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Pawan Kumar Tyagi vs State Of U.P. Thru. S.S.P., Lko & … on 5 March, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

RESERVED ON 17.2.2020 DELIVERED ON 5.3.2020

A.F.R.

Court No. – 27

Case :- U/S 482/378/407 No. – 783 of 2019

Applicant :- Pawan Kumar Tyagi

Opposite Party :- State Of U.P. Thru. S.S.P., Lko Another

Counsel for Applicant :- Lakshmi Narain,R.D. Pathak,Shamsher Ali,V.K. Tripathi

Counsel for Opposite Party :- Govt. Advocate

Hon’ble Karunesh Singh Pawar,J.

1. The petition has been filed under Section 482 Criminal Procedure Code for quashing order dated 20.11.2017 passed in Complaint Case No.2664/2014 by Addl. Chief Judicial Magistrate, Court No.31, Lucknow and order dated 16.10.2018 passed by Addl. District Sessions Judge, Court No.9, Lucknow in Criminal revision No.966 of 2017

2. In the petition it has been pleaded that respondent No.2 Jagdish Saran had borrowed a sum of Rs.2 lacs from the petitioner on 20.11.2010, however, respondent did not repay the borrowed money. On a request being made by the petitioner to repay the money, respondent No.2 abused him and threatened to kill. The petitioner, in this context, submitted an application to the police of police station Talkatora, Lucknow and higher police authorities. However, finding that no action was being taken by the police, the petitioner filed a Complaint Case No.2664 of 2014 which has been rejected by the Court below vide order dated 20.11.2017.

Feeling aggrieved, the petitioner filed a Criminal Revision No.966 of 2017 before the Sessions Court, which too has been rejected vide a detailed order dated 16.10.2018 (Annexure-3).

3. Learned counsel for the petitioner has submitted that the learned Magistrate has ignored the averment contained in para 7 of his complaint dated 12.8.2014 filed before the Court below, whereby he had demonstrated that on a phone call, the respondent No.2 used abusive language, with threat to kill him, and rejected the complaint on the ground of the dispute being of civil nature. The respondent No.2 has committed a criminal breach of trust by not repaying the loan taken by him. In this context, learned counsel relied on a judgment of Hon’ble Supreme Court of India reported in (2003)7 SCC 399 Kailash Kumar Sanwatia versus State of Bihar and another.

Learned counsel has submitted that the learned Magistrate as well as the revision Court have committed a manifest error in treating the issue involved in the matter of civil nature.

4. Per contra, learned Additional Government Advocate Mr. S.N. Goswami appearing on behalf of the State has submitted that the orders passed by both the Courts below are justified order(s). The dispute is of civil nature between two private parties as it involves transaction of money.  He further submits that none of the ingredients of Section 405 or Section 409 are attracted in the present case.

5. I have heard learned counsel for the petitioner, learned Additional Government and perused the orders passed by the Courts below.

6. A perusal of the complaint dated 12.8.2014 filed under Sections 406, 504, 506 I.P.C., P.S. Tal Katora, district Lucknow shows that in paras 3 to 7 thereof, it has been stated by the petitioner that he gave loan of Rs.2 lacs on 20;11.2010 to the private respondent Jagdish Saran who assured to return it in a month. Thereafter, when the petitioner tried to recover his loan, the private respondent assured him on telephone that he will return the loan. Thereafter again, he assured that since he is about to get some money he would return the loan. Ultimately, the private respondent stopped coming to the petitioner’s home and also stopped talking on telephone. Lastly, when the petitioner contacted him from his (private respondent) other telephone number, the latter abused and threatened him.

Contrary to the averments made in the complaint , it has been contended that the money was entrusted to the private respondent who with a dishonest intention misappropriated it for his own use to the detriment of the petitioner. 

A further perusal of the averments made in the complaint reveals that the issue between the parties is a pure case of lending and borrowing, may be even a friendly loan. However, by no stretch of imagination, it can be an entrustment. 

7. In the case of Kailash Kumar Samwatia (supra), the appellant entrusted a sum of Rs.1,50,200/- to the accused at the instance of another accused/Head Cashier of the State Bank of India and for preparing the drafts. Later on, he was informed that the money handed over by him was missing from the cash counter. On this, the informant appellant filed a written report on the basis of which case was instituted and investigation undertaken. Hon’ble Supreme Court in para 9 has explained the basic requirements to bring home the accusations under Section 405 I.P.C. which reads as under :

“The basic requirement to bring home the accusations under section 405 are the requirements to prove con-jointly (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not; misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime.”

In Kailash Kumar Sanwatia’ case (supra), there was a loss of money, therefore, it was held that ingredients necessary to constitute criminal breach of trust were absent and the accused persons cannot be convicted under Section 409 I.P.C. Although, there was an entrustment, however, due to an intervening situation, the accused person whom the money was entrusted was incapacitated from carrying out the job and therefore, it was held that the provisions of Section 405 or 409 I.P.C. are not attracted.

8. In the present case, even the element of entrustment is absent and therefore, learned Magistrate vide order dated 20.11.2017 has rightly rejected the complaint on the ground that the matter is purely of civil nature. Likewise, the learned revisional court has also rejected the revision on the same ground of the matter of being civil nature and since no element of criminal breach of trust is borne out from the record, therefore, ingredients of Section 405 I.P.C. are absent. Learned Courts below have rightly held that the dispute is purely of civil nature.

9. I find that there is a growing tendency in the business circles to convert purely civil disputes into criminal cases so as to unnecessary harass the common man by giving a criminal colour to civil dispute(s). In this context, Hon’ble Supreme Court in the case reported in (2014)10 SCC 663 Binod Kumar and others versus State of Bihar and another while relying on Indian Oil Corporation versus NEPC India Limited (2006)6 SCC 736 held in paras 10 and 11 as under :

“10. In Indian Oil Corporation versus NEPC India Limited, this Court has summarized the principles relating to exercise of jurisdiction under Section 482 Cr.P.C. to quash complaints and criminal proceedings as under:-(SCC pp. 747-48, para 12)

“12.The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few- Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692, State of Haryana v. Bhajan Lal,1992 Supp (1) SCC 335; Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194, Central Bureau of Investigation v. Duncans Agro Industries Ltd (1996) 5 SCC 591; State of Bihar v. Rajendra Agrawalla (1996) 8 SCC 164, Rajesh Bajaj v. State NCT of Delhi,(1999) 3 SCC 259; Medchl Chemicals Pharma (P) Ltd. v. Biological E. Ltd(2000) 3 SCC 269 [pic]Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168, M. Krishnan v. Vijay Singh (2001) 8 SCC 645 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque( 2005) 1 SCC 122. The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out: (a) purely a civil wrong; or

(b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

“11. Referring to the growing tendency in business circles to convert purely civil disputes into criminal cases, in paragraphs (13) and (14) of the Indian Oil Corporation’s case (supra), it was held as under:-

“13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, [pic]leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sugar Suri v. State of U.P., this Court observed : (SCC p. 643. para 8)

”8….It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.’

14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.”

(Emphasised by me)

10. In view of the law laid down by Hon’ble Supreme Court and also considering the material on record, no offence under Section 406 I.P.C. is made out. The petitioner and the private respondent were known and familiar to each other and because of this, the petitioner gave a loan to the private respondent, therefore, the dispute is purely of civil nature. Hence, no offence under Section 406 is made out. Criminal proceedings cannot be invoked as a short cut for the purely civil remedies as the latter is more time consuming.

11. As regards the other allegation with regard to Sections 504, 506 I.P.C., there is a bald assertion in the complaint that the petitioner on being demanded his money was threatened, however, in support thereof, the statement under Sections 200 and 202 CrPC recorded by the trial court have not been filed with the present petition. It appears to be an effort on the part of the petitioner to settle civil dispute and claims which do not involve any criminal offence by applying pressure through criminal prosecution.

12. In view of the above, this Court does not find any fault with the orders impugned in the present petition. No case is made out to invoke the extraordinary writ jurisdiction under Section 482 CrPC.

13. The petition fails and is accordingly dismissed. The petitioner is at liberty to avail other remedies, provided under law, for recovery of his money.

(Karunesh Singh Pawar, J)

March 5, 2020

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