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Smt. Anjana Chaudhary And Another … vs State Of Uttarakhand And Others on 10 April, 2019

Reserved Judgment
Judgment reserved on 18.03.2019
Date of Delivery on 10.04.2019

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Misc. Application No. 527 of 2010

Smt. Anjana Chaudhary and Another …..Petitioners

Vs.

State of Uttarakhand and Others …Respondents

Mr. Akhil Kumar Sah, Advocate present for the petitioners.
Ms. Manisha Rana Singh, A.G.A. for the State of Uttarakhand.

Hon’ble Ravindra Maithani, J.

The instant petition under Section 482 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’)

has been filed for quashing the summoning order and proceeding

in the Criminal Case No.1086 of 2010, State Vs. Satender

Chaudhary and Another under Section 406, 506, 504 I.P.C.,

pending in the court of learned Chief Judicial Magistrate, Udham

Singh Nagar, District Udham Singh Nagar.

2. The factual matrix necessary for resolving the

controversy is within a very short compass. An F.I.R. was filed on

08.11.2009 at 6:05 p.m. at Police Station Rudrapur, District

Udham Singh Nagar by respondent no.3 under Section 406, 504

and 506 I.P.C. According to it, the petitioners took a loan of Rs.

7,35,000/- from the first informant (the respondent no.3 herein) on

different dates, on the assurance that they would return it, after a
2

while. But, the amount was not returned and when demanded, the

petitioners abused and threatened the respondent no.3 to her life.

Based on it, investigation was carried out and a chargesheet under

Section 406, 504 and 506 I.P.C. submitted to the Court of Chief

Judicial Magistrate, Udham Singh Nagar and the proceedings of

Criminal Case No.1086 of 2010 (hereinafter referred to as ‘the

case’) instituted.

3. In the case, cognizance was taken. The summoning

order and the proceedings of Criminal Case No.1086 of 2010 are

challenged in the instant petition.

4. What is interesting to notice is that respondent no.3

also filed a similar F.I.R. in District Rampur, which was lodged on

09.11.2009 at 11:30 a.m at Police Station Bilaspur, District

Rampur, Uttar Pradesh. It was lodged under Section 406 and 506

I.P.C. It was also investigated and a chargesheet under Section 406

and 506 I.P.C. was filed in the court of Chief Judicial Magistrate,

Rampur, in which cognizance had already been taken on

11.02.2010.

5. The respondent no.3 simultaneously had taken

recourse in two jurisdictions for the same cause. Notices were

issued in this matter. State has filed counter affidavit. Respondent

no.3 was served with the notice, according to the office report
3

dated 25.06.2010, 25.09.2010 and 30.03.2017. Respondent no.3

did not appear in this proceeding.

6. Heard learned counsel for the parties and perused the

records.

7. Learned counsel for the petitioners would argue that

continuance of the proceedings of the case is nothing but abuse of

process of law as the content of the F.I.R. in itself does not disclose

commission of any offence. If there is any cause, it is nothing but a

civil cause, which might give respondent no.3 to take recourse in

civil jurisdiction. No case under Section 406 I.P.C. is made out. It

is also argued that since in the matrimonial dispute between

respondent no.3 and her husband, the petitioners are with the

husband of respondent no.3, therefore, false F.I.R. has been

lodged. It is argued that the summoning order and the proceedings

of the case deserve to be quashed and the instant petition allowed.

8. Learned Additional Government Advocate fairly

concedes that offence under Section 406 I.P.C. is not made out

from the perusal of the F.I.R. She also very fairly conceded that

two F.I.R.s in two States for the same cause cannot be entertained.

9. Section 406 I.P.C. provides for punishment for

criminal breach of trust. Criminal breach of trust is defined under

Section 405 I.P.C., which, interalia, provides as hereunder:-
4

405. Criminal breach of trust.–Whoever, being in any manner
entrusted with property, or with any dominion over property,
dishonestly misappropriates or converts to his own use that property,
or dishonestly uses or disposes of that property in violation of any
direction of law prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied, which he has
made touching the discharge of such trust, or wilfully suffers any other
person so to do, commits “criminal breach of trust”.

…………………………………………………………………………
…………………………………………………………………………
……………………………………………………………………..”

10. According to the content of the F.I.R itself, the

petitioner took Rs.7,35,000/- on different dates as a loan from

respondent no.3. Out of the Rs.7,35,000/-, a sum of Rs.5,35,000/-

is stated to have been given by way of cheques and Rs.2 Lakhs, in

cash. The money is not stated to have been entrusted with the

petitioner. It is also not the case of respondent no.3 that the

petitioner had dishonest intention of not returning the amount since

inception. It is also not the case that the respondent no.3 was

cheated and dishonestly induced by the petitioner to deliver the

loan amount. A bare perusal of the F.I.R. reveals that it was purely

a personal transaction. What is stated may be a case of civil nature,

but in the instant case, there is lack of any criminality on the part

of the petitioner.

11. In the case of State of Haryana and Others Vs. Bhajan

Lal and Others, 1992 Supp (1) SCC 335, Hon’ble Supreme Court

has laid down the test for exercising the inherent power of the High

Court under section 482 of the Code. The Court, interalia, held as

hereunder:-

5

“102. In the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions relating to the exercise
of the extraordinary power under Article 226 or the inherent powers
under Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to prevent
abuse of the process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise, clearly
defined and sufficiently channelized and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.

(1) Where the allegations made in the first information report or 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 a
case against the accused.

(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint
and the evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable
offence but constitute only a non-cognizable offence, no investigation
is permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd
and inherently improbable on the basis of which no prudent person can
ever reach a just conclusion that there is sufficient ground for
proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a criminal
proceeding is instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision in the Code or
the concerned Act, providing efficacious redress for the grievance of
the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior
6

motive for wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”

12. In the case of Amit Kapoor v. Ramesh Chander,

(2012) 9 SCC 460, Hon’ble Supreme Court elaborated the

principles to be considered by the High Court while exercising the

jurisdiction under Section 482 of the Code of Criminal Procedure.

The Court, interalia, held as hereunder:-

“27.1 ………………………………………………..
27.2 The Court should apply the test as to whether the uncontroverted
allegations as made from the record of the case and the documents
submitted therewith prima facie establish the offence or not. If the
allegations are so patently absurd and inherently improbable that no
prudent person can ever reach such a conclusion and where the basic
ingredients of a criminal offence are not satisfied then the Court may
interfere.

27.3 ………………………………………………………….
…………………………………………………………………
27.8 Where the allegations made and as they appeared from the record
and documents annexed therewith to predominantly give rise and
constitute a “civil wrong” with no “element of criminality” and does
not satisfy the basic ingredients of a criminal offence, the court may be
justified in quashing the charge. Even in such cases, the court would
not embark upon the critical analysis of the evidence.”

…………………………………………………………………………
………………………………………..”

13. As stated hereinbefore, in the instant case, what the

F.I.R. reveals may be a civil wrong, but with no element of

criminality. It does not satisfy the basic ingredients of criminal

offence. Therefore, this Court is of the view that continuance of the

proceedings of the said case will definitely amount to abuse of

process of law, therefore, the summoning order and the entire

proceeding of the case deserve to be quashed.

7

14. Accordingly, the instant petition under Section 482 of

the Code is allowed. The summoning order dated 20.03.2010 and

the entire proceeding of Criminal Case No.1086 of 2010, State Vs.

Satender Chaudhary and Another under Section 406, 506, 504

I.P.C., pending in the court of learned Chief Judicial Magistrate,

Udham Singh Nagar, District Udham Singh Nagar is hereby

quashed.

(Ravindra Maithani, J.)
Ujjwal

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