Devendra Singh Topal vs State Of Uttarakhand
2022 Latest Caselaw 514 UK

     IN THE HIGH COURT OF UTTARAKHAND AT
                   NAINITAL

  Criminal Miscellaneous Application No. 5 of 2022


Devendra Singh Topal                          ...... Petitioner

                               Vs.

State of Uttarakhand
and Another                                 ..... Respondents



Present:-
Mr. Vinodanand Barthwal, Advocate for the petitioner.
Mr. Lalit Miglani, A.G.A. for the State of Uttarakhand.



                          JUDGMENT

Hon'ble Ravindra Maithani, J.(Oral)

Challenge in this petition is made to the

following orders;

(1) Order dated 05.02.2021 passed in Criminal Case

No. 278 of 2021, Devendra Singh Topal Vs. Smt.

Monika Thakur, by the court of Chief Judicial

Magistrate, Pauri Gahrwal (for short "the case").

By this order, complaint filed by the petitioner

has been dismissed under section 203 of the Code

of Criminal Procedure, 1973 (for short "the

Code"); and

(2) Judgment and order dated 20.10.2021 passed in

Criminal Revision No. 3 of 2021, Devendra Singh

Topal Vs. State and another, by the court of

District and Sessions Judge, Pauri Garhwal (for

short "the revision"). By this judgment and order,

the order dated 05.02.2021 passed in the case

has been affirmed.

2. Facts necessary, to appreciate the

controversy, briefly stated, are as follows;

The petitioner filed a complaint against respondent no.

2, which is basis of the case. According to the complaint,

the respondent no. 2 and her daughter took Rs. 6

Lakhs as loan from the petitioner with the assurance

that they would return it within one year.

3. Petitioner, on different dates, remitted

money in the accounts of Priya Thakur, the daughter of

respondent no. 2. After one year, when the petitioner

demanded his money, he was given a cheque of Rs.6

Lakhs drawn by Ms. Priya Thakur, but, when the

cheque was presented, it was dishonoured.

4. It is the case of the petitioner that

respondent no.2 since inception had intention to cheat

the petitioner, therefore, she cheated the petitioner and

took Rs.6 Lakhs from him. The petitioner had also filed

a complaint under section 138 of the Negotiable

Instruments Act, 1881 ("the Act") against Ms. Priya

Thakur, which was decided in favour of the petitioner.

After inquiry under section 200 and 204 of the Code, by

the impugned order dated 05.02.2021, the court

observed that dispute involved in the complaint is purely

civil in nature. Accordingly, the complaint has been

dismissed. The petitioner unsuccessfully challenged the

order dated 05.02.2021 in the revision. Aggrieved by it,

the petitioner is before this court.

5. Heard learned counsel for the parties and

perused the record.

6. Learned counsel for the petitioner would

submit that the cheque in question was given to the

petitioner by concealment of the fact. The respondent

no. 2 knew that, at the relevant time, Ms. Priya Thakur

was in Tihar Jail. She was involved in crypto currency

fraud. Learned counsel would also submit that since Ms.

Priya Thakur has already been convicted under section

138 of the Act, it infers that there is criminality in the

action. Therefore, the impugned order deserves to be

set-aside.

7. This is a petition under section 482 of the

Code. In the impugned order dated 05.02.2021, the

court below has taken reference to the various

judgments. Particularly, reference has been made to the

judgment in the case of Indian Oil Coprn. Vs. NEPC

India Ltd. and Others, (2006) 6 SCC 736. In paragraph

12 of the judgment in the case of IOC (supra), the

Hon'ble Supreme Court culled out the principles for

invoking the jurisdiction under section 482 of the Code.

In paragraph 12(v), the Hon'ble Court observed as

hereunder;

"12.....................................................................

........................................................................

(v) A given set of facts may make out: (a) purely a

civil wrong; or (b) purely a criminal offence; or (c) a

civil wrong as also a criminal offence. A

commercial transaction or a contractual dispute,

apart from furnishing a cause of action for seeking

remedy in civil law, may also involve a criminal

offence. As the nature and scope of a civil

proceeding are different from a criminal

proceeding, the mere fact that the complaint

relates to a commercial transaction or breach of

contract, for which a civil remedy is available or

has been availed, is not by itself a ground to quash

the criminal proceedings. The test is whether the

allegations in the complaint disclose a criminal

offence or not."

8. In paragraph 13 of the judgment in the

case of IOC (supra), the Hon'ble Supreme Court

observed that "while on this issue, it is necessary to

take notice of a growing tendency in business circles

to convert purely civil disputes into criminal cases.

This is obviously on account of a prevalent

impression that civil law remedies are time

consuming and do not adequately protect the

interests of lenders/creditors. Such a tendency is

seen in several family disputes also, leading to

irretrievable breakdown of marriages/families. There

is also an impression that if a person could somehow

be entangled in a criminal prosecution, there is a

likelihood of imminent settlement."

9. A dispute which is civil in nature may also

have an element of criminality. The petitioner had filed

complaint under section 420 IPC. In order to attract the

provision of section 420 IPC in such matters, it has to be

prima facie shown that since inception the person

accused had an intention to cheat. In the instant case, it

is the case of the petitioner that he advanced Rs. 6

Lakhs to Ms. Priya Thakur and respondent no. 2. In

repayment, petitioner was paid a cheque drawn by Ms.

Priya Thakur, which, as stated, when presented was not

honoured. For this, according to complaint itself, Ms.

Priya Thakur has been convicted. She is in jail.

10. Learned counsel for the petitioner would

submit that, in fact, respondent no. 2 knew that when

she delivered the cheque, Ms. Priya Thakur was in jail.

But, it does not make out an offence under section 420

IPC. Even if the person is in jail, he may very well issue

cheques. He may deal commercially. It is also argued

that Ms. Priya Thakur is involved in many crypto

currency frauds. It also does not make out a case under

section 420 IPC in the instant case.

11. Having considered the submissions, this

Court is of the view that the courts below did not

commit any error in passing the impugned orders. The

dispute, as raised in the complaint, is purely civil in

nature. Accordingly, no interference is warranted in the

matter and the petition deserves to be dismissed.

12. The petition is dismissed.

(Ravindra Maithani, J.) 04.01.2022 Ujjwal