High Court · 2025

Applicant :- Mithlesh Kuamr Dwivedi Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Shiv Kumar Yadav,Anuj Srivastava,Mata Prasad Chaturvedi Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J.

1. Heard Sri Shiv Kumar Yadav, learned counsel for the applicant and the learned A.G.A. for the State.

2. Present petition under Section 482 Cr.P.C. (now 528 BNSS) has been filed assailing order dated 28.7.2023 passed by Additional Sessions Judge/Special Judge, POCSO Act, Lucknow whereby in criminal revision No.591 of 2018 preferred by opposite party No.2 he has set aside the summoning order dated 7.7.2018 passed by Chief Judicial Magistrate/Special Judge, Lucknow and remanded the matter back for fresh consideration after hearing the parties.

3. It has been submitted that a complaint under Section 156 (3) Cr.P.C. was preferred by the petitioner in the court of Additional Chief Judicial Magistrate, CBI, A.P., Lucknow on 21.3.2016 alleging that opposite party No.2 had entered into an agreement with father of the complainant (petitioner) and his uncle Nand Kishore wherein the land situated at khasra No.151 and 203 was given on lease to opposite party No.2 for a period of 17 years for consideration of Rs.78,800/- which was duly paid to the father of the complainant. It has been stated that because father of the complainant was illiterate, he was not made aware of the terms of the agreement and, in fact, opposite party No.2 got sale registered in his favour despite the fact that the said land was given on lease only for a period 17 years. It has further been submitted that father of the complainant died on 21.8.2010 and when the complainant came to know about the said facts at the stage of having his name mutated in the revenue records, he came to know about the fraud committed by opposite party No.2 and accordingly, has filed the said complaint Under Sections 406, 420, 467, 468, 471, 504 and 506 IPC.

4. The trial court by means of order dated 7.7.2018 duly considered the contents of the complaints as well as statements made under Sections 200 and 202 Cr.P.C. and by an extremely cryptic manner without even detailing the basic facts of the said case, issued summons to opposite party No.2.

5. The order dated 7.7.2018 was assailed in revision before Additional District and Sessions Judge/Special Judge, POCSO Act, Lucknow. The said revision was allowed by means of order dated 28.7.2023 and while allowing the said revision the revisional court has firstly recorded the fact that the the despite notice no one has appeared on behalf of the opposite parties (petitioner) and has duly considered the fact that there was concealment of the fact that on earlier occasion a first information report with regard to the same offence and during the inquiry/investigation the court did not find that any offence was made out and also considered the fact that the dispute was in the nature of a civil dispute and consequently final report was filed but the complainant/petitioner without disclosing the aforesaid facts filed application under Section 156 (3) Cr.P.C. The court found favour in the grounds raised by the opposite party No.2 to the effect that the agreement was entered into between opposite party No.2 and father of the complainant and uncle of the complainant and it is only the father of the complaint, who has died while the uncle, who was the signatory to the said agreement, was still alive and he is not protesting and is not aggrieved by the agreement in any manner whatsoever while the applicant has alleged fraud.

6. Apart from the above, the court finds that the matter was in the nature of civil dispute when the opposite party claimed the ownership of the land on the basis of the agreement entered into father of the petitioner and his uncle while it was clear allegations of the petitioner that the agreement was obtained by fraud considering the fact that father of the petitioner was illiterate and it is in the aforesaid circumstances that the court was of the considered view that the impugned order was cryptic in nature and had not considered that essentially the dispute was civil in nature and remanded the matter to the trial court for consideration of the matter afresh after hearing both the parties.

7. Learned counsel for the petitioner while assailing the order dated 28.7.2023 has firstly submitted that the revisional court had allowed the revision without giving an opportunity of hearing to the petitioner. In this regard, we have perused the order sheet which has been annexed by the petitioner and found that the notices were issued to the petitioner on 11.10.2018. Subsequently, we find that in the order dated 16.3.2019 the court found the service of summons on the opposite parties to be sufficient and further the order dated 2.8.2019 indicates that even the petitioner/complainant was duly represented in as much as the order sheet dated 2.9.2019 has recorded appearance of counsel for the opposite parties.

8. This Court in Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 has held as under:- 13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. 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. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. 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. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] this Court observed: (SCC p. 643, para 8) "It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." 9. In the aforesaid facts, we find that the first ground raised by the petitioner that the order was passed without giving any opportunity of hearing is not made out and from the order sheet clearly as the petitioner was firstly duly served and they had put in appearance before the revisional court.

10. Apart from the above, we have also perused the record as well as summoning order dated 17.7.2018 and find that even basic and full facts have not been considered by the trial court which were stated in the complaint and which were available in the statement under Sections 200 and 202 Cr.P.C. We also find that the dispute in the present case pertains to legal documents which according to the petitioner was leased out for a period of 17 years while on the other hand the same was being claimed as a will deed by which all the rights in the property stood transferred to opposite party No.2. Dispute in the said nature can only be adjudicated by the civil court of competent jurisdiction and not in a criminal prosecution. It is in aforesaid circumstances that we find that the revisional court has rightly appreciated the facts by remanding the matter back to the trial court for consideration afresh.

11. On ground raised by the petitioner that he has not been heard, this Court has asked the learned counsel for the petitioner to take all the grounds assailing the revisional court before this Court and accordingly all the grounds have been duly considered by this Court as raised by learned counsel for the petitioner and we do not find any ground for interference in the order of the revisional court dated 28.7.2023.

12. However, the petitioner would be at liberty to raise all the grounds in the remand proceedings before Additional Chief Judicial Magistrate, Ayodhya Prakaran, Lucknow. In light of the above, the petition is devoid of merits and is accordingly dismissed. Order Date :- 16.4.2025 RKM. (Alok Mathur, J.) RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench

Applicant :- Mithlesh Kuamr Dwivedi Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Applicant :- Shiv Kumar Yadav,Anuj Srivastava,Mata Prasad Chaturvedi Counsel for Opposite Party :- G.A. Hon'ble Alok Mathur,J.

1. Heard Sri Shiv Kumar Yadav, learned counsel for the applicant and the learned A.G.A. for the State.

2. Present petition under Section 482 Cr.P.C. (now 528 BNSS) has been filed assailing order dated 28.7.2023 passed by Additional Sessions Judge/Special Judge, POCSO Act, Lucknow whereby in criminal revision No.591 of 2018 preferred by opposite party No.2 he has set aside the summoning order dated 7.7.2018 passed by Chief Judicial Magistrate/Special Judge, Lucknow and remanded the matter back for fresh consideration after hearing the parties.

3. It has been submitted that a complaint under Section 156 (3) Cr.P.C. was preferred by the petitioner in the court of Additional Chief Judicial Magistrate, CBI, A.P., Lucknow on 21.3.2016 alleging that opposite party No.2 had entered into an agreement with father of the complainant (petitioner) and his uncle Nand Kishore wherein the land situated at khasra No.151 and 203 was given on lease to opposite party No.2 for a period of 17 years for consideration of Rs.78,800/- which was duly paid to the father of the complainant. It has been stated that because father of the complainant was illiterate, he was not made aware of the terms of the agreement and, in fact, opposite party No.2 got sale registered in his favour despite the fact that the said land was given on lease only for a period 17 years. It has further been submitted that father of the complainant died on 21.8.2010 and when the complainant came to know about the said facts at the stage of having his name mutated in the revenue records, he came to know about the fraud committed by opposite party No.2 and accordingly, has filed the said complaint Under Sections 406, 420, 467, 468, 471, 504 and 506 IPC.

4. The trial court by means of order dated 7.7.2018 duly considered the contents of the complaints as well as statements made under Sections 200 and 202 Cr.P.C. and by an extremely cryptic manner without even detailing the basic facts of the said case, issued summons to opposite party No.2.

5. The order dated 7.7.2018 was assailed in revision before Additional District and Sessions Judge/Special Judge, POCSO Act, Lucknow. The said revision was allowed by means of order dated 28.7.2023 and while allowing the said revision the revisional court has firstly recorded the fact that the the despite notice no one has appeared on behalf of the opposite parties (petitioner) and has duly considered the fact that there was concealment of the fact that on earlier occasion a first information report with regard to the same offence and during the inquiry/investigation the court did not find that any offence was made out and also considered the fact that the dispute was in the nature of a civil dispute and consequently final report was filed but the complainant/petitioner without disclosing the aforesaid facts filed application under Section 156 (3) Cr.P.C. The court found favour in the grounds raised by the opposite party No.2 to the effect that the agreement was entered into between opposite party No.2 and father of the complainant and uncle of the complainant and it is only the father of the complaint, who has died while the uncle, who was the signatory to the said agreement, was still alive and he is not protesting and is not aggrieved by the agreement in any manner whatsoever while the applicant has alleged fraud.

6. Apart from the above, the court finds that the matter was in the nature of civil dispute when the opposite party claimed the ownership of the land on the basis of the agreement entered into father of the petitioner and his uncle while it was clear allegations of the petitioner that the agreement was obtained by fraud considering the fact that father of the petitioner was illiterate and it is in the aforesaid circumstances that the court was of the considered view that the impugned order was cryptic in nature and had not considered that essentially the dispute was civil in nature and remanded the matter to the trial court for consideration of the matter afresh after hearing both the parties.

7. Learned counsel for the petitioner while assailing the order dated 28.7.2023 has firstly submitted that the revisional court had allowed the revision without giving an opportunity of hearing to the petitioner. In this regard, we have perused the order sheet which has been annexed by the petitioner and found that the notices were issued to the petitioner on 11.10.2018. Subsequently, we find that in the order dated 16.3.2019 the court found the service of summons on the opposite parties to be sufficient and further the order dated 2.8.2019 indicates that even the petitioner/complainant was duly represented in as much as the order sheet dated 2.9.2019 has recorded appearance of counsel for the opposite parties.

8. This Court in Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 has held as under:- 13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. 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. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. 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. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] this Court observed: (SCC p. 643, para 8) "It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice." 9. In the aforesaid facts, we find that the first ground raised by the petitioner that the order was passed without giving any opportunity of hearing is not made out and from the order sheet clearly as the petitioner was firstly duly served and they had put in appearance before the revisional court.

10. Apart from the above, we have also perused the record as well as summoning order dated 17.7.2018 and find that even basic and full facts have not been considered by the trial court which were stated in the complaint and which were available in the statement under Sections 200 and 202 Cr.P.C. We also find that the dispute in the present case pertains to legal documents which according to the petitioner was leased out for a period of 17 years while on the other hand the same was being claimed as a will deed by which all the rights in the property stood transferred to opposite party No.2. Dispute in the said nature can only be adjudicated by the civil court of competent jurisdiction and not in a criminal prosecution. It is in aforesaid circumstances that we find that the revisional court has rightly appreciated the facts by remanding the matter back to the trial court for consideration afresh.

11. On ground raised by the petitioner that he has not been heard, this Court has asked the learned counsel for the petitioner to take all the grounds assailing the revisional court before this Court and accordingly all the grounds have been duly considered by this Court as raised by learned counsel for the petitioner and we do not find any ground for interference in the order of the revisional court dated 28.7.2023.

12. However, the petitioner would be at liberty to raise all the grounds in the remand proceedings before Additional Chief Judicial Magistrate, Ayodhya Prakaran, Lucknow. In light of the above, the petition is devoid of merits and is accordingly dismissed. Order Date :- 16.4.2025 RKM. (Alok Mathur, J.) RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench