Court No. - 72
Case :- APPLICATION U/S 482 No. - 38431 of 2017 Applicant :- Ishwari Prasad Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Shiv Sagar Singh Counsel for Opposite Party :- G.A.,A.C.Tiwari(Ac) Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Shiv Sagar Singh, learned counsel for the applicant, Sri A.C. Tiwari, learned counsel for the opposite party no. 2 and learned A.G.A. on behalf of State.
2. Present application has been filed to quash the charge sheet dated 26.3.2017 as well as entire criminal proceedings of Case Crime No.402 of 2016, Case No.2723 of 2017, under sections 504, 506, 419 and 420 IPC, P.S. Kokhraj, District Kaushambi pending in the Court of Chief Judicial Magistrate, Kaushambi.
3. Short submission advanced by learned counsel for the applicant is that present is a pure civil dispute between the parties arising out of contract of tenancy. A perusal of the FIR makes it plain that the opposite party no. 2 admits to having created a tenancy in favour of the present applicant on certain terms and conditions contained in a written agreement dated 1.3.2016. The allegation is that against a security deposit of Rs.5 lakh demanded by the opposite party no. 2, the applicant had issued two cheques for Rs.2 lakh and 3 lakh. While the cheque for two lakh were dully encashed, the other cheques for Rs.3 lakh got dishonoured. Thereafter the FIR narrates that against an agreement clause for payment of rent @ Rs.60,000/- per month, the applicant did not make payments of those amounts. Further, despite issuance of notice to vacate the premisses, the applicant had refused to vacate the premises but filed his civil suit claiming injunction being O.S. No.50 of 2016 pending in the court of Civil Judge, Kaushambi.
4. The opposite party no. 2 has, besides initiating the criminal proceedings, filed a counter blast claim in O.S. No.50 of 2016 claiming arrears of rent and eviction.
5. In such facts, learned counsel for the applicant states that a pure civil dispute has been given colour of a criminal prosecution. Though the applicant has been making some deposits of rent in the court of Civil Judge, Kaushambi under Section 30 of U.P. Act No. 13 of 1972, the present criminal prosecution has been pressed only to pressure the applicant to vacate the premises.
6. Leaned counsel for the opposite party no. 2, on the other hand submits that civil suit filed by the applicant is nothing but a pretence to retain possession. While an injunction has been granted in favour of the applicant, counter claim filed by the opposite party no. 2 has been allowed and the applicant has undertaken to pay the rent month to month. However, that undertaking has been defaulted. Therefore, it has been submitted that ingredients of the offence are clearly made out as the applicant had no intention to pay the money to the opposite party no. 2 at any point of time.
7. It has also been submitted that there are allegations of intimidation as well which do not call for any interference.
8. Having heard learned counsel for the parties and having perused the record, in the first place, it cannot be denied that the essence of dispute is a civil litigation. The applicant is admittedly a siting tenant in the premises. While its vacation is being sought by the opposite party no. 2/land lord, at present there is any injunction order obtaining in his favour. As to the non payment of rent, it is seen that it is own case of the opposite party no. 2 that against a security demand of Rs.5 lakh, the applicant had paid to the opposite party no. 2 a sum of Rs.3 lakh but that cheque of balance amount got dishonoured. Whatever the rights and the remedies opposite party no. 2 may have had with respect to the dishonour of the cheque under the Negotiable Instruments Act, it is difficult to accept the contention of learned counsel for the opposite party no. 2 that there was no intention on the part of the applicant to pay any money or that he had cheated the opposite party no. 2, inasmuch as, the existence of the tenancy agreement is a fact squarely admitted to the opposite party no. 2. On one hand, an injunction order is favouring the applicant and on the other there is his own an undertaking to pay month to month rent. While the parties are at odds whether such undertaking is being complied, inasmuch as, according to the opposite party no. 2 the undertaking has been completely faulted, the applicant claims he has been paying rent on month to month basis in court. It is clearly borne out on the basis of the FIR and the other record of the criminal prosecution that the tenancy dispute is the main, if not the only dispute between the parties. It is pending consideration in the Civil Court. Both the parties have approached that court, one by filing a suit and the other by filing a counter claim. Therefore, leaving the parties, to pursue that remedy, it is found that the ingredients had not been made out in so far as the offence of cheating is alleged. In so far as other offences are concerned, in the context of the main civil dispute that has been found to be existing, the same appear to have been existing only to lend colour to the main allegation.
9. Accordingly, application is allowed.
Order Date :- 30.5.2019 Meenu