Dismissed

Vivek Kumar Tiwari v. State of U.P. and 2 Others

Allahabad HC20 Apr 2023A227/3664/2023

Case brief

AI extract

What is this about?

High Court disposed of writ under Article 227 challenging a Magistrate's order treating a Section 156(3) Cr.P.C. application as a complaint case. Because the petitioner had knowledge of the transaction and evidence, the Court found no error and dismissed the petition.

What did the court decide?

The writ petition was dismissed due to lack of merits as no illegality was found in the impugned order.

Vivek Kumar Tiwari Vs State of U.P. and 2… — Civil Procedure and Limitation | Allahabad HC (2023)

¶1

Court No. - 88

¶2

Case :- MATTERS UNDER ARTICLE 227 No. - 3664 of 2023

¶3

Petitioner :- Vivek Kumar Tiwari Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Manish Kumar Singh,B.N.Singh Counsel for Respondent :- G.A.

¶4

Hon'ble Vikram D. Chauhan,J.

¶5

It is submitted by learned counsel for the petitioner that the petitioner had filed an application under Section 156(3) Cr.P.C. before the court below for lodging of FIR. However, the court concerned has treated the aforesaid case as a complaint case and thereafter has proceeded with the matter. It is submitted that the petitioner and the private respondents entered into an agreement for sale and petitioner has already paid Rs. 16,00,000/- by cheque in advance to respondent no.2 and after the payment by cheque, the opposite party did not execute the sale deed and in this respect, when the opposite party was called upon to execute the sale deed, they have abused and thereafter have refused to execute the sale deed and as such the compliant case was lodged.

¶6

Learned counsel for the petitioner submits that the court below committed illegality and proceeded to treat application under Section 156(3) Cr.P.C. as complaint case. He submits that in the present case, the investigation was required and the finding returned by the court below that the petitioner has knowledge of the proceedings and therefore the case was treated as a complaint case, is perverse.

¶7

The petitioner has also filed a revision and the revision has also been rejected by the court concerned. It is to be seen that in the present case the cheque was for sale deed and advance cheque was issued for Rs. 16,00,000/- by the petitioner from his bank account. According to the learned counsel for the petitioner the cheque was encashed. However, the respondent no.2 has not executed the sale deed. The transaction in the present case is with regard to the sale of the property where the payments have been made through cheque.

¶8

Learned counsel for the petitioner does not dispute the law that the Magistrate has discretion to treat an application under Section 156(3) as a complaint case. However the submission of learned counsel for the petitioner is that the discretion exercised by the

¶9

Magistrate concerned is not in accordance with law. The findings recorded by the Magistrate concerned in the impugned order dated 20.05.2022 is to the effect that the petitioner have knowledge with regard to the transactions and the conduct of the parties and as such the evidence can be produced by the petitioner. It is true that the transaction with regard to the sale was within the special knowledge of the petitioner and the petitioner has also the evidence with regard to payment of Rs. 16,00,000/- which are paid by a cheque from the account of the applicant.

¶10

In the Bankers' Book Evidence Act, there is a presumption of correctness of the statement of account issued by the bank. Since the petitioner have the knowledge and all the documents with regard to the aforesaid sale transactions and the subsequent developments are within the reach of petitioner then in the opinion of the Court, the court below has committed no error in law by treating the application under Section 156(3) Cr.P.C. as a complaint case. In fact, the petitioner has been given liberty directly by the court concerned to prosecute the accused persons.

¶11

Since there is no illegality, the present writ petition lacks merits and is hereby dismissed.

¶12

Order Date :- 20.4.2023 Sumit Kumar

¶13

Digitally signed by :- SUMIT KUMAR High Court of Judicature at Allahabad

Vivek Kumar Tiwari v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Vivek Kumar Tiwari v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Munnoo Vs State of U.P.

Kadir Vs State of U.P.

Sohan Singh Vs State of U.P.

Rihan Vs State of U.P.

Mohd. Rahees Vs State of U.P.

Anoop Kumar Savita @ Anoop Srivastava Vs State of U.P.