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Allahabad High Court · body

2020 DIGILAW 1228 (ALL)

Bajrangi Lal Gupta v. State of U. P.

2020-10-15

RAVI NATH TILHARI

body2020
JUDGMENT : 1. Heard Shri Pramod Kumar Maurya, Advocate holding brief of Shri Shitlesh Pandey, learned counsel for the applicant, Shri Pankaj Saxena, learned A.G.A. for the State. 2. The applicant has challenged the order dated 09.01.2020, passed by the learned Chief Judicial Magistrate, Mau in Criminal Case No. 5864 of 2018 (Bajrangi Lal Gupta verus State of U.P. and another) by which his complaint was rejected. He has also challenged the order dated 04.08.2020 passed by learned Session Judge, Mau in Criminal Revision No. 13 of 2020 (Computerized No. CNR No. UPMA01-000657-2020 by which his revision was also dismissed. 3. The applicant stating himself to be sister's son of Maina Devi (Mausi) filed the complaint case that opposite party no. 2 (Bhanja) of Maina Devi fraudulently got executed a registered sale deed dated 06.04.2017 with respect to Gata No. 513 M area 14 kadi situated in Village Korauli, Tehsil Ghosi District, Mau from Maina Devi without making payment of any sale consideration, whereas the applicant had been looking after his Mausi. 4. The applicant's application under Section 156(3) Cr.P.C. was rejected by Magistrate, against which, he filed Criminal Revision No. 198 of 2018 and after decision, therein the complaint was filed for taking action for the offences under Sections 419, 420, 467, 468, 471, 472, 504 and 506 I.P.C. 5. The statement of the applicant was recorded under Section 200 Cr.P.C. and the statement of P.W.-1 Shankar Prasad and P.W.-2 Lalji were recorded under Section 202 Cr.P.C. 6. The learned Magistrate by order dated 04.01.2020 rejected the complaint and the applicant's revision was also rejected on 04.08.2020 as aforesaid. 7. The Magistrate rejected the compliant on the grounds that the dispute was predominantly of civil nature. The remedy by way of civil suit was available. The applicant had not stated if his Mausi was alive or not and that no prima facie case for summoning was made out. 8. Learned counsel for the applicant submitted that prima facie, coginzable offence for summoning was made out against the opposite party no. 2 and the Magistrate rejected the complaint under Section 203 Cr.P.C. in cursory manner. The revisional court also did not consider this aspect of the matter and illegally dismissed the revision. 9. Learned A.G.A. submits that the orders under challenge do not suffer from any illegality as the dispute was of civil nature. 10. 2 and the Magistrate rejected the complaint under Section 203 Cr.P.C. in cursory manner. The revisional court also did not consider this aspect of the matter and illegally dismissed the revision. 9. Learned A.G.A. submits that the orders under challenge do not suffer from any illegality as the dispute was of civil nature. 10. I have considered the submissions advanced by learned counsel for the applicant and learned A.G.A. for the State and perused the material on record. 11. A perusal of the complaint shows that the dispute is predominantly a civil dispute regarding execution of sale deed by the applicant's Mausi in favour of opposite party no. 2. 12. As per the own case of the applicant Maina Devi was recorded tenure holder. If the sale consideration passed to the transferor or not, can be considered in the suit said to be pending, in the statement of the applicant/complainant recorded under Section 200 Cr.P.C., before the court of Civil Judge (Junior Division). 13. In Mohd Ibrahim versus State of Bihar (2009) 8 SCC 751 , it has been held by the Hon'ble Apex Court that there is growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that the proceedings before it are not used for settling scores or to pressurize parties to settle the civil dispute. 14. In Medmeme, LLC and others versus Ihorse BPO Solutions Pvt. Ltd. (2018) 13 SCC 374 where the dispute between the parties was of civil nature and proceedings in respect of the same were pending before the arbitrator the proceedings of the criminal complaint were quashed. Paragraph nos. 12 to 15 of Medmeme, LLC (supra) are being reproduced as under:- "12. After going through the allegations contained in the complaint and the material on record, we are of firm conclusion that the matter entirely pertains to civil jurisdiction and not even a prima facie case is made out for offences Under Sections 420, 406, 409 read with Section 120B of Indian Penal Code even if the allegations contained in the complaint are to be taken on their face value. The complaint gives a clear impression that it was primarily a case where the Respondent had alleged breach of contract on the part of the Appellants in not making the entire payments for the services rendered to the Appellants. On the other hand, it is not in dispute that substantial amounts have been paid by the Appellants to the Respondent-company for the services rendered. 13. Reason for non-payment of the balance amount as given by the Appellants is that the services rendered by the Respondent-company were not in terms of the agreement entered into between the parties and were deficient in nature. For this reason, even the Appellants have filed claims against the Respondent-company alleging that Appellant suffered losses because of the defective services provided by the Respondent. 14. On the basis of it, we find that it cannot be said that at the time of entering into the agreement, either the first agreement or even the second agreement, there was any intention on the part of the Appellants to cheat the Respondent. No suspicion of any nature was shown or even alleged. It is also not the allegation of the Respondent in the complaint that the agreement was entered into with fraudulent or dishonest intention on the part of the Appellants in inducing the Respondent to enter into such a contract. At best, the dispute between the parties is of a civil nature, proceedings in respect of which are pending before the learned Arbitrator. 15. We, thus, allow this appeal, set aside the judgment of the High Court and thereby allow the petition filed by the Appellants in the High Court Under Section 482 of Code of Criminal Procedure. The result whereof would be quashing of the proceedings arising out of Complaint No. 142 of 2012 pending in the Court of Judicial Magistrate-II, Puducherry." 15. In the case of Mohd. Ibrahim (supra) it has also been held that the Dispute of Civil Nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences even if they also amount to civil dispute. 16. It could not be established before this Court as to how on the basis of the averments of the complaint and the material on record prima facie case for summoning of the opposite party no. 16. It could not be established before this Court as to how on the basis of the averments of the complaint and the material on record prima facie case for summoning of the opposite party no. 2 under Sections 419, 420, 467, 468, 471, 472, 504, 506 I.P.C. was made out. The ingredients to constitute such offences could not be shown to exist on the material on record. 17. It has also been well settled in law in the cases of:- (a). R.P. Kapur versus State of Punjab AIR 1960 SC 866 , (b). State of Haryana versus Bhajanlal AIR 1992 SC 604 and (c). Rakhi Mishra versus State of Bihar (2017) 16 SCC 772 , that at the stage of summoning, the Magistrate has to satisfy judiciously, if prima facie case is made out or not on the material available on record for summoning the accused persons. 18. The learned Magistrate has recorded that the applicant failed to state if his Mausi (Maina Devi) was alive or not. The complaint was filed by the applicant but not by Maina Devi and even she did not appear as a witness under Section 202 Cr.P.C. 19. The primary grievance, if any, would be to Maina Devi, but if she did not file any complaint nor appeared as witness, this Court does not find any illegality in the order of Magistrate in dismissing the complaint filed by the present applicant. 20. The revisional court has also on judicious considerations rightly rejected the revision. 21. The order passed by the Magistrate is in conformity with law. Any case, for interference in the exercise of jurisdiction under Section 482 Cr.P.C. on the grounds of "preventing abuse of the process of Court" or to secure the ends of justice" is not made out. 22. The application under Section 482 Cr.P.C. deserves to be rejected. It is accordingly rejected. 23. No orders as to cost.