HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 28
Case :- APPLICATION U/S 482 No. – 3231 of 2013
Applicant :- Ramkyas Singh
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- B.K. Mishra
Counsel for Opposite Party :- Govt. Advocate
Hon’ble Rajeev Misra,J.
Heard Mr. B.K. Mishra, learned counsel for applicant and learned A.G.A. for State.
This application under section 482 Cr. P. C. has been filed challenging summoning order dated 12.1.2011 passed by Additional Civil Judge (J.D.), Kasya, District Kushinagar, in Complaint Case No. 135 of 2010 (Tahsildar Singh Vs. Ram Kyas), under sections 406, 419, 420, 506 IPC, P.S. Turkpatti, District Kushinagar.
Present application came up for admission on 24.1.2013 and this Court passed the following interim order:-
“Heard learned counsel for the applicant and perused the impugned order.
Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A. He prays for and is allowed six weeks’ time to file counter affidavit.
Issue notice to opposite party no. 2, who may also file counter affidavit within the same period.
Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List after eight weeks before the appropriate Court.
Learned counsel for the applicant submitted that the prosecution of the applicant under Sections 406, 149, 420, 506 I.P.C. on the allegations that he has refused to repay the loan advanced by the respondent no. 2 to him, is nothing but abuse of the process of law and a dispute of purely civil nature between the parties has been illegally dragged before the criminal court at the behest of the opposite party no. 2 which is bad in law.
Submissions made by learned counsel for the applicant, prima facie, appear to be correct and he has made out a case for grant of interim relief.
Till the next date of listing, further proceedings of Complaint Case No. 135 of 2010 under Sections 406, 419, 420, 506 I.P.C., P.S. Kasya, district Kushinagar pending before the IInd A.C.J.(J.D.), Kasya, Kushinagar shall remain stayed.”
Office has submitted a report dated 26.2.;2013 stating therein that notice sent to opposite party No. 2 have been served personally. However, in spite of service of notice, no one has put in appearance on behalf of opposite party No. 2.
Learned counsel for the applicant submits that from the perusal of the complaint filed by opposite party No. 2, copy of which has been filed as Annexure 1 to the affidavit, it is explicitly clear that purely civil dispute has been dragged into criminal litigation. He further contends that the disputed amount can be recovered by filing suit for recovery of money. Thus a purely civil dispute has been dragged into criminal litigation, which is otherwise not maintainable in view of law laid down in the case of Inder Mohan Goswami Vs. State of Uttaranchal, 2017 (12) SCC 1.
Per contra, learned A.G.A. opposed the present application. He submits that the Magistrate has proceeded with the complaint on the strength of the allegations made in the complaint as well as in the statements of complainant and his witnesses recorded in terms of Sections 200 and 202 Cr. P. C. No illegality was committed by the Magistrate in passing impugned order. Consequently, application is liable to be dismissed.
Having heard learned counsel for applicants and learned A.G.A. for State the inescapable conclusion is that opposite party No. 2 has initiated present criminal proceedings for recovery of certain amount alleged to have been given by him to the applicant. It is well settled that where certain amount is recoverable, then a suit for recovery of money has to be filed. Even otherwise, the case in hand of the present applicant will not fall in the category of entrustment of certain property by opposite party No. 2 and therefore not punishable under Section 406 I.P.C.
In view of above, present application succeeds and is allowed.
Accordingly, impugned summoning order dated 12.1.2011 passed by Additional Civil Judge (J.D.), Kasya, District Kushinagar, in Complaint Case No. 135 of 2010 (Tahsildar Singh Vs. Ram Kyas), under sections 406, 419, 420, 506 IPC, P.S. Turkpatti, District Kushinagar and entire proceedings of aforesaid complaint case are, hereby, quashed.
Order Date :- 27.2.2020