Back
2020 Supreme(All) 425
IN THE HIGH COURT OF ALLAHABAD
Karunesh Singh Pawar, J.
Pawan Kumar Tyagi – Applicant
Versus
State Of U.P. Thru. S.S.P., Lko & Another - Opposite Parties
U/S 482/378/407 No. 783 of 2019
Decided On : 05-03-2020
Advocate Appeared:
For the Applicant : Lakshmi Narain, R.D. Pathak, Shamsher Ali, V.K. Tripathi Counsel
Point of Law:
Growing tendency in the business circles to convert purely civil disputes into criminal cases so as to unnecessary harass the common man by giving a criminal colour to civil dispute(s).
Headnote:
Criminal Procedure Code, 1973 – Section 482 – Default of loan – Rejection of criminal complaint on ground of dispute is in Civil nature – Seeking to quash the rejection order – Held, money was entrusted to the private respondent who with a dishonest intention misappropriated it for his own use to the detriment of the petitioner – no offence under Section 406 I.P.C. is made out. The petitioner and the private respondent were known and familiar to each other and because of this, the petitioner gave a loan to the private respondent, therefore, the dispute is purely of civil nature. Hence, no offence under Section 406 is made out. Criminal proceedings cannot be invoked as a short cut for the purely civil remedies as the latter is more time consuming – Allegation with regard to Sections 504, 506 I.P.C., there is a bald assertion in the complaint that the petitioner on being demanded his money was threatened, however, in support thereof, the statement under Sections 200 and 202 CrPC recorded by the trial court have not been filed with the present petition. It appears to be an effort on the part of the petitioner to settle civil dispute and claims which do not involve any criminal offence by applying pressure through criminal prosecution – Petition dismissed
Facts of the Case:
Respondent No.2 Jagdish Saran had borrowed a sum of Rs.2 lacs from the petitioner on 20.11.2010, however, respondent did not repay the borrowed money. On a request being made by the petitioner to repay the money, respondent No.2 abused him and threatened to kill. The petitioner, in this context, submitted an application to the police of police station
Finding of the Court:
Money was entrusted to the private respondent who with a dishonest intention misappropriated it for his own use to the detriment of the petitioner – no offence under Section 406 I.P.C. is made out. The petitioner and the private respondent were known and familiar to each other and because of this, the petitioner gave a loan to the private respondent, therefore, the dispute is purely of civil nature. Hence, no offence under Section 406 is made out. Criminal proceedings cannot be invoked as a short cut for the purely civil remedies as the latter is more time consuming – Allegation with regard to Sections 504, 506 I.P.C., there is a bald assertion in the complaint that the petitioner on being demanded his money was threatened, however, in support thereof, the statement under Sections 200 and 202 CrPC recorded by the trial court have not been filed with the present petition. It appears to be an effort on the part of the petitioner to settle civil dispute and claims which do not involve any criminal offence by applying pressure through criminal prosecution
Result: Petition dismissed
JUDGMENT :
1. The petition has been filed under Section 482 Criminal Procedure Code for quashing order dated 20.11.2017 passed in Complaint Case No.2664/2014 by Addl. Chief Judicial Magistrate, Court No.31, Lucknow and order dated 16.10.2018 passed by Addl. District & Sessions Judge, Court No.9, Lucknow in Criminal revision No.966 of 2017
2. In the petition it has been pleaded that respondent No.2 Jagdish Saran had borrowed a sum of Rs.2 lacs from the petitioner on 20.11.2010, however, respondent did not repay the borrowed money. On a request being made by the petitioner to repay the money, respondent No.2 abused him and threatened to kill. The petitioner, in this context, submitted an application to the police of police station Talkatora, Lucknow and higher police authorities. However, finding that no action was being taken by the police, the petitioner filed a Complaint Case No.2664 of 2014 which has been rejected by the Court below vide order dated 20.11.2017.
Feeling aggrieved, the petitioner filed a Criminal Revision No.966 of 2017 before the Sessions Court, which too has been rejected vide a detailed order dated 16.10.2018 (Annexure-3).
3. Learned counsel for the petitioner has submitted that the learned Magistrate has ignored the averment contained in para 7 of his complaint dated 12.8.2014 filed before the Court below, whereby he had demonstrated that on a phone call, the respondent No.2 used abusive language, with threat to kill him, and rejected the complaint on the ground of the dispute being of civil nature. The respondent No.2 has committed a criminal breach of trust by not repaying the loan taken by him. In this context, learned counsel relied on a judgment of Hon'ble Supreme Court of India reported in (2003)7 SCC 399 Kailash Kumar Sanwatia versus State of Bihar and another.
Learned counsel has submitted that the learned Magistrate as well as the revision Court have committed a manifest error in treating the issue involved in the matter of civil nature.
4. Per contra, learned Additional Government Advocate Mr. S.N. Goswami appearing on behalf of the State has submitted that the orders passed by both the Courts below are justified order(s). The dispute is of civil nature between two private parties as it involves transaction of money. He further submits that none of the ingredients of Section 405 or Section 409 are attracted in the present case.
5. I have heard learned counsel for the petitioner, learned Additional Government and perused the orders passed by the Courts below.
6. A perusal of the complaint dated 12.8.2014 filed under Sections 406, 504, 506 I.P.C., P.S. Tal Katora, district Lucknow shows that in paras 3 to 7 thereof, it has been stated by the petitioner that he gave loan of Rs.2 lacs on 20;11.2010 to the private respondent Jagdish Saran who assured to return it in a month. Thereafter, when the petitioner tried to recover his loan, the private respondent assured him on telephone that he will return the loan. Thereafter again, he assured that since he is about to get some money he would return the loan. Ultimately, the private respondent stopped coming to the petitioner's home and also stopped talking on telephone. Lastly, when the petitioner contacted him from his (private respondent) other telephone number, the latter abused and threatened him.
Contrary to the averments made in the complaint, it has been contended that the money was entrusted to the private respondent who with a dishonest intention misappropriated it for his own use to the detriment of the petitioner.
A further perusal of the averments made in the complaint reveals that the issue between the parties is a pure case of lending and borrowing, may be even a friendly loan. However, by no stretch of imagination, it can be an entrustment.
7. In the case of Kailash Kumar Samwatia (supra), the appellant entrusted a sum of Rs.1,50,200/- to the accused at the instance of another accused/Head Cashier of the State Bank of India and for preparing the drafts
