State of U.P. and Another v. Party

1. Heard Mr. Janardan Prasad Tripathi, learned counsel for the applicant, learned AGA for the State and perused the records.

2. By means of the present application the applicant has prayed for quashing of the proceedings initiated by lodging of the first informant report in Case No.1223 of 2014 (State Vs. Ashok Chaudhary @ Baba), under Sections 420, 406, 504, 506 I.P.C., Police Station Khair, District Aligarh, pending in the court of learned A.C.J.M.-Ist, Aligarh.

3. According to the case of the prosecution a first information report was lodged by opposite party no.2 stating that he runs a firm in the name of Gunjan Traders and on 03.06.2010 the applicant had approached him stating that he was a friend of Shri Shubhash Thakur, who was also known to the informant. The informant spoke to Shri Subhash Thakur on telephone who requested him to give Rs.75,000/- to the applicant as he requires the money to purchase tyres and one truck of Badarpur (Sand used for construction) will be delivered to the informant in lieu of money to be given. Accordingly, on the request of Shri Subhash Thakur the informant gave Rs.40,000/- from his own resources and further Rs.35,000/- which he took from his friend Madan Lal. After waiting for a substantial period of time, neither was the money returned to the informant nor did the applicant supply the Badarpur as promised and accordingly on 19.07.2011 the informant went to the applicant asking him for his money when he declined to get the money and threatened the informant as a consequence of which the first information report was lodged. After investigation the charge-sheet was filed in the trial court and 2 A482 No. 49627 of 2014 cognizance was taken against which the present proceedings were initiated.

4. This Court by means of an interim order dated 04.02.2015 has stayed the further proceedings of the trial court. No counter affidavit has been filed after more than 12 years by opposite party no.2.

5. Learned counsel for the applicant has urged that a perusal of the allegations levelled in the first information report do not make out any offence against the applicant apart which it is stated that merely a civil dispute is pending between the parties and the opposite party no.2 can initiate proceedings for suit of recovery for the said money and there is no element of criminality attach consequently, on this account proceedings deserve to be set aside by this Court.

6. In the year 2023 the State has filed a counter affidavit and have stated that sufficient material was available before the prosecuting agency due to which the charge-sheet has been filed. Learned AGA urged that in such circumstances, no case is made out for interference by this Court.

7. I have heard learned counsel for the parties and perused the record.

8. From perusal of the first information report it is evident that amount of Rs.75,000/- was given by the informant to the applicant. There is no dispute that the money was given at the behest of one Shri Subhash Thakur who had spoken to the informant and stood guarantee for the said amount. It seems that the money has not been repaid to the informant from Shri Subhash Thakur as well as by the informant due to which the present criminal proceedings have been initiated by lodging of the first information report.

9. From perusal of the aforesaid, this Court is of the considered view that the informant is merely seeking repayment of outstanding amount given by him in favour of the informant. We do not find any element or ingredient of offence the offence under Section 406 I.P.C. We find that there is entrustment of the money in favour of the applicant but there is no criminal misappropriation or any allegation of criminal misappropriation by the informant. Simply not returning the money advanced without any criminal intimation cannot amount to misappropriation as disclosed Section 405 of I.P.C. Mens rea is an essential ingredient to be proved in any criminal offence in absence of which an offence cannot be made out. 3 A482 No. 49627 of 2014 From perusal of the first information report I find that apart from entrustment and non-repayment of the said money, there is no allegation which can demonstrate that there was any mens rea which can attract provisions of Section 406 I.P.C.

10. Apart from the oral allegation regarding Section 506 I.P.C. this Court do not find any substance in the said allegations which are made out.

11. In this regard Hon'ble Supreme Court in the case of M/s Thermax Ltd. and Others Vs. K.M. Johny and Others - Criminal Appeal No. 1868 of 2011 (arising out of SLP (Crl.) No. 590 of 2008), decided on

27.09.2011, has observed as under :- 12…....Nagawwa vs. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 and State of Haryana vs. Bhajan Lal 1992 Supp (1) SCC 335, this Court concluded thus: "7. In a few cases, the question arose whether a criminal prosecution could be permitted when the dispute between the parties is of predominantly civil nature and the appropriate remedy would be a civil suit. In one case reported in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre this Court held that if the allegations in the complaint are both of a civil wrong and a criminal offence, it would there would be certain situations where predominantly be a civil wrong and may or may not amount to a criminal offence....... 16) The principles enunciated from the above-quoted decisions clearly show that for proceedings under Section 156(3) of the Code, the complaint must disclose relevant material ingredients of Section 405, 406, 420 read with Section 34 IPC. If there is a flavour of civil nature, the same cannot be agitated in the form of criminal proceeding. If there is huge delay and in order to avoid the period of limitation, it cannot be resorted to a criminal proceeding. 19) It is settled law that the essential ingredients for an offence under Section 420, which we have already extracted, is that there has to be dishonest intention to deceive another person. We have already quoted the relevant allegations in the complaint and perusal of the same clearly shows that no such dishonest intention can be seen or even inferred inasmuch as the entire dispute pertains to contractual obligations between the parties. Since the very ingredients of Section 420 are not attracted, the prosecution initiated is wholly untenable. Even if we admit that allegations in the complaint do make out a dispute, still it ought to be considered that the same is merely a breach of contract and the same cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction. Inasmuch as there are number of documents to show that appellant- 4 A482 No. 49627 of 2014 Company had acted in terms of the agreement and in a bona fide manner, it cannot be said that the act of the appellant-Company amounts to a breach of contract.

12. Apart from the above, this Court find that even ingredients of Section 420 I.P.C. are not made out. From the un-controverted facts appearing in the first information report it is Subhash Thakur who spokes to the informant before giving the money to the applicant. It is not the case that Subhash Thakur never spoke to the informant or even subsequently denied speaking to the informant requesting him to hand over the money to the applicant. Accordingly, it cannot be said that any element of cheating is made out as described under Section 420 I.P.C.

13. In view of the foregoing discussion, this Court finds that the allegations contained in the first information report, evenif accepted in their entirety, do not disclose the essential ingredients of the offences under Sections 406, 420, 504 and 506 I.P.C. The material on record reflects that the dispute between the parties is purely of civil nature pertaining to recovery of money, without any element of criminality. The ingredients of dishonest intention at inception, as required under Section 420 I.P.C., or criminal misappropriation as envisaged under Section 406 I.P.C., are wholly absent. Similarly, the allegations regarding criminal intimidation under Section 506 I.P.C. are vague and unsupported. Mere non-repayment of money advanced, without mens rea, cannot give rise to criminal prosecution. Further, the proceedings have remained stayed for more than twelve years and the informant, despite due notice, has chosen not to contest. Continuation of such proceedings would amount to abuse of the process of law and no useful purpose would be served in keeping the saame pending. Accordingly, the proceedings of Case No.1223 of 2014 (State Vs. Ashok Chaudhary @ Baba), under Sections 420, 406, 504, 506 I.P.C., Police Station Khair, District Aligarh, pending before the court of learned A.C.J.M.-Ist, Aligarh, are hereby quashed.The application under Section 482 Cr.P.C. is, accordingly, allowed. (Alok Mathur,J.) September 15, 2025 AS ABHISHEK SINGH ABHISHEK SINGH High Court of Judicature at Allahabad High Court of Judicature at Allahabad

1. Heard Mr. Janardan Prasad Tripathi, learned counsel for the applicant, learned AGA for the State and perused the records.

2. By means of the present application the applicant has prayed for quashing of the proceedings initiated by lodging of the first informant report in Case No.1223 of 2014 (State Vs. Ashok Chaudhary @ Baba), under Sections 420, 406, 504, 506 I.P.C., Police Station Khair, District Aligarh, pending in the court of learned A.C.J.M.-Ist, Aligarh.

3. According to the case of the prosecution a first information report was lodged by opposite party no.2 stating that he runs a firm in the name of Gunjan Traders and on 03.06.2010 the applicant had approached him stating that he was a friend of Shri Shubhash Thakur, who was also known to the informant. The informant spoke to Shri Subhash Thakur on telephone who requested him to give Rs.75,000/- to the applicant as he requires the money to purchase tyres and one truck of Badarpur (Sand used for construction) will be delivered to the informant in lieu of money to be given. Accordingly, on the request of Shri Subhash Thakur the informant gave Rs.40,000/- from his own resources and further Rs.35,000/- which he took from his friend Madan Lal. After waiting for a substantial period of time, neither was the money returned to the informant nor did the applicant supply the Badarpur as promised and accordingly on 19.07.2011 the informant went to the applicant asking him for his money when he declined to get the money and threatened the informant as a consequence of which the first information report was lodged. After investigation the charge-sheet was filed in the trial court and 2 A482 No. 49627 of 2014 cognizance was taken against which the present proceedings were initiated.

4. This Court by means of an interim order dated 04.02.2015 has stayed the further proceedings of the trial court. No counter affidavit has been filed after more than 12 years by opposite party no.2.

5. Learned counsel for the applicant has urged that a perusal of the allegations levelled in the first information report do not make out any offence against the applicant apart which it is stated that merely a civil dispute is pending between the parties and the opposite party no.2 can initiate proceedings for suit of recovery for the said money and there is no element of criminality attach consequently, on this account proceedings deserve to be set aside by this Court.

6. In the year 2023 the State has filed a counter affidavit and have stated that sufficient material was available before the prosecuting agency due to which the charge-sheet has been filed. Learned AGA urged that in such circumstances, no case is made out for interference by this Court.

7. I have heard learned counsel for the parties and perused the record.

8. From perusal of the first information report it is evident that amount of Rs.75,000/- was given by the informant to the applicant. There is no dispute that the money was given at the behest of one Shri Subhash Thakur who had spoken to the informant and stood guarantee for the said amount. It seems that the money has not been repaid to the informant from Shri Subhash Thakur as well as by the informant due to which the present criminal proceedings have been initiated by lodging of the first information report.

9. From perusal of the aforesaid, this Court is of the considered view that the informant is merely seeking repayment of outstanding amount given by him in favour of the informant. We do not find any element or ingredient of offence the offence under Section 406 I.P.C. We find that there is entrustment of the money in favour of the applicant but there is no criminal misappropriation or any allegation of criminal misappropriation by the informant. Simply not returning the money advanced without any criminal intimation cannot amount to misappropriation as disclosed Section 405 of I.P.C. Mens rea is an essential ingredient to be proved in any criminal offence in absence of which an offence cannot be made out. 3 A482 No. 49627 of 2014 From perusal of the first information report I find that apart from entrustment and non-repayment of the said money, there is no allegation which can demonstrate that there was any mens rea which can attract provisions of Section 406 I.P.C.

10. Apart from the oral allegation regarding Section 506 I.P.C. this Court do not find any substance in the said allegations which are made out.

11. In this regard Hon'ble Supreme Court in the case of M/s Thermax Ltd. and Others Vs. K.M. Johny and Others - Criminal Appeal No. 1868 of 2011 (arising out of SLP (Crl.) No. 590 of 2008), decided on

27.09.2011, has observed as under :- 12…....Nagawwa vs. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 and State of Haryana vs. Bhajan Lal 1992 Supp (1) SCC 335, this Court concluded thus: "7. In a few cases, the question arose whether a criminal prosecution could be permitted when the dispute between the parties is of predominantly civil nature and the appropriate remedy would be a civil suit. In one case reported in Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre this Court held that if the allegations in the complaint are both of a civil wrong and a criminal offence, it would there would be certain situations where predominantly be a civil wrong and may or may not amount to a criminal offence....... 16) The principles enunciated from the above-quoted decisions clearly show that for proceedings under Section 156(3) of the Code, the complaint must disclose relevant material ingredients of Section 405, 406, 420 read with Section 34 IPC. If there is a flavour of civil nature, the same cannot be agitated in the form of criminal proceeding. If there is huge delay and in order to avoid the period of limitation, it cannot be resorted to a criminal proceeding. 19) It is settled law that the essential ingredients for an offence under Section 420, which we have already extracted, is that there has to be dishonest intention to deceive another person. We have already quoted the relevant allegations in the complaint and perusal of the same clearly shows that no such dishonest intention can be seen or even inferred inasmuch as the entire dispute pertains to contractual obligations between the parties. Since the very ingredients of Section 420 are not attracted, the prosecution initiated is wholly untenable. Even if we admit that allegations in the complaint do make out a dispute, still it ought to be considered that the same is merely a breach of contract and the same cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction. Inasmuch as there are number of documents to show that appellant- 4 A482 No. 49627 of 2014 Company had acted in terms of the agreement and in a bona fide manner, it cannot be said that the act of the appellant-Company amounts to a breach of contract.

12. Apart from the above, this Court find that even ingredients of Section 420 I.P.C. are not made out. From the un-controverted facts appearing in the first information report it is Subhash Thakur who spokes to the informant before giving the money to the applicant. It is not the case that Subhash Thakur never spoke to the informant or even subsequently denied speaking to the informant requesting him to hand over the money to the applicant. Accordingly, it cannot be said that any element of cheating is made out as described under Section 420 I.P.C.

13. In view of the foregoing discussion, this Court finds that the allegations contained in the first information report, evenif accepted in their entirety, do not disclose the essential ingredients of the offences under Sections 406, 420, 504 and 506 I.P.C. The material on record reflects that the dispute between the parties is purely of civil nature pertaining to recovery of money, without any element of criminality. The ingredients of dishonest intention at inception, as required under Section 420 I.P.C., or criminal misappropriation as envisaged under Section 406 I.P.C., are wholly absent. Similarly, the allegations regarding criminal intimidation under Section 506 I.P.C. are vague and unsupported. Mere non-repayment of money advanced, without mens rea, cannot give rise to criminal prosecution. Further, the proceedings have remained stayed for more than twelve years and the informant, despite due notice, has chosen not to contest. Continuation of such proceedings would amount to abuse of the process of law and no useful purpose would be served in keeping the saame pending. Accordingly, the proceedings of Case No.1223 of 2014 (State Vs. Ashok Chaudhary @ Baba), under Sections 420, 406, 504, 506 I.P.C., Police Station Khair, District Aligarh, pending before the court of learned A.C.J.M.-Ist, Aligarh, are hereby quashed.The application under Section 482 Cr.P.C. is, accordingly, allowed. (Alok Mathur,J.) September 15, 2025 AS ABHISHEK SINGH ABHISHEK SINGH High Court of Judicature at Allahabad High Court of Judicature at Allahabad