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Neka Alias Nek Ram v. State Of U.P. And Another - APPLICATION U/s 482 No. 10412 of 2005 [2006] RD-AH 11264 (11 July 2006)


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Court No. 41

Criminal Misc. Application No. 10412 of 2005

Neka @ Nek Ram Vs. State of U.P. and another

Hon'ble M. K. Mittal, J.

This is an application filed under Section 482 Cr.P.C. to quash the criminal proceedings in criminal case no. 4326 of 2002 Guddu Versus Neka and others under Sections 406, 506 IPC, P.S. Farah, District Mathura.

Heard Sri B.P. Verma, learned counsel for the applicant learned A.G.A. and perused the record.

Opposite party no. 2 has been served sufficiently  but no counter affidavit has been filed.

The brief facts of the case are that the opposite party no. 2 Guddu filed a complaint alleging that accused Neka came to him on 26.4.2002 in the morning and asked him to give 10 Qs of wheat. The complainant told him to pay Rs. 6000/-. Thereafter Neka again came in the evening at about 4 p.m. along with Nathauli and Kanha and asked for giving 10 Qs of wheat. He also said to make the payment after two months. The complainant gave wheat to Neka. On 26.6.2002, he demanded money but the accused told him to give after 10 days. Again on 9.7.2002 when complainant demanded the money accused told that they had no money and that if any demand was made he would be killed.

The complainant examined himself and his witnesses in support of his complaint and learned Magistrate finding a prima facie case against the accused Neka under Section 406 IPC directed to summon him by order dated 27.11.2002. The applicant filed an application for recall of the order but the same was rejected. Thereafter, he also filed a revision but the same was dismissed as time barred by order dated 14.6.2005.

Learned counsel for the applicant has contended that in this matter the dispute is of civil nature and no offence under Section 406 IPC is made out and that the proceedings are liable to be quashed otherwise it will result in miscarriage of justice and applicant will be put to irreparable loss.

Learned A.G.A. has contended that the accused took wheat and did not make payment and therefore he committed breach of trust and has been rightly summoned in the case and proceedings are not liable to be quashed.

On the request of the learned counsel for the applicant the record of the writ petition no. 5868 of 2002 decided by division bench of this Court on 2.5.2003 has been requisitioned. In that case also there was dispute about the payment of the wheat price purchased by the accused and it has been held in that case that the dispute was of civil nature and the F.I.R. was  quashed.

Learned counsel for the applicant  has also cited the case of D. Dhar Vs. State of Jharkhand 2003 (46) ACC 536 where the Hon'ble Apex Court has held that in the case of failure to pay amount under contract, the dispute is of civil nature.

In the instant case, learned Trial Court has summoned the applicant only under Section 406 IPC as no allegation under Section 506 IPC was found to be prima facie made out. As far as the question of payment of price of wheat is concerned the allegations as made in the complaint clearly show that the accused had promised to pay the price for wheat taken by him. There was no entrustment and if the wheat price has not been paid under the contract the accused cannot be liable under Section 406 IPC. The dispute is of civil nature and the complainant should have taken recourse to that proceedings.

In the circumstances, the contention as made by the learned counsel for the applicant is correct and has to be accepted. Therefore the applicant under Section 482 Cr.P.C. is to be allowed and the criminal proceedings mentioned above are to be quashed.

Application under section 482 Cr.P.C. is allowed. Criminal proceedings in case no. 4326 of 2002 under Section 406 IPC pending in the Court of Judicial Magistrate, Mathura are hereby quashed.

Dated: 11.7.2006



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