HIGH COURT OF UTTARAKHAND AT NAINITAL v. Mr. K.P. Upadhyay, learned Senior Counsel assisted by Mr

found a prima facie case under Sections 420 & 421 IPC; that, being aggrieved by the same, the applicant filed a Criminal Revision No. 93 of 2016, which was partly allowed by the learned 2nd Additional District & Sessions Judge, Nainital, whereby the summoning under Section 421 IPC has been quashed but upheld the order under Section 420 IPC. Hence, this application.

3. Learned senior counsel for the applicant would submit that respondent no.1 had earlier complained to the SSP, Nainital. On inquiry, the Circle Officer found no criminal ingredients and recommended no police action; that, respondent, an educated person, inspected the property and examined the khatoni prior to purchase; that, the applicant had clearly informed the building map had not been 2 sanctioned; that, the sale was effected after respondent’s full satisfaction as to nature and area.

4. Learned senior counsel for the applicant would submit that the complaint contains no allegation of fraudulent or dishonest intention from the inception of the transaction, which is sine qua non for Section 420 IPC; that, at best, the dispute is in nature regarding sale/purchase and measurement, therefore, the entire criminal proceedings is unsustainable in the eyes of law. In support of his case, he relied upon the judgment in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749, wherein Hon’ble Apex Court has held that summoning an accused is a serious matter requiring judicial application of mind. He also relied upon the judgment of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, wherein the Hon’ble Apex Court has held that quashing permissible where allegations do not disclose essential ingredients of the offence. He also relied the judgment of Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1, wherein the Apex Court has held that Section 482 Cr.P.C. powers to be used to prevent abuse of process and secure ends of justice.

5. Per contra, learned counsel for respondent no. 1 vehemently opposed the submissions advanced on behalf of the applicant and contended that there are specific allegations against the 3 applicant pertaining fraud and cheating. Therefore, the offence under Section 420 I.P.C. is clearly made out. It was further submitted that the grounds urged by the applicant involve disputed questions of fact and issues relating to evidence, which cannot be adjudicated while exercising jurisdiction under Section 482 Cr.P.C., and are matters to be examined and decided during the course of trial.

6. Heard learned counsel for the parties and perused the material available on record.

7. Upon perusal of the complaint, it becomes evident that the respondent no. 2/complainant has failed to establish that the applicant possessed any intention to cheat from the very inception of the transaction. The dispute between the parties revolves solely around the sale and purchase of land and the alleged issues arising therefrom. The nature of this dispute is purely civil.

8. The Hon’ble Supreme Court in Paramjeet Batra vs. State of Uttarakhand (2013) 11 SCC 673 has recognized that while the inherent powers of the High Court under Section 482 Cr.P.C. must be exercised sparingly, the Court should not hesitate to quash proceedings which are essentially civil in nature. The Court observed: “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 4 to secure the ends of justice… 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… the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court.”

9. In the present case, the allegations essentially pertain to a breach of contract. A mere breach, without proof of fraudulent or dishonest intention at the inception, does not attract criminal liability under Section 420 IPC.

10. Further reliance was placed upon the recent judgment of the Hon’ble Supreme Court in Google India Private Limited vs. Visakha Industries & Ors., AIR 2020 SC 350, wherein the Court reiterated the guidelines in paragraph 102 of State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335, illustrating categories of cases wherein the High Court may exercise inherent powers under Section 482 Cr.P.C. to prevent abuse of process of the court and to secure the ends of justice, particularly where the allegations do not disclose the commission of any offence or where proceedings are manifestly attended with mala fides.

11. Similarly, in Lalit Chaturvedi & Ors. vs. State of Uttar Pradesh & Anr., 2024 SCC OnLine SC 171, relying upon Mohammed Ibrahim & Ors. vs. State of Bihar & Anr. (2009) 8 SCC 751, the Court reiterated that to constitute 5 cheating, following ingredients must be satisfied: “Deception by false/misleading representation or dishonest concealment. Fraudulent or dishonest inducement causing: Delivery of property; or Consent to retention of property; or Inducing a person to do or omit an act which they would not have done otherwise. Resulting damage or harm to body, mind, reputation, or property.”

12. In V.Y. Jose vs. State of Gujarat (2009) 3 SCC 78, the Court held that contractual disputes per se should not lead to criminal prosecution unless fraudulent or dishonest intention is shown at inception.

13. In Kunti & Anr. v. State of Uttar Pradesh & Anr. (2023) 6 SCC 109, the Hon’ble Supreme Court, following its earlier decision in Sarabjit Kaur v. State of Punjab & Anr. (2023) 5 SCC 360, reiterated that a mere breach of contract does not constitute the offence of cheating unless it is shown that the accused had a dishonest intention at the very inception of the transaction. The Court further held that the criminal process cannot be misused as an instrument to pressurise recovery in what is essentially a civil dispute

14. This principle was reiterated in Thermax Ltd. & Ors. vs. K.M. Johny & Ors. (2011) 13 SCC 412 , wherein it was emphasized that while some disputes may have both civil and criminal elements, a conscious judicial application of mind 6 necessary before issuing process, given the serious consequences of a summoning order.

15. In this case, the FIR clearly shows that the dispute is about the sale and purchase of a property. The payment was made, but later there disagreements property’s measurement and possession. Importantly, the complaint does not say anywhere that the applicant ever dishonestly convinced the complainant to give money, which is an essential requirement to prove the offence of cheating under Section 420 IPC. As held in R.K. Vijayasarathy vs. Sudha Seetharam (2019) 16 SCC 739, cheating requires proof of fraudulent or dishonest inducement from inception. Likewise, in Hari Prasad Chamaria vs. Bishun Kumar Surekha (1973) 2 SCC 823, the Court held that mere non-performance of a promise, absent such initial intention, creates at best civil liability but not a criminal offence.

16. In the present case, there is no allegation that the applicant, at any stage, dishonestly induced the complainant to deliver any property or part with money so as to attract the offence of cheating under Section 420 IPC. The dispute, as borne out from the complaint, pertains solely to a civil disagreement regarding land measurement, and thus the essential ingredients of Section 420 IPC are conspicuously absent.

17. In view of the facts and the nature of 7 allegations, the dispute, though presented in the garb of a criminal prosecution, is in essence a civil dispute arising out of a contractual transaction. The complaint lacks the essential ingredients to constitute offences under Sections 420. There is neither any allegation of fraudulent or dishonest inducement at the inception of the transaction, nor any evidence of misappropriation of property entrusted to the applicant.

18. In view of the above discussion, this Court finds that it is a fit case to exercise inherent powers under Section 482 Cr.P.C.

19. Accordingly, the C-482 application allowed. The impugned judgment and order dated

27.03.2017 passed by the learned 2nd Additional District & Sessions Judge, Nainital in Criminal Revision No. 93 of 2016 Harish Chandra Gururani vs. Anoop Agarwal & Anr., as well as the cognizance/summoning order dated 02.08.2016 passed by the learned 1st Additional Civil Judge (Junior Division)/Judicial Magistrate, Nainital in Criminal Case No. 616 of 2016, and the entire proceedings of the said case, are hereby quashed.

20. Pending applications, if any, also stand disposed of accordingly.

06.08.2025 Mamta (ALOK MAHRA, J.) 8 9