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Kanhaiya Lal Tiwari v. State Of U.P. And Others - APPLICATION U/s 482 No. 6773 of 2005 [2006] RD-AH 12375 (27 July 2006)


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Court NO. 2

Criminal Misc. Application No. 6773 of 2005

Kanhaiya Lal Tiwari................................................Applicant


State of U.P. and another..............................Opposite parties


Hon'ble Amar Saran, J.

Heard learned counsel for the applicant and learned Additional Government Advocate.

This application has been filed for quashing of the charge sheet dated 26.12.1995 arising out of case crime No. 474 of 1995, under Sections 419/420467/468 IPC, police station Khuldabad, district Allahabad, in respect of which case No. 2782 of 2002 (State Vs. Kanhaiya Lal Tiwari ) is pending in the court of Special Chief Judicial Magistrate, Allahabad.

The allegations in the FIR dated 19.10.1995, lodged by the informant Arun Kumar were that in the year 1993 he had entered into an agreement with the applicant Kanhaiya Lal Tiwari for the sale of some property in favour of his son Sauhard Praveen. He thereafter paid Rs. 10,000/- and subsequently Rs. 40,000/- to the applicant for transfer of the land, but the applicant refused to transfer the land and in fact in the year 1994, he transferred the plot in a dishonest manner to some other person and forfeited Rs. 50,000/-, which was advanced to the applicant by the complainant. The applicant even began to quarrel when the complainant asked for the return of the sums.

It is argued by the learned counsel for the applicant that the dispute between the parties is essentially of civil nature and the complainant had a remedy by way of filing of the civil suit for specific performance of the contract and that no offence of cheating was disclosed.

I noted that the applicant had even moved an application before the IX Additional Chief Judicial Magistrate, Allahabad for not framing the charge, which was rejected on 27.7.2000. Thereafter the charge was framed against the applicant on 23.3.2003. Then the applicant preferred criminal revision, which was dismissed on 11.10.2004 by the Additional Sessions Judge, Court No. 19, Allahabad.

Learned counsel for the applicant has placed reliance in the decision of Nageshwar Prasad Singh alias Sinha Vs. Narain, 1998 UP Criminal Ruling 625 (SC). The aforesaid case is clearly distinguishable. In the said case the complainant was an Advocate, the accused, the seller of the land, for backing out of the crime for sell of certain property situated in the town Patna, some earnest money had been paid by the complainant, but the balance amount was to be paid in the manner indicated in the deed. However, significantly, it was observed by the Apex Court that " the most important terms in the deed was that possession of the plot would stand transferred to the complainant and the possession in fact was delivered to the complainant over which they have made certain construction."

In was in those situation that the Hon'ble Apex Court observed that as the total land involved in the bargain had already passed over to the complainant-respondent and it was in his possession, in such a situation the only person, who would be interested in dealing the matter in compliance of bargain would have been the complainant, who may have been avoiding making the full payment. In such a situation, the Court observed that the breach thereof was civil in nature and not criminal and looking to the malicious nature of prosecution, the Court had even directed that the complainant-respondent to pay compensatory costs of Rs. 10,000/- to the accused for vexatious  proceedings.

In the present case, the applicant has not denied receiving sums of money from the complainant. He has also not denied transferring the land to someone else. It is unlike Nageshwar Prasad Singh (Supra), it is not a case where the land has been transferred to the complainant where the  applicant wanted to cheat the complainant from the beginning or whether such an intention arose subsequently, are all matters to be investigated by the trial court during the trial and the Chief Judicial Magistrate, which refused to discharge the applicant and the revisional court, which had dismissed the revision against the order framing the charges could not have been said to have acted in an illegal manner. There was also no significant delay in lodging of the FIR, which was lodged in 1995 after the applicant had transferred the land to another person even though he had received Rs. 50,000/- On the contrary, it is the filing of the application in 2005 when the FIR was lodged on 19.10.1995 when the order refusing to discharge the applicant was passed  on 27.7.2000 and when the charge was framed on 23.3.2003 and the dismissal against the aforesaid order framing of the charge was passed by the Additional Sessions Judge on 11.10.2004, which is highly belated.

In this view of the matter, there is no force in this application. It is accordingly dismissed.

Stay order granted earlier is vacated.

The trial court is directed to proceed with the matter expeditiously.

Office is directed to communicate this order to the trial court within two weeks.

Dated: 27.7.2006



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