# Sushil Kumar Budhiya / v. Sushil Kumar Singh & others

- **Citation:** (2008) 1 ILRA 232
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-02-12
- **Case number:** Criminal Misc. Application No. 840 of 2008
- **Bench:** Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-budhiya-v-sushil-kumar-singh-others-41020
- **Pages:** 6

## Headnote

Code of Criminal Procedure-Section-482Summoning order on application under
Section 156 (3)-offence under Section
406 I.P.C.-challenged on the ground for
same act of transaction proceeding
under
negotiable
instrument
already
going on-held-No bar.

Held: Para 12

But in a case like the present, where the
offence
could
be
both
under
the
Negotiable Instrument Act as well as for
certain provisions of the penal Code, I
see no bar for the prosecution of the
applicant for both the offences.
Case law discussed:
AIR 2000 SC 754, (1999) 8 SCC 686, AIR 1992
SC 604, (1999) 3 SCC 259, 1999 Cri LJ 1833,
AIR 1992 SC 604, AIR 2006 SUPREME COURT
2780, (2000) SCC 539, AIR 2005 SC 2436, AIR
2004 SUPREME COURT 4674, (200 1) 7 SCC
659

## Text

232 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
applicant is not entitled for bail, the
prayer for bail is refused.

8. Accordingly this application is
refused. Application rejected.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.02.2008

BEFORE
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Application No. 840 of 2008

Sushil Kumar Budhiya ...Applicant/Petitioner
Versus
Sushil Kumar Singh & others ...Respondents

Counsel for the Applicant/Petitioner:
Sri R.S. Chauhan
Sri Shree Kannan Kapoor

Counsel for the Respondents:
Sri Vinod Kumar Mishra
A.G.A.

Code of Criminal Procedure-Section-482Summoning order on application under
Section 156 (3)-offence under Section
406 I.P.C.-challenged on the ground for
same act of transaction proceeding
under
negotiable
instrument
already
going on-held-No bar.

Held: Para 12

But in a case like the present, where the
offence
could
be
both
under
the
Negotiable Instrument Act as well as for
certain provisions of the penal Code, I
see no bar for the prosecution of the
applicant for both the offences.
Case law discussed:
AIR 2000 SC 754, (1999) 8 SCC 686, AIR 1992
SC 604, (1999) 3 SCC 259, 1999 Cri LJ 1833,
AIR 1992 SC 604, AIR 2006 SUPREME COURT
2780, (2000) SCC 539, AIR 2005 SC 2436, AIR
2004 SUPREME COURT 4674, (200 1) 7 SCC
659
(Delivered by Hon'ble Amar Saran. J.)

1. Heard learned counsel for the
applicant and Shri Vinod Kumar Mishra,
learned Additional Government Advocate
representing the State.

2. An application under Section
156(3) of the Code of Criminal Procedure
(hereinafter referred to as the Code) dated
24.8.2002, which was treated as a
complaint after the statements of the
witnesses under Sections 200 and 202 of
the Code were recorded, the summoning
order dated 23.9.2002 and the order dated
13.0.2006 passed by the Additional Chief
Judicial Magistrate, Court No.1, Varanasi
in case No. 9051 of 2004 (Sushil Kumar
Vs.
Budhia
Roadways
and
others)
rejecting the objections and refusing to
discharge the applicant under Section 406
IPC have been challenged by means of
this application.

3. The allegations in the application
under Section 156(3) Cr.P.C. filed by the
complainant
Sushil
Kumar
Singh,
Manager of Harish Chandra Krishna
Vitran Kendra were that the complainant
was running a petrol pump, which used to
supply fuel to the firm of the applicant
namely Budhia Roadways Private Limited
and in a fraudulent manner the applicant
and the other directors of the said firm
had obtained fuel, whose outstanding bills
for payment rose to the tune of
Rs.3,25,000/- (rupees three lac twenty
five thousand) for which a cheque was
given, which was dishonoured on account
of the fact that there was no money in the
applicant's firm account. When the
complainant received information from
the bank on 27.5.2007, then on enquiry he
learnt that Om Prakash Budhia, Sushil
Budhia and the other directors had
1 All] Sushil Kumar Budhiya V. Sushil Kumar Singh and others
233
fraudulently
taken
fuel
from
the
complainant's firm, not made payment for
the same and had even closed their
business and vanished and that they had
fraudulently misappropriated the diesel
supplied by the complainant's firm.

4. Firstly, it was argued by learned
counsel for the applicant that essentially
the proceedings between the parties are
civil
in
nature
and
no
criminal
proceedings would lie on the said
allegations. In support of this contention
reliance has been placed on the decision
of the Apex Court in the case of G. Sagar
Suri and another Vs. State of U.P. and
others, AIR 2000 SC 754. Specifically
reliance has been placed on paragraphs 8
and 14 of the aforesaid judgement for the
proposition
that
the
entire
family
members of the firm ought not to have
been roped in and that there is misuse of
law by resorting to criminal process for
prosecuting the applicant especially when
another complaint under Section 138 of
the Negotiable Instrument Act had been
filed.

5. It may be noted that in the case of
G. Sagar Suri (Supra), where the
complainant was a finance company and
the applicants were automobile dealers it
had been found in the investigation that
the applicants were not the directors of
the accused's company, but they were
only the parents of the directors. This fact
had been admitted in the counter affidavit
filed by the complainant.

6. Furthermore, the Apex Court
expressed its disapproval of the fact that
although proceedings under Section 138
of the Negotiable Instrument Act were
pending, yet for some inexplicable reason
a separate case under Section 406/420
IPC had also been filed. Also there did
not
appear
to
be
any
direct
misrepresentation on the part of the
appellants in the case before the Apex
Court and there was no explanation why
the other directors were not proceeded
against and were left out or the
investigation was still pending against
them, and only the applicants had been
prosecuted. It was in the totality of those
circumstances, that the Apex Court
observed that criminal proceedings should
not be used as a lever for putting pressure
in a civil dispute between the parties and
quashed the same.

7. In Trishuns Chemical Industry Vs.
Rajesh Agarwal and others, (1999) 8 SCC
686, it has been held that merely because
an act involves civil liability, is not
sufficient to denude it of its criminal
outfit if the circumstances also suggest the
commission of a criminal offence. The
following lines from paragraphs 6 and 7
of the aforesaid case are relevant:

"6. Time and again this Court has
been pointing out that quashment of FIR
or a complaint in exercise of inherent
powers of the High Court should be
limited to very extreme exceptions (vide
State of Haryana v. Bhajan Lal, AIR 1992
SC 604 : 1992 Cri LJ 527) and Rajesh
Bajaj v. State NCT of Delhi (1999) 3 SCC
259: (1999 AIR SCW 881 : AIR 1999 SC
1216: 1999 Cri LJ 1833)). In the last
referred case this Court also pointed out
that merely because an act has a civil
profile is not sufficient to denude it of its
criminal outfit. We quote the following
observations (para 10 of AIR, Cri LJ) :
"It may be that the facts narrated in
the present complaint would as well
reveal a commercial transaction or
money transaction. But that is hardly a
234 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
reason for holding that the offence of
cheating would elude from such a
transaction. In fact, many a cheatings
were
committed
in
the
course
of
commercial
and
also
money
transactions."
7. We are unable to appreciate the
reasoning that the provision incorporated
in the agreement for referring the disputes
to arbitration is an effective substitute for
a criminal prosecution when the disputed
act is an offence. Arbitration is a remedy
for affording reliefs to the party affected
by breach of the agreement but the
arbitrator cannot conduct a trial of any
act which amounted to an offence albeit
the same act may be connected with the
discharge of any function under the
agreement. Hence, those are not good
reasons for the High Court to axe down
the complaint at the threshold itself. The
investigating agency should have had the
freedom to go into the whole gamut of the
allegations and to reach a conclusion of
its own. Pre-emption of such investigation
would be justified only in very extreme
cases as indicated in State of Haryana v.
Bhajaj Lal (AIR 1992 SC 604) (supra)."

8. Furthermore, in M/s Indian Oil
Corporation Vs. M/s NEPC India Ltd. and
others, AIR 2006 SUPREME COURT
2780 the case of G. Sagar Suri was
considered and the tendency to utilize
criminal prosecution for settling civil
disputes was deprecated. However, the
proceedings were allowed to continue and
it was observed in the said case that an
offence under Section 420 IPC as defined
under section 415 IPC appeared to have
been made out as the NEPC company had
removed the engines and other parts of
the hypothecated aircrafts, although no
case of criminal breach of trust was made
out.
9. It was also clarified in the case of
Indian Oil Corporation (Supra) that in the
event, the prosecution is found to be
malicious, the remedy is available to the
accused
to
initiate
proceedings
for
compensation under Section 250 of the
Code.

10. It should be noted that it has not
been clarified anywhere in the original
application or in the supplementary
affidavit filed by the applicant whether
the prosecution against the applicant
under the Negotiable Instruments Act is
still pending and whether the applicant
and other co-accused are co-operating
with the same.

11. It is also the intent of Section
220 of the Code, wherein if one series of
act connected together as to form the
same
transaction,
constitutes
more
offences than one, an accused can be
charged and tried even in one trial for
several such offences. This section has of
course been made subject to the limitation
contained under Section 71 of the IPC,
that where anything which is an offence is
made up of parts, any of which parts is
itself an offence, the offender shall not be
punished with the punishment for more
than one of such offences, unless it be so
expressly provided. The illustration to the
section is self-expanatory. It reads thus:

"llustration: A gives Z fifty strokes
with a stick. Here accused may have
committed the offence of voluntarily
causing hurt to victim by the whole
beating and also by each of the blows
which make up the whole beating, but he
would be liable for only one punishment
for the whole beating."
1 All] Sushil Kumar Budhiya V. Sushil Kumar Singh and others
235
12. But in a case like the present,
where the offence could be both under the
Negotiable Instrument Act as well as for
certain provisions of the penal Code, I see
no bar for the prosecution of the applicant
for both the offences.

13. In Prudential Capital Market Vs.
State of Bihar (2000) SCC 539, it has
been clarified that simply because the
prosecution was pending under Section 45
Q-A and 58-E of the Reserve Bank of
India Act, the prosecution under Section
138 of the Negotiable Instrument Act and
Section 420 IPC could not be barred on
that score.

14. Another contention which was
stressed by the learned counsel for the
applicant was that the applicant was a
chartered accountant, who was working in
Mumbai and he had no concern with the
instant firm as he was only a son of one of
the accused. The applicant has even filed
a
copy
of
the
Memorandum
of
Association and Articles of Association of
Budhia Roadways Private Limited and in
paragraph 15 I) a. of the Grounds in his
application he has stated that a certificate
had been granted by Mr. V. Sundaram,
the Company Secretary to the effect that
"applicant is not holding any share or
structure in the accused company".

15. I think these are matters, which
can properly be appreciated at the
appropriate stage during the trial and
cannot be allowed to be raised in an
application under Section 482 of the Code
by means of such averments in an
application or affidavit.

16. In S. V. Muzumdar Vs. Gujarat
State Fertilizer Company, AIR 2005 SC
2436, it has been observed by the Apex
Court that whether a particular accused
(who was lawyer in that case) was
incharge of the business and liable to be
proceeded with in view of Section 141 of
the Negotiable Instrument Act was a
matter which could only be adjudicated
during trial and an opinion on the matter
could not be formed at the initial stage.

17. There also appears to be undue
unexplained delay in the applicant's
approaching this Court disentitling him
from any relief also on account of laches
as admittedly the initial application under
Section 156(3) was moved on 24.8.2002,
the summoning order was passed on
23.9.2002
by
the
Additional
Chief
Judicial Magistrate, Varanasi. Even the
application
for
setting
aside
the
summoning order was rejected by the
ACJM as far as back on 13.9.2006 and the
applicant appears to have been sleeping
over the matter thereafter.

18. Significantly, in the said order
dated 13.9.2006, it has been observed that
the other principal accused Om Prakash
Budhia, -the father of the applicant has
still not appeared and the other accused
Pradeep Budhia has died in the meantime.
It was also noted in the said order that the
application
has
been
moved
for
challenging the summoning order dated
23.9.2002. I think that in view of the
decision of the Apex Court in Adalat
Prasad Vs Roop Lal Jindal, AIR 2004
SUPREME
COURT
4674
such
a
summoning order could not have been
challenged before the learned Magistrate.

19. However, so far as the
observations in the order dated 13.9.2006
are concerned that on perusal of the
record it appears that when the learned
Magistrate
passed
the
order
dated
236 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
23.9.2002 summoning the applicant and
other accused under Section 406 IPC,
only the statement of Sushil Kumar
Singh, the complainant appeared to have
been recorded and that the statements of
the other witnesses Rajesh Kumar and
Sunil Kumar Singh were not recorded
under Section 202 of the Code, but the
same appear to have been recorded in
Complaint case No. 1564 of 2002 (Sushil
Kumar Singh Vs. Budhia Roadways),
under Section 138 of the Negotiable
Instrument Act. In my view, there is no
legal bar in summoning the accused even
after recording the statement of the
complainant under Section 200 of the
Code and it is only incumbent in a case,
which is exclusively triable by a court of
sessions that evidence of the complainant
and the witnesses (present if any) be also
examined on oath before passing the
summoning order, but the present is not
such a case.

20. One further submission has been
raised by the learned counsel for the
applicant that no offence under Section
406 I PC appears to be disclosed as the
property (fuel) had been sold to the
applicant and other accused and it had not
been entrusted to them for a particular
purpose. There may be some merit in this
contention, but criminal proceedings can
only be quashed if no offence whatsoever
is disclosed. In S.M. Datta v. State of
Gujarat, (200 1) 7 SCC 659, at page 666
it has been observed that the practice of
the High Court in scuttling criminal
proceedings at the initial stage was
improper, and that the High Court must
not interfere except in the rarest cases
where the same amounted to abuse of the
process of law. Only broad allegations
were to be seen as to whether any offence
was disclosed and the FIR was not to be
looked at with mathematical exactitude at
this stage as to whether the offence
alleged is made out. Even if some other
offence is made out, different from what
has been alleged the charge sheet can not
be quashed. The relevant passage in page
666 in S.M. Datta reads as follows:

"Criminal
proceedings,
in
the
normal course of events ought not to be
scuttled at the initial stage, unless the
same amounts to an abuse of the process
of law. In the normal course of events
thus, quashing of a complaint should
rather be an exception and a rarity than
an ordinary rule. The genuineness of the
averments in the FIR cannot possibly be
gone into and the document shall have to
be read as a whole so as to decipher the
intent of the maker thereof. It is not a
document which requires decision with
exactitude, neither is it a document which
requires mathematical accuracy and
nicety, but the same should be able to
communicate or indicative of disclosure
of an offence broadly and in the event the
said test stands satisfied, the question
relating to the quashing of a complaint
would not arise."(Emphasis added)

However it will be open for the trial court
to consider when framing the charges or
at any other appropriate stage under
Section 215 of the Code as to whether a
charge ought to be framed against the
accused persons under section 406 or 420
IPC because the allegations were that the
accused persons continued to take fuel
from the petrol pump of the complainant
and the bills ran up to 3,25,000/-,
thereafter the firm of the accused persons
and the accused persons themselves
vanished
without
making
the
due
payments and even the cheques issued by
them were dishonoured. Prima facie on
1 All] Chet Ram Gangwal V. State of U.P. and others
237
these allegations it could at least be said
that there was an intention to cheat from
the very inception as defined under
section 415 IPC although perhaps strictly
a case under section 406 IPC may not be
disclosed. If the Magistrate is so satisfied
upon
exercise
of
his
independent
discretion after considering the materials
and documents of this case, he may
refrain from framing a charge under
Section 406 IPC or by substituting it with
a charge under section 420 IPC if he
deems appropriate at the proper stage.

21. In view of what has been
indicated herein above, I find no ground
for quashing the criminal proceedings
against the applicant and the application is
accordingly rejected.

22. However, in the circumstances
of the case, it is provided that if the
applicant
appears
before
the
court
concerned and applies for bail, his prayer
for bail within a month, the application
shall be considered expeditiously in
accordance with law.

23. The observations, made herein
above, were only for the purpose of
disposal of this application and should not
be taken into account by the Magistrate
concerned
while
deciding
the
bail
application or the trial. Application
disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Review Application No. 294786
of 2007
In
Civil Misc. Writ Petition No. 55022 of 2007

Chet Ram Gangwar

...Petitioner
Versus

State of U.P. and others ...Respondents

Counsel for the petitioner:
Sri.Dr. H.N. Tripathi

Counsel for the Respondents:
S.C.

U.P. Intermediate Education Act 1921Chapter II Regulation -I Appendix-ALecturer in Hindi-B.A. with Sanskrit-a
person having Sahitya Ratna Degree
from Hindi Sahitya Sammelan can be
treated equivalent degree/eligible for
promotion?-Question referred to larger
Bench.

Held: Para 12

Let record of this writ petition be placed
before
Hon'ble
Chief
Justice
for
considering the constitution of the larger
Bench for consideration of the following
questions.

(i) Whether the judgment of learned
Single Judge in the case of Purushottam
Das Agarwal Vs. District Inspector of
Schools, Allahabad and another, reported
in (1999) 2 UPLBEC 1609 holding that a
candidate
not
possessing
B.A.
with
Sanskrit but possessing two years course
of Sahitya Ratna from Hindi Sahitya
Sammelan is eligible for promotion as