Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1899 (ALL)

H. S. Narula v. State of U. P.

2024-08-14

SAURABH SHYAM SHAMSHERY

body2024
JUDGMENT Saurabh Shyam Shamshery, J. Heard Sri Shashi Kant Shukla, lerned counsel for applicants, Sri Ravindra Kumar Srivastava, learned counsel for O.P. No.2 and Sri Om Prakash Mishra, learned A.G.A. for State. 2. Applicants before this Court are owners of one M/s DSC Ltd. 3. At this stage it is not under dispute that aforesaid Company had executed an agreement dated 18.5.2012 with complainant's company for construction of residential units at Meerut. It was the case of complainant that on a promise of regular payment, they had invested about Rs.13 lakhs for construction, however, said payment was not made and later on company's construction material was also confiscated. 4. It is further case of complainant that a civil suit was filed at the behest of complainant in the year 2013 against present applicants for permanent injunction. Said civil suit is still pending where applicants are appearing. It is further case of complainant that on 20.10.2019, applicants have proposed for a settlement and to put pressure to enter into an agreement on a very minimum amount. Complainant alleged that it was modus operandi of applicants to put pressure on small construction companies to negotiate on a very small amount. 5. In aforesaid circumstances, complainant filed a complaint, under Section 156(3) Cr.P.C. on 28.2.2020, which was considered as a criminal complaint vide order dated 30.9.2020. 6. In aforesaid case, statement of complainant was recorded under Section 200 Cr.P.C. as well as of witnesses under Section 202 Cr.P.C. and thereafter by way of impugned order passed under Section 204 Cr.P.C. dated 13.3.2024, applicants were summoned to face trial under Section 406 I.P.C., relevant part thereof is reproduced hereinafter: 7. Learned counsel for applicants submits that dispute in present case was essentially of a civil nature, but complainant has given it a criminal colour. Complainant has already relegated to civil suit way back in the year 2013, as such a complaint filed in year 2020 i.e. after 7 years is barred by provisions of law. 8. Learned counsel for applicants in support of above submissions has referred Section 468 Cr.P.C. i.e. 'Bar of taking cognizance after a lapse of period of limitation'. He further referred Section 406 I.P.C. which is punishable with imprisonment of either description for a term which may extend to three years or with fine or with both and to take cognizance of such offence, limitation is of three years. He further referred Section 406 I.P.C. which is punishable with imprisonment of either description for a term which may extend to three years or with fine or with both and to take cognizance of such offence, limitation is of three years. For reference, Section 468 Cr.P.C. is reproduced hereinafter: "Section 468 - Bar to taking cognizance after lapse of the period of limitation: 1. Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in Sub-Section (2), after the expiry of the period of limitation. 2. The period of limitation shall be- (a)six months, if the offence is punishable with fine only; (b)one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c)three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. 3. For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment." 9. Learned counsel for applicants further submitted that it is still under dispute as to whether complainant's company has executed some constructions or not and as to whether it has spent certain money or not, therefore, on facts of this case, no offence is made out under Section 406 I.P.C. as well as basic ingredients of 'entrustment' was missing. 10. Learned counsel for the complainant has not disputed above facts of present case as mentioned above, except that during proceedings of a civil suit at a later stage in the year 2019, applicants have forced complainant to enter into a compromise, as such it may be a case of continuing offence as defined under Section 472 Cr.P.C. and in a given circumstances, there will be no bar. For reference Section 472 Cr.P.C. is also reproduced hereinafter: " Section 472 - Continuing offence In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues." 11. Learned counsel for applicants also referred impugned order that there are sufficient grounds for proceedings against applicants. 12. Heard learned counsel for parties and perused the records. 13. Learned counsel for applicants also referred impugned order that there are sufficient grounds for proceedings against applicants. 12. Heard learned counsel for parties and perused the records. 13. In above factual and legal background, it is not under dispute that an agreement was executed between parties which does not appear to be finally executed and a dispute arose. It is a case of complainant that she has spent huge money towards construction and not only said amount was not paid, but companies' construction materials were confiscated by applicants as well as that a civil suit was filed way-back in year 2013 at the behest of complainant. 14. On basis of records available before this Court from year 2013 to 2019, no material was placed that there were any negotiations for settlement or otherwise between parties and that suddenly in the year 2019, i.e. after six years the complainant has come up with a case that applicants have tried for settlement and only thereafter she has filed present complaint. 15. From contents of complaint an argument that it would be a continuing offence does not appear to have a legal basis as for continuing offence there must be repeated cause of action. However,as referred above, in present case there was a gap of six years, therefore, argument of learned counsel for applicants in respect of Section 468 Cr.P.C. becomes relevant. 16. As referred above,Section 468 Cr.P.C. prescribes a limitation for alleged offence of 'criminal breach of trust' which is of three years which got expired in year 2017. Alleged occurrence which took place in year 2019 could not be considered to be a ground to consider it a continuing offence, rather it would be a fresh cause of action, if any, therefore, cognizance of offence taken after about 7 years was absolutely barred by Section 468 Cr.P.C. 17. Alleged occurrence which took place in year 2019 could not be considered to be a ground to consider it a continuing offence, rather it would be a fresh cause of action, if any, therefore, cognizance of offence taken after about 7 years was absolutely barred by Section 468 Cr.P.C. 17. Court also considered the case on merits that since a suit has already been filed by complainant, therefore, at very belated stage to file an application under Section 156(3) Cr.P.C. was nothing, but an attempt to give a cloak of a criminal case to a dispute which was essentially of a civil dispute and for that a reference was taken of judgments passed by Supreme Court in case of A.M.Mohan v. State represented by SHO and Another, 2024 SCC Online SC 339 and Paramjeet Batra v. State of Uttarakhand (2013) 11 SCC 673 . For reference, relevant part of aforesaid judgments are reproduced hereinafter: A.M. Mohan (supra) "10. The Court has also noted the concern with regard to a growing tendency in business circles to convert purely civil disputes into criminal cases. The Court observed that 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. The Court also recorded that there is an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. The Court, relying on the law laid down by it in the case of G. Sagar Suri v. State of U.P. held that 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. The Court also observed that though 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." Paramjeet Batra (supra) 12. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. 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.. 18. In aforesaid circumstances, no allegations are made out even on merit against applicants, as well as cognizance of offence itself is barred under Section 468 Cr.P.C. 19. Accordingly, impugned order dated 13.3.2024 passed by Judicial Magistrate/Addl. Civil Judge (Jr. Div.), Court No.5 Meerut in Complaint Case No.9581 of 2019 (Nidhi Sharma v. M/s DSC and others) and entire criminal proceedings initiated in pursuance of aforesaid complaint case is hereby quashed and this application is accordingly allowed.