Allahabad High Court
Alok Kumar Pandey vs State Of U.P. And Another on 8 May, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:106413
Reserved on : 31.03.2026 Delivered on : 08.05.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 482 No. - 9523 of 2018
Alok Kumar Pandey
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Abhinav Jaiswal, Indra Kumar Chaturvedi, Indra Kumar Chaturvedi(Senior Adv.), Ram Milan Dwivedi, Saurabh Chaturvedi
Counsel for Opposite Party(s)
:
Akhilesh Singh, G.A., Mohit Singh, Shivam Yadav
Court No. - 70
HON'BLE JAI PRAKASH TIWARI, J.
1. Heard Sri Udit Chandra, learned Advocate holding brief of Sri Abhinav Jaiswal, learned counsel for the applicant, Sri Shivam Yadav, learned counsel for O.P. No.2 and Sri M.K. Upadhyay, learned AGA for the State.
2. The present application has been filed with the prayer to quash the charge-sheet dated 22.08.2017 as well as entire criminal proceeding of Criminal Case No. 810 of 2017 under Sections 419, 420, 467, 468 IPC, Police Station Kydganj, District Allahabad arising out of Case Crime No. 139 of 2017 pending before Judicial Magistrate-I, Allahabad.
Arguments advanced on behalf of applicant
3. Written Submission has been filed on behalf of applicant with the following averments:
4. The informant alleges that an agreement was executed with applicant for the sale of House No. 102/139, Darbhanga Castle Compound, Allahabad, and the money was transferred in two parts through RTGS and Demand Draft respectively. It is contended that the non-execution of the sale deed occurred because the informant (i.e. O.P. No.2) failed to pay the balance consideration within the stipulated period of time as per the agreement, thus this is purely a civil dispute arising out of breach of contract and no criminal liability arise from such transaction.
5. It has been further submitted by the learned counsel for the applicant that the informant has already filed a complaint under Section 138 N.I. Act as Complaint Case No. 1684 of 2016 regarding the same transaction and further a parallel proceeding under the provision of Indian Penal Code has been initiated with malicious intent. It is further submitted that a bare reading of the FIR clearly reveals that it is a plain and simple dispute between the parties only regarding non-execution of a registered sale deed. There was no justification for registering the FIR, rather the complainant should have been instructed to avail the appropriate remedy by approaching the civil court. It is further contended that there is complete absence of mens-rea at the very inception and no ingredients were made out to prove the offence under Sections 419, 420, 467, 468 IPC.
6. It is next submitted by the learned counsel for the applicant that to sustain the charge under Sections 419, 420 IPC or for the offence of forgery, the prosecution must establish that the accused had a fraudulent intention at the very beginning of the transaction while in the present case, the applicant has already returned approximately Rs. 65 lakhs to the informant/ O.P. No.2. A person having an intent to cheat would not make substantial repayments or approaches the court expressing the readiness to pay the balance amount in installments.
7. Learned counsel for the applicant also submitted that as such no false documents have been prepared by the applicant and, therefore, no offence under Sections 467, 468 IPC is made out. These provisions require the making of false documents as defined under Section 464 IPC. In the present case, all receipts and agreement were based on actual transactions, therefore, no offence of forgery is made out against the applicant. A dispute over title or breach of agreement to sell does not equate to the physical forgery of documents.
8. It is next submitted that the present FIR is liable to be quashed on the ground of unexplained and inordinate delay, which clearly indicates that the proceedings are afterthought intended with mala fide intention to exert pressure upon the applicant. The allegations are concocted for the purpose of initiating a frivolous prosecution, however, the civil nature of the dispute became apparent. Further, apart from this, the informant was fully aware of the transactions and had already filed a complaint under Section 138 N.I. Act on 15.10.2016, so the subsequent filing of an FIR under the provisions of Indian Penal Code after such a long interval is a gross abuse of process of law.
9. Learned counsel for the applicant has placed reliance upon the law laid down by the Hon?ble Superior Court in case of Arun Bhandari vs. State of U.P. and others 2013 (S) SCC 801, wherein it has been held that mere failure to keep up promise does not amount to cheating. In paragraph nos. 21 and 31 the Hon'ble Court has observed that:
"21. In S.N. Palanitkar and others v. State of Bihar and another, 2001(4) RCR (Criminal) 572 it has been laid down that in order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.
31. ?.The entire conduct of the respondent Nos. 2 and 3 would show that a prima facie case is made out and allegations are there on record in this regard that they had the intention to cheat from the stage of negotiation?.."
10. Learned counsel for the applicant submitted that in the applicant?s case the conduct of partial repayment and transparent RTGS transfers prove the absence of such initial intent.
11. Further learned counsel for the applicant placed reliance upon the judgment of the Apex Court in case of Babu Venkatesh and others v. State of Karnataka and another 2022 (5) SCC 639, wherein the Hon?ble Court has held that criminal proceeding initiated with ulterior motive to settle civil scores must be quashed. In paragraph nos. 22 and 30, the Hon'ble Court has held that:
"22. We find that in the present case, though civil suits have been filed with regard to the same transactions and though they are contested by the respondent No. 2 by filing written statement, he has chosen to file complaint under Section 156 (3) of the Cr.P.C. after a period of one and half years from the date of filing of written statement with an ulterior motive of harassing the appellants.?.
30. We are, therefore, of the considered view that, continuation of the present proceedings would amount to nothing but an abuse of process of law."
12. He further placed reliance upon the judgment of the Hon?ble Apex Court in case of J. Vedhasingh vs. R.M. Govindan (2022) SCC Online SC 1010, where two judges Bench noted a conflict between earlier decisions ?allowing parallel trials? and cases like Kolla Veera Raghav Rao ?barring parallel trials under Section 300(1) Cr.P.C.?. The matter is now pending before three Judges Bench and questions have been formulated as follows:
"(1) whether the ratio of judgment in G. Sagar Suri and Kolla Veera Raghav Rao lays down correct law?
(2) whether on similar set of allegations of fact the accused can be tried for an offence under NI Act which is special enactment and also for offences under IPC unaffected by the prior conviction or acquittal and, the bar of Section 300(1) Cr.P.C., 1973 would attract for such trial?"
13. Further, he placed reliance upon judgment of the Apex Court in case of Mala Choudhary and Anr. vs. State of Telangana and Anr. (SC) 2025 INSC 870, wherein the Hon?ble Court has held that the FIR was gross abuse of the process of law as the dispute was purely civil in nature. In paragraph no. 18, the Court has observed that:
"18. Exercising the jurisdiction of this Court under Article 136 of the Constitution of India, we hereby quash and set aside the impugned order dated 28th April, 2023 passed by the High Court and as a consequence, the FIR No. 771 of 2020 dated 14th December 2020, and all proceedings sough to be taken in furtherance thereof are declared to be gross abuse of the process of law and are hereby quashed and set aside."
14. Further, he placed reliance upon the judgment of the Hon?ble Superior Court in case of Sanjaibij Tari vs. Kishore S. Borcar & Anr. 2025 INSC 1158. In paragraph no. 38, the Hon?ble Court has held that:
"38. Since a very large number of cheque bouncing cases are still pending and interest rates have fallen in the last few years, this Court is of the view that it is time to ?revisit and tweak the guidelines?. Accordingly, the aforesaid guidelines of compounding are modified as under:-
(a) If the accused pays the cheque amount before recording of his evidence (namely defence evidence), then the Trial Court may allow compounding of the offence without imposing any cost or penalty on the accused.
(b) If the accused makes the payment of the cheque amount post the recording of his evidence but prior to the pronouncement of judgment by the Trial Court, the Magistrate may allow compounding of the offence on payment of additional 5% of the cheque amount with the Legal Services Authority or such other Authority as the Court deems fit.
(c) Similarly, if the payment of cheque amount is made before the Sessions Court or a High Court in Revision or Appeal, such Court may compound the offence on the condition that the accused pays 7.5% of the cheque amount by way of costs.
(d) Finally, if the cheque amount is tendered before this Court, the figure would increase to 10% of the cheque amount."
15. He also placed reliance upon the judgment of the Apex Court in case of Kola Veera Raghav Rao vs. Gorantla Venkateswara Rao and another 2011(1) BC 669. In paragraph nos. 5, 6 and 7 the Court has observed that:
"5. It may be noticed that there is a difference between the language used in Article 20(2) of the Constitution of India and Section 300(1) of Cr.P.C.. Article 20(2) states:
"no person shall be prosecuted and punished for the same offence more than once."
On the other hand, Section 300(1) of Criminal Procedure Code States:
"300. Person once convicted or acquitted not to be tried for same office__ (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221 or for which he might have been convicted under sub-section (2) thereof."
6. Thus, it can be seen that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts.
7. In the present case, although the offences are different but the facts are the same. Hence, Section 300(1) of Cr.P.C. applies. Consequently, the prosecution under Section 420, IPC was barred by Section 300(1) of Criminal Procedure Code."
Arguments advanced on behalf of Opposite Parties
16. Per contra, learned AGA as well as learned counsel for O.P. No.2 opposed the prayer and submitted that the present FIR was lodged with the allegation that applicant received an advance amount sale of the aforesaid property/ residential house, which actually did not belong to him. The applicant was only property dealer and he after inducing O.P. No.2 with the fact that the said house/ property will be transferred in his favour by way of registry, received payment of Rs. 58 lakhs (admitted by applicant) from O.P. No.2.
17. Learned counsel for O.P. No.2 further submitted that intention of applicant to cheat the O.P. No.2 from very inception is evident from the fact that the property/house in question was sold out to another person namely Yogesh despite having complete knowledge that the O.P. No.2 has already made transaction in favour of applicant regarding the same property. He further submits that the applicant has kept his entire money and is enjoying benefits of the same by giving false promise.
18. He next submits that the first information report lodged on behalf of O.P. No.2 suggests in clear words that applicant has cheated upon O.P. No.2, so the proceeding under Section 138 N.I. Act does not vitiate the criminal proceeding under Sections 420, 467 and 468 IPC because there are sufficient grounds for prosecution, therefore, both the proceedings cann?t be mixed. The said FIR was lodged with clear allegation that ingredients of other offences are made out against the applicant. It is evident from the record that applicant received the money from O.P. No.2 and also from another person regarding the same property, this shows that he had the intention to cheat O.P. No.2.
19. Learned counsel for O.P. No.2 placed reliance on the law laid down by the Hon?ble Superior Court in case J.Vedhasingh vs. R.M. Govindan and others 2022 SCC OnLine SC 1010. In paragraph no. 13, the Court has observed that:
"13. On perusal of the judgment of Sangeetaben Mahendrabhai Patel (supra) relied in the case of M/S. V.S. Reddy and Sons (supra) by the appellant and the judgments relied upon by the respondents in the case of G. Sagar Suri (supra) and Kolla Veera Raghav Rao (supra) as afore quoted, the facts and the allegations were similar and that too the prosecution for the offences under Section 138 of the NI Act and, under Sections 406 and 420 of the IPC were also similar. In the judgment of Sangeetaben Mahendrabhai Patel (supra) it was held that the requirement to prove an offence under the NI Act and an offence under the IPC is different, and it was observed that there may be some overlapping of facts but the ingredients of the offences are entirely different, therefore, the subsequent cases are not barred by any statutory provisions. While in the case of G. Sagar Suri (supra) and Kolla Veera Raghav Rao (supra), the Court concluded that as per Section 300(1) Cr.P.C. no one can be tried and convicted for the same offence or even for a different offence on the same facts, therefore, the prosecution under Section 420 of the IPC is barred by Section 300(1) of Cr.P.C and accordingly liable to be quashed. It is to observe that in the case of Sangeetaben Mahendrabhai Patel (supra) the judgments of G. Sagar Suri (supra) and Kolla Veera Raghav Rao (supra) have been referred but distinguished on the ground that it was not raised and decided that ingredients of both offences were not same, and the bar of Section 300(1) of Cr.P.C. would not attract. It is relevant to note here that the judgments cited by both the parties are rendered by benches having the strength of two Judges. In our considered view, the bench of this Court in the case of Sangeetaben Mahendrabhai Patel (supra) followed in M/s. V.S. Reddy and Sons (supra) has taken a different view from the previous judgments of G. Sagar Suri (supra) and Kolla Veera Raghav Rao (supra) rendered by the bench of the same strength. The view taken in both the cases are conflicting to each other. Needles to observe that it is a trite law, if any issue is decided in a previous judgment by a bench of the same strength, conflicting view in the subsequent judgment should not be rendered on the pretext that the issue has not been raised or considered in the previous judgment. In this regard the judgment in District Manager, APSRTC, Vijaywada v. K. Sivaji, (2001) 2 SCC 135, Chandra Prakash v. State of U.P., 2002 AIR SCW 1573 can be profitably referred whereby it is observed that judicial decorum demands that if judgments passed by two judges? bench of equal strength are conflicting, the issue of law involved must be referred to a larger bench as the same is desirable to avoid confusion and maintain consistency of law. In our view, the aforesaid judgments cited by the respective parties are conflicting, however, to avoid any further confusion and to maintain consistency, we deem it appropriate to refer this issue for decision by the larger bench to answer the following questions:
(1) Whether the ratio of the judgment, in the case of G. Sagar Suri (supra) and Kolla Veera Raghav Rao (supra) lay down the correct law?
or The view taken in the case of Sangeetaben Mahendrabhai Patel (supra) as followed in M/s V.S. Reddy and Sons (supra) which is subsequent and conflicting, lay down the correct proposition of law?
(2) Whether on similar set of allegations of fact the accused can be tried for an offence under NI Act which is special enactment and also for offences under IPC unaffected by the prior conviction or acquittal and, the bar of Section 300(1) Cr.P.C. would attract for such trial?"
Conclusion
20. Here in this case, the main prayer of the applicant is to quash the charge sheet dated 22.8.2017 arising out of Case Crime No. 139 of 2017 under Sections 419, 420, 467 and 468 IPC, Police Station Kydganj, District Prayagraj. From perusal of the record, it reveals that the agreement for sale of the house in question entered into between the applicant and the O.P. No.2 was premised on assertion that the owner of the said property had already executed an registered agreement deed in the name of the applicant, whereas in reality at the time the applicant received the monetary consideration from the O.P. No.2 pursuant to the agreement, the actual owner of the said house had not, in fact, entered into any such agreement in favour of the applicant.
21. Furthermore, the complaint filed by O.P. No.2 under the provisions of N.I. Act was instituted following the dis-honour of a cheque issued by the applicant in settlement of amount received by him pursuant to the said agreement. Therefore, an agreement entered into regarding the sale of property with the knowledge that title of the said property had not yet vested in the seller and the subsequent issuance of a cheque in payment of the consideration amount received pursuant to that agreement constituted two distinct transactions. It is further noteworthy that the applicant, having rescinded the agreement with the O.P. No.2 and subsequently, sold the property in question to a third party.
22. The offence under Section 138 N.I. Act has different aspect that the cheque has been issued by the applicant in favour of O.P. No. to discharge the legally enforceable debt or liability and the same has been dishonoured for reason indicated by the Bank in return of cheque and despite receiving the notice as per Act, the applicant has failed to pay the amount of cheque within the prescribed period under the statute, whereas for offence under Sections 419, 420, 467 and 468 IPC, it has to be proved by the prosecution that the applicant's intention to deceive existed at the very time the agreement regarding the disputed property was executed.
23. Here in the present FIR, it was allege that the applicant fraudulently obtained an advance payment and entered into an agreement with malafide intent. After the registration of FIR, charge sheet has been filed, of which the learned Magistrate has duly taken cognizance vide order dated 07.12.2017.
24. In Sangeetaben Mahendrabhai Patel vs. State of Gujarat and another (2012) 7 SCC 621 the Hon'ble Supreme Court in paragraph nos. 14, 15, 30 and 33 has held that:
"14. This Court in Maqbool Hussain [(1953) 1 SCC 736 : AIR 1953 SC 325 : 1953 Cri LJ 1432] held that the fundamental right which is guaranteed under Article 20(2) enunciates the principle of ?autrefois convict? or ?double jeopardy? i.e. a person must not be put in peril twice for the same offence. The doctrine is based on the ancient maxim nemo debet bis punire pro uno delicto, that is to say, that no one ought to be punished twice for one offence. The plea of autrefois convict or autrefois acquit avers that the person has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other and not that the facts relied on by the prosecution are the same in the two trials. A plea of autrefois acquit is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.
15. The Constitution Bench of this Court in S.A. Venkataraman v. Union of India [AIR 1954 SC 375 : 1954 Cri LJ 993] explained the scope of doctrine of double jeopardy, observing that in order to attract the provisions of Article 20(2) of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words ?prosecuted? and ?punished? are to be taken not distributively so as to mean prosecuted or punished. Both the factors must coexist in order that the operation of the clause may be attracted.
30. In State of Rajasthan v. Hat Singh [(2003) 2 SCC 152 : 2003 SCC (Cri) 451 : AIR 2003 SC 791] this Court held that as the offence of glorification of Sati under Section 5 of the Rajasthan Sati (Prevention) Act, 1987, is different from the offence of violation of prohibitory order issued under Section 6 thereof, the doctrine of double jeopardy was not attracted for the reason that even if the prohibitory order is promulgated, a subsequent criminal act even if it falls under Section 5 could not be covered under Section 6(3) of the said Act. Doctrine of double jeopardy is enshrined in Section 300 CrPC and Section 26 of the General Clauses Act. Both the provisions employ the expression ?same offence?.
33. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 CrPC or Section 71 IPC or Section 26 of the General Clauses Act, the ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge."
25. So, the test is the identity of the ingredient of the offence, not just the identity of the allegations, therefore, if the ingredients differs, a bar under Section 300 Cr.P.C. may not apply. The offence of cheating and forgery are generally connected to the creation of false documents to commit fraud. So, the plea taken by the applicant in the present petition is not acceptable at this stage. No case is made out to quash the entire charge-sheet dated 22.08.2017.
26. In view of the fact that no out of court settlement has been arrived at between the parties, the sum of Rs. 10,00,000/- (Ten Lakhs only), deposited in two installments vide Demand Draft No. 918756 dated 05.12.2025 amounting Rs. 5,00,000/- (Five Lakhs only) and Demand Draft No. 303735 dated 23.03.2026 amounting Rs. 5,00,000/- (Five Lakhs only) presently lying in a fixed deposit account with the State Bank of India, is no longer required to be retained by this Court and shall be released and returned to the applicant in its entirity.
27. The learned Registrar General is accordingly directed to release and disburse the aforesaid amount to the applicant in accordance with the prescribed Rules.
28. The present application lacks of merit and is accordingly dismissed.
(Jai Prakash Tiwari,J.) May 8, 2026 KK Patel