NIDHI SAXENAversusSTATE OF U.P. AND 3 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD

         MATTERS UNDER ARTICLE 227 No. - 4978 of 2025

Nidhi Saxena
                                                            .....Petitioner(s)
                                  Versus
State Of U.P. And 3 Others
                                                          .....Respondent(s)

Counsel for Petitioner(s)                  :   Aktar Ahmed Siddiqui
Counsel for Respondent(s)                  :   G.A.

Court No. - 74
                    HON'BLE DEEPAK VERMA, J.

1. Heard learned counsel for the petitioner, learned A.G.A. for the State-
Respondents and perused the record.

2. Present application has been filed by the petitioner with the prayer to
set aside the judgment and order dated 10.03.2025 passed by learned
Additional Session Judge, Court No. 43, Shahjahanpur, passed in
Criminal Revision No. 206 of 2024 (Nidhi Saxena Versus State of U.P.
and others) and order dated 03.08.2024 passed by the Chief Judicial
Magistrate, Court No. 14, Shahjahanpur in Misc. Case No. 923 of 2023
(Km. Nidhi Saxena Versus Sushant Saxena and others) under Section
156(3) Cr. P.C., Police Station Sadar Bazar, District Shahjahanpur.

3. Facts in brief are that father of petitioner was employed in a Bank. He
deposited Rs. 38,85,205.99/- in P.P.F. Account in the Bank. He died on
30.08.2020. After his death, petitioner and her mother Smt. Veena Saxena
and opposite party no.2-Sushant Saxena, who is the real brother of the
petitioner, names got mutated in place of deceased. Petitioner and her
mother consented no objection in favour of son Sushant Saxena, hence,
son Sushant Saxena became nominee with right to withdrawal of money.
Money was withdrawn by the opposite party no.2 from the bank.
Thereafter opposite party no.2 refused to give share of petitioner and her
mother, then dispute arose between them in regard to money. Thus the
opposite party no.2 cheated to her and her mother and committed offence
of breach of trust. In this respect petitioner moved an application against
him before the In-charge of Police Station concerned for lodging the first
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information report, but the first information report was not registered,
then petitioner moved an application before the Superintendent of Police,
Shahjahanpur on 12.06.2023. When the first information could not be
registered against the opposite party no.2 then the petitioner filed an
application under Section 156(3) Cr. P.C. before the C.J.M.,
Shahjahanpur for direction to register the first information report against
the opposite party no.2. In the aforesaid application, learned trial court
illegally without going though the record, rejected the application of
petitioner vide order dated 03.08.2024 holding nature of the case is purely
civil nature. Against the aforesaid order dated 03.08.2024 petitioner filed
a revision before the learned Session Judge, Shahjahanpur, which was
rejected vide order dated 10.03.2025, hence the present application.

4. Learned counsel for the applicant submits that applicant is daughter of
Sarvesh Kumar Saxena, who was an employee in a Bank. After his death,
she and her mother were made nominee in the P.P.F. account of her
father. He also argued that learned trial court as well as learned Session
Judge without application of its judicial mind rejected the application of
the petitioner under Section 156(3) Cr. P.C. vide orders dated 03.08.2024
and 10.03.2025 by saying that there is no allegation and no abusing
language intimidated by the opposite party no.2 against the applicant,
whereas fact of the matter is that opposite party no.2 cheated the applicant
and her mother.

5. Per contra, learned A.G.A. as well as learned counsel for the opposite
parties opposed the arguments raised by applicant's counsel and submits
that learned trial court as well as learned Session Judge have committed
no illegality in rejecting the application under Section 156(3) Cr. P.C. of
the applicant and there is no abuse of the process of the Court. The order
passed by the learned learned trial court as well as learned Session Judge
are just and proper and no interference is required in the orders impugned
in the present case.

6. Reliance has been placed on judgment in the case of Phool Devi Versus
State of U.P. and others (Criminal Appeal No. 11904 of 2024), decided
on 11.05.2024 reported in 2026 SCC OnLine All 16101. Relevant para
no. 9 and 12 dare being extracted below:-
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"9. As such, it is apparent that Magistrate is not bound to pass order of investigation by police, even if

such application discloses cognizable offence. The Magistrate is required to apply its mind to find out

whether the first information sought to be lodged by the applicant had any substance or not. If the

allegations made in the application under Section 156(3) Cr.P.C. prima-facie appear to be without any

substance, then in such case the Magistrate can refuse to direct registration of the FIR and its

investigation by the police, even if the application contains the allegations of commission of a cognizable

offence. In such case, the Magistrate is fully competent to reject the application. Even in the cases, where

prima facie cognizable offence is disclosed from the averments made in the application under Section

156(3) Cr.P.C., in appropriate case according to facts and nature of the offences alleged to have been

committed, the Magistrate can decline to direct investigation and in such cases the application under

Section 156(3) Cr.P.C. can be treated as complaint, as held by the Division Bench in the case of Sukhwasi

vs. State of U.P. (supra).

12. This Court can also not loose sight of the Three Judges Bench judgment of the Hon'ble Supreme Court

in the Case of Aleque Padamsee v. Union of India (AIR 2007 SC 684), the Full Bench of this Court in

Father Thomas v. State of Uttar Pradesh, passed in Criminal Revision No. 1640 of 2001 decided on

22.12.2010, wherein it has been held that even an application under Section 156(3) Cr.P.C. (now Section

173(4) BNSS) has been rejected, the remedy available to the appellant is to file a complaint case before

the court concerned under Section 190 (1) (a) read with Section 200 of Cr.P.C. [now Section 210(1)(a)

read with Section 223 of BNSS.]"


7. Considering the argument raised by the learned counsel for the
applicant reveals that present dispute in hand between the sister and
brother in regard to getting money left by their father after death. The
allegation in Misc. Application under Section 156(3) Cr. P.C. is that
opposite party no.2 withdrew the amount from the account of father after
manufacturing fabricated documents. The contents disclosed that the
opposite party no.2 was nominee, had right to withdrew the amount from
the account. Over all allegations alleged in the application under Section
156(3) Cr. P.C. disclosed civil nature dispute. The learned trial court as
well as learned revisional court both have rightly rejected the application
under Section 156(3) Cr. P.C.

8. In view of the above, the present writ petition under Section 227 of
Constitution of India lacks merit and is, accordingly, dismissed.



                                                                               (Deepak Verma,J.)
September 8, 2026/T.S.
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Digitally signed by :-
TRIBHUWAN SINGH
High Court of Judicature at Allahabad