of 60 years a part
time teacher will continue as long as he
lives.

7. In our opinion, after crossing the
age of 60 year, a part time teacher can be
continued only on contract basis, if there
is no staff and if proper teacher is not
selected. This can not give any right to the
appointee to continue on the post after 60
years. Learned counsel for the petitioner
submitted that many part time teachers
have been continued even after 60 years.
In our opinion this was only on contract
basis and such a teacher has no right to
continue after the age of 60 years. Only
short time contract can be given after the
age of 60 years without having any right
to the post and such contract appointment
may be terminated at any time.

8. With these observations, the writ
petition is dismissed.

9. Let a copy of this judgement be
sent to the State Government and the
Chancellor of the University for necessary
action by the Registrar General of this
Court.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.04.2002

BEFORE
THE HON'BLE B.K. RATHI, J.

Criminal Misc. Application No.1385 of
2000

Nauratan Mal Daga and others

 ...Applicants
Versus
State of U.P. and another
...Opposite
 parties.

Counsel for the Petitioners:
Sri Shashi Kant Gupta

Counsel for the Opposite parties:
Sri Rajiv Gupta
A.G.A.

Code of Criminal Procedure- section 482even if the allegations of the complaint
are accepted as gospel truth the offence
under sections 420 and 120-B I.P.C. is
not
made
out.
It
was
business
transaction and the real dispute between
the parties is regarding the payment of
the goods taken. The dispute is purely of
civil nature and the complaint has been
filed only with malafide intention to
harass the petitioners and to extract
unlawful gain from them. (Held in para
10).

The learned Magistrate has passed the
order without application of mind and
has not considered that no criminal
offence is made out. He should remain
very careful in summoning the accused
persons in future at lease in cases where
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
342
the accused persons are resident of far
off places.
Case Law preferred:
(1) 1998 (35) ACC 20 (SC)

(Delivered by Hon'ble B.K. Rathi, J.)

1. This petition under section 482
Cr.P.C. has been filed to quash the
proceedings
of
complaint
case
no.
39/1994 Rajiv Gupta Versus Nauratan
and others under sections 420 and 120-B
I.P.C. pending in the Court of IVth
Additional Chief Judicial Magistrate,
Meerut and the orders passed in that case.

2. The complaint was filed by
opposite party no.2 which is Annexure-1
to the petition in which it was alleged that
he is the manager of M/s Mithlesh
Handloom Factory which supply cloths to
the dealers; that the revisionists who are
resident of Alipur Dwar in West Bengal
were known to the complainant from
before and used to visit the premises of
the complainant. On 11.3.1992 they
visited the premises of the complainant
and seen the cloths and booked order no.
491 and agreed to pay the price within
two months of the receipt of the goods;
that the goods were, therefore, supplied
by the complainant during the period from
21.3.1992 to 31.3.1992. However, the
revisionists did not pay the sale price
inspite of promises to pay; that, therefore,
it appears that the revisionists had
malafide intention from very beginning.

3. The learned Magistrate recorded
the statement under section 200 Cr.P.C. of
the complainant and summoned the
revisionists to stand trial under sections
420 and 120-B I.P.C. The revisionists
appeared and filed objections which were
rejected by the learned Magistrate on
30.6.1997.
Against
that
order,
the
revisionists preferred Criminal Revision
No. 214 of 1997 which was rejected on
6.1.2000 by the VIIth Addl. District
Judge,
Meerut
without
hearing
the
counsel for the petitioners. Therefore, this
petition has been preferred.

4. I have heard Sri S.K. Gupta,
learned counsel for the petitioners, Sri
Rajiv Gupta, learned counsel for opposite
party no.2 and the learned A.G.A. and
have perused the entire record.

5. It has been contended that the
dispute is purely of civil nature and the
courts below have erred in summoning
the petitioners on the above complaint.

6. I have already referred to the
allegations
made
in
the
complaint.
According to the complainant the cloth
was purchased and the price was agreed
to be paid afterward, but the same was not
paid. Therefore, even if the allegations of
the complaint are accepted as gospeltruth, the offence under sections 420 and
120-B I.P.C. is not made out. It was a
business transaction and the real dispute
between the parties is regarding the
payment of the goods taken. The dispute
is purely of civil nature and the complaint
has been filed only with malafide
intention to harass the petitioners and to
extract unlawful gain from them.

7. It has been argued by the learned
counsel for the opposite party that
objections, Annexure-4 to the petition
were filed before the Magistrate by the
petitioners; that however, they have not
alleged that they have not taken the
delivery of the goods alleged by the
complainant. This argument does not
appear to be correct. In the objections, it
has clearly been mentioned that the
2 All] Nauratan Mal Daga and others Vs. State of U.P. and another
343
petitioners
does
not
know
the
complainant, never met him and the
complainant even could not identify them.
Not
only
this,
they
have
further
mentioned that this fact can be verified by
putting them for test identification from
the complainant. Therefore, the allegation
of the petitioners is that there has been
absolutely no transaction between them
nor there was any occasion for the
transaction as alleged as they never met
the complainant.

8. As against this, the complainant
has alleged that the petitioners were
known to him from before. However, it is
not shown that they have even purchased
any article from the complainant prior to
the articles in question.

9. The sole intention to file the
complaint is to black mail the petitioners
who are resident of West Bengal. The
learned Magistrate has not considered the
facts in the right prospective and passed
summoning order without application of
mind and ignoring the principles laid
down in the various case by the Apex
Court. The Apex Court in the case of M/s
Pepsi Foods Ltd. Versus Special Judicial
Magistrate reported in 1998(35) A.C.C.,
20(S.C.) has observed that "Summoning
of an accused in a criminal case is a
serious matter. Criminal Law cannot be
set into motion as a matter of course. It is
not that the complainant has to bring only
two witnesses to support his allegations in
the complaint to have the Criminal law set
into motion. The order of the Magistrate
summoning the accused must reflect that
he has applied his mind to the facts of the
case and the law applicable thereto. He
has to examine the nature of allegations
made in the complaint and the evidence
both oral and documentary in support
thereof and would that be sufficient for
the complainant to succeed in bringing
charge home to the accused. It is not that
the Magistrate is a silent spectator at the
time of recording of preliminary evidence
before
summoning
of
the
accused.
Magistrate has to carefully scrutinize the
evidence brought on record and may even
himself put questions to the complainant
and his witnesses to elicit answers to find
out the truthfulness of the allegations or
otherwise and then examine if any offence
is prima facie committed by all or any of
the accused".

10. The learned Magistrate has
passed the order without application of
mind and has not considered that no
criminal offence is made out. He should
remain very careful in summoning the
accused persons in future at least in cases
where the accused persons are resident of
far off places.

11. The petition is, accordingly,
allowed and the above complaint and all
the orders passed thereon are quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD:08.04.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 42108 of 2001

Shafat Ullah

...Petitioner
Versus
Commissioner,
Varanasi
Division,
Varanasi and others
 ...Respondents

Counsel for the Petitioner:
Sri Yogesh Agarwal