Allowed

Kishan Chandra v. State of Uttarakhand and Anr.

Uttarakhand HC4 Mar 2014C482/147/2010

Case brief

AI extract

What is this about?

The High Court of Uttarakhand quashed the summoning order and criminal proceedings against the applicant for cheating. The court held that the dispute arose from a civil transaction with a difference in loan calculation, making it a civil matter rather than a criminal one.

What did the court decide?

Summoning order dated 23.03.2009 and proceedings of criminal complaint case no. 338 of 2008 were quashed.

Kishan Chandra Vs State of Uttarakhand… — Contract and Commercial Disputes | Uttarakhand HC (2014)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application (C-482) No. 147 of 2010

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Kishan Chandra^{……. Applicant} versus State of Uttarakhand and another ……. Respondents

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Mr. Sandeep Tandon, Advocate with Ms. Sadhana Nishad, Advocate for the applicant. Mr. Sohail Ahmad Siddiqui, AGA with Ms. Mamta Joshi, Brief Holder for the State / respondent no. 1. Mr. Pawan Mishra, Advocate for respondent no. 2.

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U.C. Dhyani, J. (oral)

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The applicant, by means of present application / petition under Section 482 of Cr.P.C., seeks to quash the summoning order dated 23.03.2009, as also the proceedings of criminal complaint case no. 338 of 2008 (75 of 2008), Awtar Singh vs Kishan Chandra, relating to police station, Vikas Nagar, District Dehradun, for the offences punishable under Sections 420, 506 of IPC, pending in the court of Judicial Magistrate, First Class, Vikas Nagar, Dehradun.

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Complainant (respondent no. 2 herein) filed a criminal complaint case against the accused (applicant herein) in the court of Special Judicial Magistrate I, Dehradun. Statement of the complainant was recorded under Section 200 of Cr.P.C. Statements of Inderjeet Singh and Dharam Prakash were recorded under

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Sections 202 of Cr.P.C. After having found a prima facie case against the accused, he was summoned to face the trial for the offences punishable under Sections 420, 506 of IPC, vide order dated 23.03.2009, passed by learned Judicial Magistrate, First Class, Vikas Nagar, Dehradun. Aggrieved against the same, present application under Section 482 of Cr.P.C. was filed.

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According to the complainant, accused was his old acquaintance and was registered owner of a truck. Complainant wanted to do some business. Accused advised him to run a transport business. Accused also advised the complainant to purchase the truck (of which the accused was owner). Accused offered to sell the truck to the complainant for a consideration of Rs. 4,96,000/-. He also told that the truck was under loan of Tata Motors Ltd. and installments of Rs. 2,93,200/- were to be paid. Believing such statement of the accused, the complainant accepted the offer of the accused and purchased the truck for Rs. 4,96,000/- from him. A sum of Rs. 2,02,800/- was paid to the accused on 08.06.2006. It was also agreed that the balance of Rs. 2,93,200/- was to be paid to Tata Motors Ltd in the monthly installments of Rs. 15,050/-. The sale deed was executed on 08.06.2006.

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When the complainant inquired from the Finance Company, it was revealed that when the accused sold the truck to the complainant on 08.06.2006, the outstanding loan over the truck was Rs. 4,21,400/-, instead of Rs. 2,93,200/-. According to the complainant, the accused told him a lie and prompted him to purchase the truck by falsely stating him that the outstanding loan was Rs. 2,93,200/- only. The complainant was compelled to pay to Tata Motors a total sum of Rs. 4,21,400/- instead of Rs. 2,93,200/-, as disclosed by the accused. In this way, accused received Rs. 1,28,200/- more from him. The accused, therefore, had an intention of cheating from the very beginning. A registered notice was given by the complainant to the accused through his counsel to refund him a sum of Rs. 1,28,200/-, but the accused did not pay the same, despite service of such notice. The documents pertaining to the sale of the truck were brought on record by the complainant. His witnesses corroborated his statement under Section 202 of Cr.P.C.

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Even if the entire complaint story is taken to be correct, the fact remains that prima facie no offence under Section 420 of I.P.C. was made out against the accused. It is purely a dispute of civil nature. One party agreed to sell a truck for certain sum. The other party agreed to purchase the truck on said terms. Sale deed was executed in respect of sale of such truck. If there was difference in the loan amount, which the

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complainant was required to pay to the Finance Company, that hardly makes it a case of cheating. If the complainant was required to pay Rs. 1,28,200/more to the Finance Company, he could institute a civil suit against the accused for realization of such money. It is predominantly a dispute of civil nature, based on calculation, remedy of which lies in the civil court, and not by way of instituting a criminal complaint against the accused.

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It is, no doubt, true that if there is a civil dispute between the parties, criminal intention can also be there, but the Courts exercising inherent jurisdiction are required to see what is the predominant nature of the dispute? If the dispute is predominantly civil in nature, then, this Court is afraid, criminal proceedings cannot be instituted against the accused.

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Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986 , has held that where the exercise of power under Section 482 of Cr.P.C. is essential to prevent patent miscarriage of justice and for correcting some grave error that may be committed by the subordinate court, such power should be exercised by the High Courts ex debito justitiae , i.e., to do real and substantial justice for administration of which alone, the courts exist.

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To sum up, foundation of criminal offence is not laid against the accused, even if the contents of the criminal complaint are presumed to be correct on its face value. In such a situation, although inherent powers of this Court under Section 482 Cr.P.C. should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself, but the instant case appears to be one such case in which such jurisdiction should be exercised.

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Application under Section 482 of Cr.P.C. is, therefore, allowed. Summoning order dated 23.03.2009, as also the proceedings of criminal complaint case no. 338 of 2008 (75 of 2008), Awtar Singh vs Kishan Chandra, relating to police station, Vikas Nagar, District Dehradun, for the offences punishable under Sections 420, 506 of IPC, pending in the court of Judicial Magistrate, First Class, Vikas Nagar, Dehradun are hereby quashed.

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This order will not prevent the complainant from seeking appropriate civil remedy against the accused before appropriate forum.

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(U.C. Dhyani, J.)

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Dt. March 04, 2014. Negi

Kishan Chandra v. State of Uttarakhand and Anr.

Case brief

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Kishan Chandra v. State of Uttarakhand and Anr.

Case brief

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