"A. Quash the entire proceedings of Criminal Case No. 44329/2023; State v. Hitsaurabha Motiwala & Others under Sections 406 & 420 IPC, pending against the

B. Quash the Chargesheet filed by the Police of Police Station Hazaratganj, District Lucknow against the Petitioner/Applicant, under Section 406 and 420 I.P.C in connection with FIR of Case Crime No. 0376/2020, which has culminated in the proceedings of Criminal Case No. 44329/2023, pending before the Judicial Magistrate 1 ATS, Lucknow. (Annexure No. 2)." Taking note of facts and circumstances of the case as also the submissions advanced by the learned counsel for the applicant and also the order dated 05.08.2024 passed in APPLICATION U/S 482 No. - 6721 of 2024, this Court, prima facie, is of the view that the applicant is also liable to be interim protection. The order dated 05.08.2024 passed in APPLICATION U/S 482 No. - 6721 of 2024 is extracted hereinunder:- "Heard Sri Amarjeet Singh Rakhra, learned counsel for the applicant and Sri Suman Kumar, in person, who appeared on behalf of opposite party No.2- Moneywise Financial Services Pvt. Ltd. Present application has been filed by the applicant to quash entire proceedings of Criminal Case No.44329 of 2023, arising out of Case Crime No.0376 of 2020 under Section 406 & 420 IPC, P.S.-Hazratganj, District-Lucknow pending before the Judicial Magistrate 1st, ATS, Lucknow. For the purposes of entertaining the present application and also for interim protection, the learned counsel for the applicant submitted that the opposite party No. 2 is a financial institution and from the opposite party No. 2 some amount was taken as a loan by Hitsaurabh B. Motiwala and in relation to this loan, an agreement was executed between the parties which contains an arbitration clause as Clause No. 27 and this fact can be deduced from the copy of Master Loan Agreement of opposite party No. 2, annexed as Annexure No. 7 to this application. In continuation, it is stated that Clause No. 27 provides that any dispute or difference under or in connection with this Agreement or any breach thereof, which cannot be settled by mutual negotiation between the parties, shall be finally settled by arbitration conducted in accordance with Arbitration and Conciliation Act, 1996 by a sole arbitrator. It is further submitted that the applicants are guarantor of the loan amount obtained by co-accused namely Hitsaurabh B. Motiwala and in terms of Section 120-B of the Contract Act, 1872 the applicant is liable to pay the amount to the extent they have entered into the agreement with financial institution as a guarantor. It is also stated that in relation to the loan agreement between financial institution and co-accused namely Hitsaurabh B. Motiwala dated 01.05.2019, the opposite party No. 2 approached the High Court of Delhi by preferring an application registered as ARB. P. No. 864 of 2023 (Moneywise Financial Services Pvt. Ltd. vs. Hitsaurabh B Motiwala) and High Court of Delhi after considering the Clause 27 of the agreement between the parties passed the final order on 26.02.2024, whereby appointed Sole Arbitrator for adjudication of the dispute between the parties. Relevant Para 19 of the order dated 26.02.2024, referred, reads as under:- "19. With these observations, the parties are referred to the arbitration for adjudication of their dispute arising from the Loan Agreement. The following directions are issued:- (?) Justice Ali Mohammad Magray (Retd.) (Chief Justice of J&K) (Mob. No. 6005509928) is appointed as a Sole Arbitrator to adjudicate the disputes between the parties. (ii) The arbitration will be held under the aegis of the Delhi International Arbitration Centre, Delhi High Court, Sher Shah Road, New Delhi hereinafter, referred to as the 'DIAC'). The remuneration of the learned Arbitrator shall be in terms of the Fourth Schedule of the Arbitration & Conciliation Act, 1996. (iii) The learned Arbitrator is requested to furnish a declaration in terms of Section 12 of the Act prior to entering into the reference. (iv) It is made clear that all the rights and contentions of the parties, including as to the arbitrability of any of the claim, any other preliminary objection, as well as claims on merits of the dispute of either of the parties, are left open for adjudication by the learned arbitrator. (v) The parties shall approach the learned Arbitrator within two weeks from today." It is also stated that Sole Arbitrator appointed by the High Court of Delhi vide order dated 26.02.2024 is proceeding in the matter as would appear from various order(s) passed by the learned Arbitrator annexed as Annexure No. 10 to the present application. It is further submitted that essential ingredients to attract the offence under Section 406 and 420 IPC so far as it relates to present applicants are not attracted in the instant case. In continuation, it is stated that during investigation, the Investigating Officer found that the addresses given by the present applicant while signing the guarantee agreement were correct. It is also stated that the proceedings in terms of Section 120-B of the Act of 1872 have not yet been initiated rightly so because the proceedings are pending before the learned Arbitrator appointed by the High Court of Delhi, who is proceeding in the matter for the adjudication of dispute under the agreement and the application for appointment of sole Arbitrator so as to resolve the dispute between the borrower and financial institution i.e. opposite party No. 2 was preferred by the opposite party No. 2. It is further stated that to constitute an offence punishable under Section 406 of IPC, there must be criminal breach of trust as defined under Section 405 of IPC. To constitute criminal breach of trust, there must be entrustment of the property or domain over the property ?? there must be dishonest misappropriation of such property. Thus, in the instant case, Section 406 IPC against the applicant would not be attracted. To constitute an offence under Section 420 IPC there must be cheating dishonesty by inducing the person to deliver any property or to make alter or destroy the whole or any part of valuable security etc. and in the instant case, there is no allegation against the applicants, who are guarantor, so as to attract offence under Section 420 IPC. Sri Suman Kumar, who appeared in person for the opposite party No. 2, stated that, in view of final judgment passed by the Division Bench of this Court in Criminal Misc. Writ Petition No. 15021 of 2021, in which the applicants were also the petitioners, the present application is not maintainable, as the Division Bench of this Court before dismissing the said petition opined that once the police report attributing complicity of the petitioners on conclusion of investigation has been forwarded to the court concerned, it cannot be said that a cognizable offence is not made out. In support of his submissions, Sri Suman has placed reliance on the judgment passed by the Ho'ble Apex Court in the case of Bhisham Lal Verma v. State of U.P., 2023 SCC OnLine SC 1399. In response, Sri Rakhra stated that before the Writ Court, the FIR was challenged and taking note of the facts of the case, Writ Court protected the interest of all the petitioners vide order dated 19.07.2021 and in terms of the said order, the interim protection was granted till the next date of listing or till submission of police report under Section 173(2) Cr.P.C. and taking note of the same as also the fact that the charge sheet has been filed in terms of Section 173(2) Cr.P.C., the Division Bench of this Court dismissed the said writ petition vide order dated 27.04.2023, wherein it has been observed that the dismissal of the petition is without prejudice to the legal remedy available under law. In the aforesaid background of the case, the applicant has approached this Court by means of this application under Section 482 Cr.P.C./Section 528 Bharatiya Nagrik Suraksha Sanhita, 2023 (in short "BNSS"), which is the remedy available for challenging entire criminal proceedings pending before the trial court, the basis of which is the FIR against which the writ petition was filed. It is also stated that considering the aforesaid as also the judgment rendered by the Full Bench of this Court in case of Ram Lal Yadav and Others vs. State of U.P. & Others, (1989) Cr. LJ 1013, the present application is liable to be entertained and the interest of the applicants is liable to be protected. Upon due consideration of the aforesaid, this Court finds that the matter requires consideration. Accordingly, six weeks' time, as prayed for, is granted to Sri Suman, who appeared in person for the opposite party No. 2, for filing counter affidavit. Two weeks' time thereafter shall be available to the applicants' counsel to file rejoinder affidavit. List/put up this case on 15.10.2024. Till the next date of listing, the proceedings in issue against the applicants shall remain stayed." Accordingly, issue notice to opposite party No.2, returnable at an early date. Steps in this regard be taken within seven working days. List in the month of January, 2025 within top 30 cases alongwith APPLICATION U/S 482 No. - 6721 of 2024. Till the next date of listing, the proceedings in issue against the applicant shall be kept in abeyance so far as the same relate to applicant. Order Date :- 7.1.2025 Arun/-

B. Quash the Chargesheet filed by the Police of Police Station Hazaratganj, District Lucknow against the Petitioner/Applicant, under Section 406 and 420 I.P.C in connection with FIR of Case Crime No. 0376/2020, which has culminated in the proceedings of Criminal Case No. 44329/2023, pending before the Judicial Magistrate 1 ATS, Lucknow. (Annexure No. 2)." Taking note of facts and circumstances of the case as also the submissions advanced by the learned counsel for the applicant and also the order dated 05.08.2024 passed in APPLICATION U/S 482 No. - 6721 of 2024, this Court, prima facie, is of the view that the applicant is also liable to be interim protection. The order dated 05.08.2024 passed in APPLICATION U/S 482 No. - 6721 of 2024 is extracted hereinunder:- "Heard Sri Amarjeet Singh Rakhra, learned counsel for the applicant and Sri Suman Kumar, in person, who appeared on behalf of opposite party No.2- Moneywise Financial Services Pvt. Ltd. Present application has been filed by the applicant to quash entire proceedings of Criminal Case No.44329 of 2023, arising out of Case Crime No.0376 of 2020 under Section 406 & 420 IPC, P.S.-Hazratganj, District-Lucknow pending before the Judicial Magistrate 1st, ATS, Lucknow. For the purposes of entertaining the present application and also for interim protection, the learned counsel for the applicant submitted that the opposite party No. 2 is a financial institution and from the opposite party No. 2 some amount was taken as a loan by Hitsaurabh B. Motiwala and in relation to this loan, an agreement was executed between the parties which contains an arbitration clause as Clause No. 27 and this fact can be deduced from the copy of Master Loan Agreement of opposite party No. 2, annexed as Annexure No. 7 to this application. In continuation, it is stated that Clause No. 27 provides that any dispute or difference under or in connection with this Agreement or any breach thereof, which cannot be settled by mutual negotiation between the parties, shall be finally settled by arbitration conducted in accordance with Arbitration and Conciliation Act, 1996 by a sole arbitrator. It is further submitted that the applicants are guarantor of the loan amount obtained by co-accused namely Hitsaurabh B. Motiwala and in terms of Section 120-B of the Contract Act, 1872 the applicant is liable to pay the amount to the extent they have entered into the agreement with financial institution as a guarantor. It is also stated that in relation to the loan agreement between financial institution and co-accused namely Hitsaurabh B. Motiwala dated 01.05.2019, the opposite party No. 2 approached the High Court of Delhi by preferring an application registered as ARB. P. No. 864 of 2023 (Moneywise Financial Services Pvt. Ltd. vs. Hitsaurabh B Motiwala) and High Court of Delhi after considering the Clause 27 of the agreement between the parties passed the final order on 26.02.2024, whereby appointed Sole Arbitrator for adjudication of the dispute between the parties. Relevant Para 19 of the order dated 26.02.2024, referred, reads as under:- "19. With these observations, the parties are referred to the arbitration for adjudication of their dispute arising from the Loan Agreement. The following directions are issued:- (?) Justice Ali Mohammad Magray (Retd.) (Chief Justice of J&K) (Mob. No. 6005509928) is appointed as a Sole Arbitrator to adjudicate the disputes between the parties. (ii) The arbitration will be held under the aegis of the Delhi International Arbitration Centre, Delhi High Court, Sher Shah Road, New Delhi hereinafter, referred to as the 'DIAC'). The remuneration of the learned Arbitrator shall be in terms of the Fourth Schedule of the Arbitration & Conciliation Act, 1996. (iii) The learned Arbitrator is requested to furnish a declaration in terms of Section 12 of the Act prior to entering into the reference. (iv) It is made clear that all the rights and contentions of the parties, including as to the arbitrability of any of the claim, any other preliminary objection, as well as claims on merits of the dispute of either of the parties, are left open for adjudication by the learned arbitrator. (v) The parties shall approach the learned Arbitrator within two weeks from today." It is also stated that Sole Arbitrator appointed by the High Court of Delhi vide order dated 26.02.2024 is proceeding in the matter as would appear from various order(s) passed by the learned Arbitrator annexed as Annexure No. 10 to the present application. It is further submitted that essential ingredients to attract the offence under Section 406 and 420 IPC so far as it relates to present applicants are not attracted in the instant case. In continuation, it is stated that during investigation, the Investigating Officer found that the addresses given by the present applicant while signing the guarantee agreement were correct. It is also stated that the proceedings in terms of Section 120-B of the Act of 1872 have not yet been initiated rightly so because the proceedings are pending before the learned Arbitrator appointed by the High Court of Delhi, who is proceeding in the matter for the adjudication of dispute under the agreement and the application for appointment of sole Arbitrator so as to resolve the dispute between the borrower and financial institution i.e. opposite party No. 2 was preferred by the opposite party No. 2. It is further stated that to constitute an offence punishable under Section 406 of IPC, there must be criminal breach of trust as defined under Section 405 of IPC. To constitute criminal breach of trust, there must be entrustment of the property or domain over the property ?? there must be dishonest misappropriation of such property. Thus, in the instant case, Section 406 IPC against the applicant would not be attracted. To constitute an offence under Section 420 IPC there must be cheating dishonesty by inducing the person to deliver any property or to make alter or destroy the whole or any part of valuable security etc. and in the instant case, there is no allegation against the applicants, who are guarantor, so as to attract offence under Section 420 IPC. Sri Suman Kumar, who appeared in person for the opposite party No. 2, stated that, in view of final judgment passed by the Division Bench of this Court in Criminal Misc. Writ Petition No. 15021 of 2021, in which the applicants were also the petitioners, the present application is not maintainable, as the Division Bench of this Court before dismissing the said petition opined that once the police report attributing complicity of the petitioners on conclusion of investigation has been forwarded to the court concerned, it cannot be said that a cognizable offence is not made out. In support of his submissions, Sri Suman has placed reliance on the judgment passed by the Ho'ble Apex Court in the case of Bhisham Lal Verma v. State of U.P., 2023 SCC OnLine SC 1399. In response, Sri Rakhra stated that before the Writ Court, the FIR was challenged and taking note of the facts of the case, Writ Court protected the interest of all the petitioners vide order dated 19.07.2021 and in terms of the said order, the interim protection was granted till the next date of listing or till submission of police report under Section 173(2) Cr.P.C. and taking note of the same as also the fact that the charge sheet has been filed in terms of Section 173(2) Cr.P.C., the Division Bench of this Court dismissed the said writ petition vide order dated 27.04.2023, wherein it has been observed that the dismissal of the petition is without prejudice to the legal remedy available under law. In the aforesaid background of the case, the applicant has approached this Court by means of this application under Section 482 Cr.P.C./Section 528 Bharatiya Nagrik Suraksha Sanhita, 2023 (in short "BNSS"), which is the remedy available for challenging entire criminal proceedings pending before the trial court, the basis of which is the FIR against which the writ petition was filed. It is also stated that considering the aforesaid as also the judgment rendered by the Full Bench of this Court in case of Ram Lal Yadav and Others vs. State of U.P. & Others, (1989) Cr. LJ 1013, the present application is liable to be entertained and the interest of the applicants is liable to be protected. Upon due consideration of the aforesaid, this Court finds that the matter requires consideration. Accordingly, six weeks' time, as prayed for, is granted to Sri Suman, who appeared in person for the opposite party No. 2, for filing counter affidavit. Two weeks' time thereafter shall be available to the applicants' counsel to file rejoinder affidavit. List/put up this case on 15.10.2024. Till the next date of listing, the proceedings in issue against the applicants shall remain stayed." Accordingly, issue notice to opposite party No.2, returnable at an early date. Steps in this regard be taken within seven working days. List in the month of January, 2025 within top 30 cases alongwith APPLICATION U/S 482 No. - 6721 of 2024. Till the next date of listing, the proceedings in issue against the applicant shall be kept in abeyance so far as the same relate to applicant. Order Date :- 7.1.2025 Arun/-