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ASHOK KUMAR AND OTHERS versus SHIV MANGAL SINGH AND OTHERS

High Court of Judicature at Allahabad

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Ashok Kumar And Others v. Shiv Mangal Singh And Others - APPLICATION U/s 482 No. 13723 of 1987 [2007] RD-AH 4629 (16 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No. 48)

Criminal Misc. Application  No. 13723   of 1987

***

1.Ashok Kumar son of Sri Bijnath.

2. Rakesh Kumar son of Shri Baijnath.

3. Shambhu Dayal son of Shri Ishwari Prasad.

All Resident of Ishwari Prasad.

Sirsaganj, Police Station Sirsaganj,

Mainpur. .......   Applicants- Accused.

Vs.

1.Shiv Mangal Singh, Vijari Bahadur Commission

Agents , Brown ganj, Ram Leeal Road, Etawah,

Through Virendra Singh son of Shri Vijai Bahadur,

Resident of House No. 51 , Mohalla Purvai Tola,

Police Station Kotwali, District Etawah ( Partner).

2.The State of U.P....... Opp.Party.

****

Hon'ble Barkat Ali Zaidi, J

1.Opp. Party No. 2-complainant is  an Etawah based firm dealing in  food grains while M/S Bhagwati Udyog is Manpuri based firm with its partners  accused Ashok and Ramesh.

2.They  alongwith one Shambhu Dayal. have come to  this Court  under Section 482 Cr.P.C. for termination of Criminal Proceedings  in Criminal Complaint case No. 1055 of 1986 filed by Opposite party No. 1 in which they alongwith two others Prem Narayan and Ram Swaroop  of Calcutta were summoned by Additional Munsif Magistrate, Etawah under Section 420 I.P.C.

3.The allegation against applicants Ashok and Rakesh  was that they purchased food grains for their firm for a sum of Rs. 36069.90 on six different  dates ranging from 9.10.82 to 13.10.82 and gave a Hundi towards the aforenoted transaction amounting to  Rs.25,000/- on 29.10.82, which was to be honoured by accused  Prem Narain and Ram Swaroop of Kolkata for Mainpuri firm, but  was not honoured. The grouse of the complainant is that they were deceived and cheated for that amount of Rs. 25,000/-.

4.I have heard Sri S.V.Goswami, Advocate for the applicants and Sri A.K.Tiwari for Opposite Party No. 1.

5. The contention of counsel for the applicants is that the complaint mentions numerous commercial and financial transactions in between the parties and the case is of civil nature. As against it, the contention of the complainant counsel is that the  Opp. Party No. 2 complainant has been cheated because the Hundi issued by the accused Mainpuri firm was dishonoured by accused Prem Narain and Ram Swaroop of Kolkata and accused Ashok by filing a bond stood a guarantor and on the pretext that original  Hundi was lost  obtained the delivery of goods  which was subject matter of the Hundi without making any payment.

6. The aforesaid facts clearly carve out that the dispute between the parties is essentially of a civil nature. There  were  various commercial transactions between  the parties and the payments made and unmade and  the entire  gamut of sequence   of the transaction clearly demonstrates that  the  case of  criminal cheating is made out.

7. There is a growing tendency these days to bring civil cases in the criminal  arena with a view to exert pressure on the party concerned so that it may come to terms, and Courts have, therefore, to be vary in accepting such cases on the criminal side.  The Supreme Court in the case of  M/s Indian Oil Corporation Vs. M/s NEPC India Ltd. and others, J.T. 2006 (6) S.C., 474  has itself noted this tendency  and has cautioned the Courts to be watchful so that Civil Cases are  not brought into the Criminal Courts. The mere fact that the averments have been made which may  carve out a criminal case and the requisite  ingredients of the offence have been enumerated should not be considered sufficient to conclude that a criminal  offence has really been made out. The entire conspectus  of facts  and circumstances  surrounding the dispute has to be visualized as a whole. It may also be noted that Civil Suit about these transactions between the parties  is already pending in the Civil Court.  Looking  into the transactions and the events as they have transpired the conclusion is inescapable that the dispute is  essentially of a civil nature. The application under Section 482 Cr.P.C.  is, therefore, allowed  and the proceedings against the applicants shall stand terminated.

Dated: 16.3.2007

n.u.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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