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Yogendra Kumar @ Yogendra Singh … vs State Of U.P. And Another on 25 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 65

Case :- APPLICATION U/S 482 No. – 16986 of 2014

Applicant :- Yogendra Kumar @ Yogendra Singh Nahar

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- I.M. Khan,Punita Pandey

Counsel for Opposite Party :- Govt.Advocate,Jitendra Pal Singh,Sushil Kumar

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri Abdul Mazid, Advocate holding brief of Sri I.M. Khan, learned counsel for the applicant, Sri Jitendra Pal Singh, learned counsel for opposite party No.2, Sri Bhaiya Ghanshyam Singh, learned AGA for the State of U.P. and perused the record.

This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the proceeding of Criminal Case No.7725 of 2013 (State of U.P. vs. Yogendra Kumar), under Sections 406, 504 and 506 IPC, Police Station Kwarsi, District Aligarh, pending before Chief Judicial Magistrate, Aligarh.

The main argument of learned counsel for the applicant is that that accused-applicant has been falsely implicated in the present case by opposite party No.2 and no offence under Sections 406, 504 and 506 IPC are made out on the basis of evidence collected by the police during the investigation, hence the proceedings needs to be quashed.

Learned AGA as well as learned counsel for opposite party No.2 vehemently opposed the prayer for quashing the proceedings and has argued that even if offence under Section 406 IPC is not made out, offences of other Sections i.e. 504 and 506 IPC would be made out, but no such evidence has been shown by him on the basis of which, he is stating so.

I have gone through the FIR.

It is recorded in it that opposite party No.2 is partner of M/S C.L. Agrawal Sons, Bada Bazar, Aligarh, which deals with stationary and books. He had acquaintence with the accused-applicant due to the said business, who runs M/S Rajhans Stationary Mart Jalapa Devi Road, Kabir Chauk Varanasi. The opposite party No.2 often used to sell articles to the accused-applicant, payment of which used to be made sometimes, but full payment was never received. On 31.03.2012, opposite party No.2 came to know that the amount of Rs.5,25,927/- was running due to be received from the accused-applicant regarding which he made his demand on phone, then on 10.04.2012 at about 10:00 am the accused came to the house of opposite party No.2 and told that next consignment of the goods be sent and it was told by opposite party No.2 that first he should make the payment of the due amount till 31.03.2012. An assurance was given by the accused-applicant that Rs.5,25,927/- would be paid to him within two months in front of the witness Jawaharlal and Manoj Kumar which was believed by opposite party No.2. Thereafter, on 18.04.2012, the business place caught huge fire in which goods of crores of rupees were burnt and caused loss to the opposite party No.2. Thereafter again opposite party No.2 demanded the outstanding amount from the accused-applicant of Rs.5,25,927/-, but he did not make the payment of the same and it is also mentioned that opposite party No.2 abused and threatened him that the would be killed if he demands the said amount.

After investigation, charge-sheet has been submitted by the Investigating Officer after recording statements of as many as seven witnesses.

It is apparent from the contents of the FIR that there was business deal between the accused-applicant and opposite party No.2 and as a result of which an amount of Rs.5,25,927/- is said to be due on the accused-applicant which was demanded and which led to filing of the present FIR which has been investigated and pursuant to that charge-sheet has been submitted.

The offence under Section 406 I.P.C. will be held to be made out only with following ingredients stand satisfied:-

(a) Essential Ingredients- The Section requires-

(i) Entrusting any person with property or with any dominion over property;

(ii) The person entrusted (a) dishonestly misappropriating or converting to his own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation

(i) of any direction of law prescribing the mode in which such trust is to be discharged, or

(ii) of any legal contract made touching the discharge of such trust.

This Court relies upon the judgment Prabodh Mohan Tiwari and 3 others vs. State of U.P. and 3 others, 2019 LawSuit (All) 690,  paragraph no. 16 of which is as under:

“16. In Paramjeet Batra V. State of Uttarakhand, (2013) 11 SCC 673 (paragraph 12 of the report), the apex court has held that where a civil dispute between the parties has been given a cloak of a criminal case and parties have already adopted civil remedy then High Court must not hesitate in exercising its extraordinary power to quash th proceedings. Under the circumstances, as the respondent no. 4 along with his wife have already instituted a suit for specific performance of the agreement for sale and are pursuing that suit, the allegation that the petitioners had not refunded the money, despite demand, has no legs to stand. Hence, in our considered view, the offences punishable under Sections 406, 420 IPC are not made out. Once the principal sections are not applicable, charge of criminal conspiracy has no legs to stand. More so, because the sons of the petitioner nos. 1 and 2 were not directly privy to the agreement and their subsequent stand would only give a civil cause of action. Hence, in our view, lodging of the FIR is not at all warranted and the consequent investigation would amount to abuse of the process of law.”

This Court further relies upon para 12 of Paramjeet Batra v. State of Uttarakhand, (2013) 11 SCC 673,  which reads as under:

“12.While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.”

This Court further relies upon paras 12 and 14 of Mohd. Ibrahim v. State of Bihar, 2009 Law Suit (SC) 1114, which read as under:

“12. The sale deeds executed by the first appellant, clearly and obviously do not fall under the second and third categories of “false documents”. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of the complainant’s land (and that Accused 2 to 5 as the purchaser, witness, scribe and stamp vendor, colluded with the first accused in execution and registration of the said sale deeds) would bring the case under the first category. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner’s behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of “false documents”, it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.”

“14. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused. It is not the case of the complainant that any of the accused tried to deceive himeither by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code.”

It is apparent from the above position of law that entrustment of the property to the accused-applicant is essential ingredient and unless that is satisfied the offence under Section 406 IPC would not be made out.

In the present case, there is no such entrustment of the property/money/goods to the opposite party No.2 which was supposed to be returned by the applicant to opposite party No.2, rather it is evident that it was a business deal between the two, in which some money is outstanding against the accused-applicant, therefore, offence under Section 406 IPC will not be made out. It appears that this matter being of civil nature, has been given a cloak of criminal offence by the opposite party No.2 in order to put pressure on the accused-applicant. It is basically a civil matter for which the money recovery suit should be filed by opposite No.2 before the appropriate forum. As regards the offences under Sections 405 and 406 IPC, no such specific allegations appear to be there that these offences appear to have been added only in order to give serious colour to the occurrence. In view of the law cited above, this court is of the view that the proceedings in the present case need to be quashed against the accused-applicant and are accordingly quashed.

Application is accordingly allowed.

Order Date :- 25.9.2019

Ravi Kant

 

 

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