Allahabad High Court
Shailendra Kumar @ Sonu And ... vs State Of U P And 3 Others on 18 January, 2021
Bench: Kaushal Jayendra Thaker, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 49
Case :- CRIMINAL MISC. WRIT PETITION No. - 17593 of 2020
Petitioner :- Shailendra Kumar @ Sonu And Another
Respondent :- State Of U P And 3 Others
Counsel for Petitioner :- Perdeep Kumar Vishnoi
Counsel for Respondent :- G.A.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Gautam Chowdhary,J.
1. Heard Sri Pradeem Kumar Vishnoi, learned counsel for the petitioner and learned A.G.A. for the State.
2. By way of this writ petition, petitioners have prayed from this Court to issue a writ, order or direction in the nature of certiorari to quash the impugned First Information Report dated 6.12.2020 lodged against the petitioners which has been registered as F.I.R. No.971 of 2020 under Sections 406,504 and 506 I.P.C., P.S. Izzatnagar, Bareilly or issue a writ, order or direction in the nature of mandamus directing the respondents authority not to arrest the petitioners pursuance to the aforesaid F.I.R.
3. The factual data which emerges on record is that the petitioners who are sons of one Chandan Lal had taken money from the complainant as they were on good relations. On 6.12.2020, Pankaj Kumar Gupta lodged one F.I.R. for commission of alleged offences under Sections 406,504 and 506 I.P.C. by the accused. The amount was not refunded. When the complainant had demanded the money from the petitioners, a cheque of Firm Chandan Lal after a period of one year was given but the said check was returned as it did not have sufficient amount.
4. It is submitted by the counsel for the petitioners that once proceeding under Section 138 of N.I. Act was initiated, complaint under Sections 406,504 & 506 I.P.C. would not be maintainable as it is a question of civil liability; the cheque was issued in the capacity of firm as security amount; the F.I.R. is based on false and fabricated facts and the charge-sheet has also not been led by the police authority. It is further submitted that the petitioners apprehend their arrest and, therefore, are before this Court.
5. It is also submitted that civil liability cannot be converted into criminal liability; the First Information Report does not incriminate the petitioners and the controversy is in the realm of civil jurisdiction. Learned counsel for the petitioner, in support of his argument has relied on the decision in Binod Kumar and Others Vs. State of Bihar and another, (2014) 10 SCC 663.
6. The F.I.R., according to this Court, prima facie goes to show that offence under Sections 406, 504 & 506 I.P.C. are made out against the accused. The judgment in Binod Kumar (Supra) relates to Section 406, I.P.C. only. The facts of the said case are in the realm of different jurisdiction. In our case, the contours for exercising jurisdiction are as narrated in the said judgment itself. The tendency under business circles to convert purely civil dispute into criminal cases is not what can be found to be in the present case. The intention of the petitioner is very clear to dupe the complainant of the money which he has procured from him and thereafter has prima facie committed what can be said to be offences under Section 406,504 & 506, I.P.C.
7. If the offence made out against the accused are such whereby the amended provisions of Sections 41A/41B/41C have to be complied with by the police, the same shall be complied with by the police before taking any action against the petitioners. However, if the other offences are such where no such protection is necessary, we may leave it to the police authority to do the needful.
8. With these observations, this petition is dismissed as no case is made out for interference under Section 226 of the Constitution of India.
Order Date :- 18.1.2021
DKS
