SMT. MITHLESH AND 5 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                   APPLICATION U/S 482 No. - 22887 of 2021

Smt. Mithlesh And 5 Others
                                                             .....Applicant(s)
                                   Versus

State of U.P. and Another
                                                                .....Opposite

                                                                     Party(s)

Counsel for Applicant(s)      : Girish Kumar Yadav
Counsel for Opposite Party(s) : G.A., Jagannath Singh, Pawan Kumar
                                Yadav, Rishi Yadav, Suresh Singh

Along with :
1. Application U/s 482 No. 18656 of 2022:
    Indra Pal and 3 others
                               Versus
    State of U.P.and another
2. Application U/s 482 No. 21869 of 2021:
    Rajvati Devi and 4 others
                               Versus
    State of U.P..and another


Court No. - 82
                 HON'BLE DR. GAUTAM CHOWDHARY, J.

1. There are three applications under Section 482 Cr.P.C., which have
been filed for quashing of entire proceeding of Criminal Complaint Case
No. 586 of 2019 (Bishan Chandra Vs. Mithlesh and others), under
Sections 420, 467, 468, 471 I.P.C., Police Station Divai, District
Bulandshahar, pending in the court of learned Additional Chief Judicial
Magistrate, Anoopshahar, District Bulandshahar, as well as for setting
aside the order dated 20.03.2021, whereby applicants have been
summoned in the aforesaid complaint case to face the trial.

2. The first application under Section 482 Cr.P.C. bearing No. 22887 of
2021 has been filed by the applicants-Smt. Mithlesh, Jay Prakash, Smt.
Mamta Devi, Panna Lal, Sanjay Singh and Mohar Singh Yadav, whereas,
the second application under Section 482 Cr.P.C. bearing No. 18656 of
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                                2


2022 has been filed by the applicants-Indra Pal, Rajkumar, Mandevi and
Rajwati. The last and third application under Section 482 Cr.P.C. bearing
No. 21869 of 2021 has been filed by the applicants-Rajvati Devi,
Rachana, Sarvesh Yadav, Kunwar Pal Singh and Neeraj Sharma.

3. Since all these applications arising out of same criminal complaint case
filed by the same complainant, therefore, they are being heard and
decided by a common order.

4. Heard learned counsel for the applicants, learned A.G.A. for the State
as well as learned counsel for the opposite party No. 2.

5. The facts giving rise to the present applicant are that earlier the
opposite party No. 2/ complainant filed a civil suit bearing No. 300 of
2012 before the court of Civil Judge (Junior Division), Anoopshahar,
Bulandshahar against seventeen persons for permanent injunction
showing himself to be the absolute owner of the disputed land. After
exchange of pleadings by both the parties the concerned Civil Judge
rejected the application of temporary injunction filed by the opposite
party No. 2 vide order dated 22.07.2013. When the opposite party No. 2
failed to get any interim order in his favour in the aforesaid civil suit, then
the opposite party No. 2 moved an application under Section 156(3)
Cr.P.C. dated 09.3.2017 before the concerned Additional Chief Judicial
Magistrate, who vide its order dated 31.03.2017 rejected the same while
giving observation that the said application relates to some sale deed and
it is a case of pure civil nature and no prima facie case is made out. Being
dissatisfied with the order dated 31.03.2017 the opposite party No. 2 filed
a Criminal Revision No. 275 of 2017 before the revisional court, which
revision was allowed by the learned Additional Sessions Judge vide order
dated 26.02.2019, while setting aside the order dated 31.03.2017 and
remanded the matter before the court concerned for further hearing.
Thereafter, the trial court after recording statements of complainant and
witnesses under Sections 200 & 202 Cr.P.C. summoned the applicants
vide impugned order dated 20.03.2021 to face the trial.

6. Learned counsel for the applicant further submits that for the sake of
arguments, even if the whole prosecution case is taken to be true as has
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                               3


been set up by the complainant, the present dispute is of a civil nature for
which the complainant has the option to avail appropriate remedy at the
appropriate forum, but instead of doing so he has chosen to initiate the
present criminal proceeding only to harass the applicants. It has
vehemently been argued that Hon’ble Apex Court in its several decisions
has time and again deprecated the practice of giving criminal colour to a
civil dispute and has quashed the proceedings on the said ground alone.
Thus, the present proceeding initiated against the applicants is bad in the
eyes of law and is liable to be quashed. In support of his above
submission, learned counsel for the applicants has placed reliance upon
the judgment of Hon’ble Apex Court in the case of Vijay Kumar Ghai
and others Vs. State of West Bengal and others : (2022) 7 SCC 124,
paragraphs-10, 11, 34 & 42 of which are being reproduced herein as
under:

     10. Forum shopping has been termed as disreputable practice
     by the courts and has no sanction and paramountcy in law. In
     spite of this Court condemning the practice of forum shopping,
     Respondent No. 2 filed two complaints i.e., a complaint u/s
     156(3) Cr.P.C before the Tis Hazari Court, New Delhi on
     06.06.2012 and a complaint which was eventually registered as
     FIR No. 168 u/s 406, 420, 120B IPC before PS Bowbazar,
     Calcutta on 28.03.2013. ie., one in Delhi and one complaint in
     Kolkata. The Complaint filed in Kolkata was a reproduction of
     the complaint filed in Delhi except with the change of place
     occurrence in order to create a jurisdiction.

     11. A two-Judge bench of this Court in Krishna Lal Chawla &
     Ors. Vs. State of U.P. & Anr. : (2021) 5 SCC 435 observed that
     multiple complaints by the same party against the same
     accused in respect of the same incident is impermissible. It
     held that Permitting multiple complaints by the same party in
     respect of the same incident, whether it involves a cognizable
     or private complaint offence, will lead to the accused being
     entangled in numerous criminal proceedings. As such he would
     be forced to keep surrendering his liberty and precious time
     before the police and the courts, as and when required in each
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case.

34. There can be no doubt that a mere breach of contract is not
in itself a criminal offence and gives rise to the civil liability of
damages. However, as held by this court in Hridaya Ranjan
Prasad Verma & Ors. Vs. State of Bihar & Anr. : (2000) 4 SCC
168, the distinction between mere breach of contract and
cheating, which is criminal offence, is a fine one. While breach
of contract cannot give rise to criminal prosecution for
cheating, fraudulent or dishonest intention is the basis of the
offence of cheating. In the case at hand, complaint filed by the
Respondent No. 2 does not disclose dishonest or fraudulent
intention of the appellants.

42. The order of the High Court is seriously flawed due to the
fact that in its interim order dated 24.03.2017, it was observed
that the contentions put forth by the Appellant vis-à-vis two
complaints being filed on the same cause of action at different
places but the impugned order overlooks the said aspect and
there was no finding on that issue. At the same time, in order to
attract the ingredients of Section of 406 and 420 IPC it is
imperative on the part of the complainant to prima facie
establish that there was an intention on part of the petitioner
and/or others to cheat and/or to defraud the complainant right
from the inception. Furthermore it has to be prima facie
established that due to such alleged act of cheating the
complainant (Respondent No. 2 herein) had suffered a
wrongful loss and the same had resulted in wrongful gain for
the accused(appellant herein). In absence of these elements, no
proceeding is permissible in the eyes of law with regard to the
commission of the offence punishable u/s 420 IPC. It is
apparent that the complaint was lodged at a very belated stage
(as the entire transaction took place from January 2008 to
August 2009, yet the complaint has been filed in March 2013
i.e., after a delay of almost 4 years) with the objective of
causing harassment to the petitioner and is bereft of any truth
whatsoever.
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7. Learned counsel for the applicants has further placed reliance upon one
other judgment of Hon’ble Apex Court in the case of R. Nagender
Yadav Vs. State of Telangana and another : (2023) 2 SCC 195,
paragraph-17 of which is being reproduced herein as under:

     17. While exercising its jurisdiction under Section 482 of the
     CrPC, the High Court has to be conscious that this power is to
     be exercised sparingly and only for the purpose of prevention
     of abuse of the process of the court or otherwise to secure the
     ends of justice. Whether a complaint discloses a criminal
     offence or not, depends upon the nature of the act alleged
     thereunder. Whether the essential ingredients of a criminal
     offence are present or not, has to be judged by the High Court.
     A complaint disclosing civil transaction may also have a
     criminal texture. But the High Court must see whether the
     dispute which is in substance of a civil nature is given a cloak
     of a criminal offence. In such a situation, if civil remedy is
     available and is in fact adopted, as has happened in the case on
     hand, the High Court should have quashed the criminal
     proceeding to prevent abuse of process of court.

8. Learned counsel for the applicants has also placed reliance upon a
judgment of Calcutta High Court in the case of Fitjee and others Vs.
Sibadatta Mohanty and Another : 2022 SCC OnLine Cal 2162,
paragraphs-18 to 21 are being reproduced herein as under:

     18. The Hon'ble Apex Court in the case of Hridaya Ranjan
     Prasad Verma and others Vs. State of Bihar and another
     reported in (2000) 4 SCC 168 was pleased to observe in
     Paragraph 15.

          "15. In determining the question it has to be kept in
          mind that the distinction between mere breach of
          contract and the offence of cheating is a fine one. It
          depends upon the intention of the accused at the
          time of inducement which may be judged by his
          subsequent conduct but for this subsequent conduct
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                          6


     is not the sole test. Mere breach of contract cannot
     give rise to criminal prosecution for cheating unless
     fraudulent or dishonest intention is shown right at
     the beginning of the transaction, that is the time
     when the offence is said to have been committed.
     Therefore it is the intention which is the gist of the
     offence. To hold a person guilty of cheating it is
     necessary to show that he had fraudulent or
     dishonest intention at the time of making the
     promise. From his mere failure to keep up promise
     subsequently such a culpable intention right at the
     beginning, that is, when he made the promise cannot
     be presumed."

19. Applying the dictum to the instant factual matrix, it appears
that the ingredients of having and dishonest fraudulent
intention under Section 420 is not made out in the case in hand.

20. In Indian Oil Corporation Vs. NEPC India Limited and
others reported in (2006) 6 SCC 736 it was observed by the
Apex Court in paragraph 13.

     "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
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          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."

     21. The Apex Court on various instances expressed its
     disapproval for imparting criminal colour to a civil dispute,
     made merely to take advantage of a relatively quick relief
     granted in a criminal case in contrast to a civil dispute. Such an
     exercise is nothing but an abuse of the process of law which
     must be discouraged in its entirety and as such, the impugned
     proceeding being CS/96841 of 2018 under Sections 420/34 of
     the Indian Penal Code pending before the learned Metropolitan
     Magistrate, 8th Court, Calcutta stands quashed.

9. Learned counsel for the applicants, while placing reliance upon the
above judgments has lastly argued that in the light of above, the dispute is
purely civil in nature regarding execution of sale deed, for which
complainant has remedy file cancellation of those sale deeds, therefore,
no offence under Sections 420, 467, 468, 471 I.P.C. is made out against
the applicants and the present proceeding is not sustainable in the law and
the same is liable to be quashed.
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                                    10. Learned A.G.A. for the State as well as learned counsel for the
                                    complainant submit that there appears no illegality in the impugned
                                    summoning order. The present dispute purely criminal nature as the
                                    applicants had cheated the opposite party No. 2. The court concerned has
                                    rightly summoned the applicants after considering the entire contents of
                                    complaint as well as after considering the statements recorded under
                                    Sections 200 & 202 Cr.P.C., therefore, all these three applications filed
                                    under Section 482 Cr.P.C. may be dismissed with costs.

                                    11. After having heard the learned counsel for the parties and after having
                                    gone through the entire record including the above expositions of law of
                                    Hon’ble Apex Court, this Court is of the view that when the Apex Court
                                    on various instances has expressed its disapproval for imparting criminal
                                    colour to a civil dispute, such an exercise is nothing but an abuse of the
                                    process of law, therefore, there is no reason to continue with the present
                                    proceeding initiated against the applicants.

                                    12. Thus, in view of above, it would be appropriate to quash the
                                    impugned proceedings initiated against the applicants.

                                    13. Accordingly, all the above mentioned three applications filed under
                                    Section 482 Cr.P.C. are allowed. The entire proceedingS of Criminal
                                    Complaint Case No. 586 of 2019 (Bishan Chandra Vs. Mithlesh and
                                    others), under Sections 420, 467, 468, 471 I.P.C., Police Station Divai,
                                    District Bulandshahar, pending in the court of learned Additional Chief
                                    Judicial Magistrate, Anoopshahar, District Bulandshahar, so far as it
                                    relates to the present applicants, are hereby quashed.

                                    14. However, the opposite party No. 2 is at liberty to avail other remedy
                                    before appropriate forum. It is also open for the civil court to decide the
                                    civil suit pending between the parties on its own merits and on the basis
                                    of evidence that may be led by both the sides.



                                                                                 (Dr. Gautam Chowdhary,J.)
                                    April 20, 2026
                                    Mustaqeem.




Digitally signed by :-
MOHD MUSTAQEEM KHAN
High Court of Judicature at Allahabad