Madhya Pradesh High Court
Rajesh Upadhya vs The State Of Madhya Pradesh on 15 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 M.Cr.C.No. 55597 of 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 15th OF APRIL, 2025
MISC. CRIMINAL CASE No. 55597 of 2024
RAJESH UPADHYA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ashfaq Khan - Advocate for applicant.
Shri Mohit Shivhare- Public Prosecutor for respondent/State.
ORDER
This application, under Section 528 of B.N.S.S., 2023, has been filed
for quashment of FIR in Crime No.603/2024 registered at Police Station
Ambah, District Morena (M.P.) for offence punishable under Sections 406
and 420 of IPC.
2. The facts necessary for disposal of the present application in short are
that complainant lodged an FIR on the allegations that applicant had
purchased Potatoes from him and from various other farmers but after selling
those Potatoes, applicant has not made payment of the same to complainant as
well as to the farmers. It was alleged that applicant was running Saraswati
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Shishu Mandir for the last four years. In the year 2024, complainant had sown
Potatoes in his field. Applicant assured that he would purchase his Potatoes at
the rate of Rs.2,140/- per quintle. Accordingly, on 15.04.2024, complainant
sold 325 quintle Potatoes to applicant at the rate of Rs.2,140/- per quintle.
The amount of Rs.1,30,000/- was paid by applicant by way of advance and he
was assured that the remaining amount of Rs.5,22,000/- shall be paid to him
within a period of 10 days. However, applicant has not paid the amount and
has misappropriated the funds after selling Potatoes. Applicant also went
missing from his house situated in Datia. It was further pleaded that
handwritten details as well as blank cheque issued by applicant is also
available with the complainant. It was further alleged that similarly in the year
2024, applicant had cheated Rajkumar, Raghvendra, Vinod Parashar, Annu
and Raju and did not pay Rs.3,37,000/- to Rajkumar, Rs.5,74,000/- to
Raghvendra, Rs.1,55,000/- to Vinod Parashar, Rs.90,000/- to Annu and
Rs.1,80,000/- to Raju. It was further alleged that applicant has also
misappropriated the amount of other farmers.
3. Challenging the FIR lodged by complainant, it is submitted by counsel
for applicant that on 27.08.2024, applicant made a complaint to
Superintendent of Police, District Morena (M.P.) alleging that on 10.08.2024,
he was abducted by Omveer Singh Tomar and his 2-3 companions and an
amount of Rs.90,000/- was looted from him and certain blank papers were got
signed from him. It is submitted that so far as blank cheque is concerned, it is
the same cheque which was forcibly got signed by Omveer Singh Tomar after
abducting him. It is further submitted that father of applicant has also lodged
complaint under Section 175(3) of BNSS, 2023 against Omveer Tomar, Pope
Singh, Raghvendra, Gaurav Dandotiya, Rajkumar, Vinod Parashar, Annu and
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Raju. However, counsel for applicant fairly conceded that he has not filed the
order sheets of the Court to show the status of complaint. It is further
submitted by counsel for applicant that it is well established principle of law
that where the allegations are predominantly of civil in nature, then the said
case should not be permitted to be converted into criminal case.
4. Per contra, application is vehemently opposed by counsel for
respondent/State. It is submitted that it is not simply a business transaction but
applicant has misappropriated the amount of various farmers and has run
away from his house.
5. Heard learned counsel for the parties.
6. Before considering the facts of the case, this Court would like to
consider the law relating to criminal proceedings where civil ingredients are
also involved.
7. The Supreme Court in the case of Amit Kapoor v. Ramesh Chander
reported in (2012) 9 SCC 460 has held as under:
"27. Having discussed the scope of jurisdiction under these two
provisions i.e. Section 397 and Section 482 of the Code and the
fine line of jurisdictional distinction, now it will be appropriate
for us to enlist the principles with reference to which the courts
should exercise such jurisdiction. However, it is not only
difficult but is inherently impossible to state with precision
such principles. At best and upon objective analysis of various
judgments of this Court, we are able to cull out some of the
principles to be considered for proper exercise of jurisdiction,
particularly, with regard to quashing of charge either in
exercise of jurisdiction under Section 397 or Section 482 of the
Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court
under Section 482 of the Code but the more the power, the
more due care and caution is to be exercised in invoking these
powers. The power of quashing criminal proceedings,
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particularly, the charge framed in terms of Section 228 of the
Code should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of the case
and the documents submitted therewith prima facie establish
the offence or not. If the allegations are so patently absurd and
inherently improbable that no prudent person can ever reach
such a conclusion and where the basic ingredients of a criminal
offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No
meticulous examination of the evidence is needed for
considering whether the case would end in conviction or not at
the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential
to prevent patent miscarriage of justice and for correcting some
grave error that might be committed by the subordinate courts
even in such cases, the High Court should be loath to interfere,
at the threshold, to throttle the prosecution in exercise of its
inherent powers.
27.5. Where there is an express legal bar enacted in any of the
provisions of the Code or any specific law in force to the very
initiation or institution and continuance of such criminal
proceedings, such a bar is intended to provide specific
protection to an accused.
27.6. The Court has a duty to balance the freedom of a person
and the right of the complainant or prosecution to investigate
and prosecute the offender.
27.7. The process of the court cannot be permitted to be used
for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from
the record and documents annexed therewith to predominantly
give rise and constitute a "civil wrong" with no "element of
criminality" and does not satisfy the basic ingredients of a
criminal offence, the court may be justified in quashing the
charge. Even in such cases, the court would not embark upon
the critical analysis of the evidence.
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27.9. Another very significant caution that the courts have to
observe is that it cannot examine the facts, evidence and
materials on record to determine whether there is sufficient
material on the basis of which the case would end in a
conviction; the court is concerned primarily with the
allegations taken as a whole whether they will constitute an
offence and, if so, is it an abuse of the process of court leading
to injustice. 27.10. It is neither necessary nor is the court called
upon to hold a full-fledged enquiry or to appreciate evidence
collected by the investigating agencies to find out whether it is
a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also
amount to an offence, merely because a civil claim is
maintainable, does not mean that a criminal complaint cannot
be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or
under Section 482, the Court cannot take into consideration
external materials given by an accused for reaching the
conclusion that no offence was disclosed or that there was
possibility of his acquittal. The Court has to consider the
record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of
continuous prosecution. Where the offence is even broadly
satisfied, the Court should be more inclined to permit
continuation of prosecution rather than its quashing at that
initial stage. The Court is not expected to marshal the records
with a view to decide admissibility and reliability of the
documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of
the Code, suffers from fundamental legal defects, the Court
may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court
finds that it would amount to abuse of process of the Code or
that the interest of justice favours, otherwise it may quash the
charge. The power is to be exercised ex debito justitiae i.e. to
do real and substantial justice for administration of which
alone, the courts exist. [Ref. State of W.B. v. Swapan Kumar
GuhaMadhavrao Jiwajirao Scindia v. Sambhajirao
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Chandrojirao Angre; Janata Dal v. H.S. Chowdhary; Rupan
Deol Bajaj v. Kanwar Pal Singh Gill; G. Sagar Suri v. State of
U.P.; Ajay Mitra v. State of M.P.; Pepsi Foods Ltd. v. Special
Judicial Magistrate; State of U.P. v. O.P. Sharma; Ganesh
Narayan Hegde v. S. Bangarappa; Zandu Pharmaceutical
Works Ltd. v. Mohd. Sharaful Haque; Medchl Chemicals and
Pharma (P) Ltd. v. Biological E. Ltd.; Shakson Belthissor v.
State of Kerala; V.V.S. Rama Sharma v. State of U.P.;
Chunduru Siva Ram Krishna v. Peddi Ravindra Babu;
Sheonandan Paswan v. State of Bihar; State of Bihar v. P.P.
Sharma; Lalmuni Devi v. State of Bihar; M. Krishnan v. Vijay
Singh; Savita v. State of Rajasthan and S.M. Datta v. State of
Gujarat.]
27.16. These are the principles which individually and
preferably cumulatively (one or more) be taken into
consideration as precepts to exercise of extraordinary and wide
plenitude and jurisdiction under Section 482 of the Code by the
High Court. Where the factual foundation for an offence has
been laid down, the courts should be reluctant and should not
hasten to quash the proceedings even on the premise that one
or two ingredients have not been stated or do not appear to be
satisfied if there is substantial compliance with the
requirements of the offence.
28. At this stage, we may also notice that the principle stated
by this Court in Madhavrao Jiwajirao Scindia was reconsidered
and explained in two subsequent judgments of this Court in
State of Bihar v. P.P. Sharma and M.N. Damani v. S.K. Sinha.
In the subsequent judgment, the Court held that, that judgment
did not declare a law of universal application and what was the
principle relating to disputes involving cases of a
predominantly civil nature with or without criminal intent."
8. The Supreme Court in the case of Naresh Kumar & Anr. Vs. The
State of Karnataka & Anr. decided on 12.3.2024 in S.L.P.(Cr.)
No.1570/2021 has held as under :-
6. In the case of Paramjeet Batra v. State of Uttarakhand
(2013) 11 SCC 673, this Court recognized that although the
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inherent powers of a High Court under Section 482 of the
Code of Criminal Procedure should be exercised sparingly, yet
the High Court must not hesitate in quashing such criminal
proceedings which are essentially of a civil nature. This is
what was held:
"12. While exercising its jurisdiction under Section 482
of the Code the High Court has to be cautious. This
power is to be used sparingly and only for the purpose of
preventing abuse of the process of any court or
otherwise to secure ends of justice. Whether a complaint
discloses a criminal offence or not depends upon the
nature of facts alleged therein. Whether essential
ingredients of criminal offence are present or not has to
be judged by the High Court. A complaint disclosing
civil transactions may also have a criminal texture. But
the High Court must see whether a dispute which is
essentially of a civil nature is given a cloak of criminal
offence. In such a situation, if a civil remedy is available
and is, in fact, adopted as has happened in this case, the
High Court should not hesitate to quash the criminal
proceedings to prevent abuse of process of the court."
Relying upon the decision in Paramjeet Batra (supra), this
Court in Randheer Singh v. State of U.P. (2021) 14 SCC 626,
observed that criminal proceedings cannot be taken recourse
to as a weapon of harassment. In Usha Chakraborty and Anr.
v. State of West Bengal and Anr. 2023 SCC OnLine SC 90,
relying upon Paramjeet Batra (supra) it was again held that
where a dispute which is essentially of a civil nature, is given
a cloak of a criminal offence, then such disputes can be
quashed, by exercising 8 the inherent powers under Section
482 of the Code of Criminal Procedure.
9. Thus, it is clear that where the dispute is predominantly of civil in
nature, then parties should not be made to take recourse to criminal
proceedings as a weapon of harassment.
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10. Now, the only question for consideration is as to whether the
allegations made in the FIR are predominantly of civil in nature or they
involve criminal ingredients also?
11. It is well established principle of law that failure to keep the promise at
a later stage would not bring the act within the purview of Section 420 or 406
of IPC unless and until the facts indicate that the intention of the accused right
from very inception was to cheat the complainant. If the facts of the present
case are considered, then it is clear that applicant is not a businessman. In fact,
he was running a school. He agreed to purchase Potatoes at the rate of
Rs.2140/- per quintle from various farmers. Although it is alleged that
applicant has sold Potatoes which were taken from farmers but has not paid
the amount to farmers. Had it been a case where applicant could not sell
Potatoes in open market for any reason, then whether intention of applicant
from the very inception was to deceive or to cheat the farmers or not would
not have arisen. But once he has purchased Potatoes from farmers and then
sold them in the open market and thereafter misappropriated money by not
making payment of price of Potatoes to farmers, it can be inferred that
intention of applicant from the very inception was to cheat the farmers.
12. So far as complaint lodged by applicant with regard to his abduction
and signing of blank papers is concerned, the same cannot be relied upon
because allegations made by applicant have not been found to be proved.
Furthermore, why a person would be abducted only for getting signatures on
blank papers unless and until it is shown by applicant that he had certain old
enmity with the person against whom he has levelled allegations.
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13. Thus, prima facie it appears that a false complaint was made by
applicant to the Superintendent of Police, Morena to create a defence with
regard to handwritten calculation pertaining to purchase of Potatoes.
14. Considering the totality of facts and circumstances of the case, this
Court is of considered opinion, no case is made out warranting interference.
15. Application fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
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