vexatious criminal complaints by camouflaging allegations which were ex facie outrageous or pure civil claims.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2328 OF 2022

DEEPAK GABA AND OTHERS ... APPELLANTS

VERSUS

STATE OF UTTAR PRADESH AND ANOTHER ... RESPONDENTS

J U D G M E N T

SANJIV KHANNA, J

21. We are, therefore, of the opinion that the assertions made in the 

complaint and the pre-summoning evidence led by respondent no. 

2 - complainant fail to establish the conditions and incidence of the 

penal liability set out under Sections 405, 420, and 471 of the IPC, 

as the allegations pertain to alleged breach of contractual 

obligations. Pertinently, this Court, in a number of cases, has

noticed attempts made by parties to invoke jurisdiction of criminal 

courts, by filing vexatious criminal complaints by camouflaging 

allegations which were ex facie outrageous or pure civil claims. 

These attempts are not be entertained and should be dismissed at 

the threshold. To avoid prolixity, we would only like to refer to the

judgment of this Court in Thermax Limited and Others v. K.M. 

Johny

16

, as it refers to earlier case laws in copious detail. In 

Thermax Limited and Others (Supra), it was pointed that the court 

16 (2011) 13 SCC 412.

Criminal Appeal No.2328 of 2022 Page 20 of 23

should be watchful of the difference between civil and criminal 

wrongs, though there can be situations where the allegations may 

constitute both civil and criminal wrongs. The court must cautiously 

examine the facts to ascertain whether they only constitute a civil 

wrong, as the ingredients of criminal wrong are missing. A 

conscious application of the said aspects is required by the 

Magistrate, as a summoning order has grave consequences of 

setting criminal proceedings in motion. Even though at the stage of 

issuing process to the accused the Magistrate is not required to 

record detailed reasons, there should be adequate evidence on 

record to set the criminal proceedings into motion. The requirement 

of Section 204 of the Code is that the Magistrate should carefully 

scrutinize the evidence brought on record. He/she may even put 

questions to complainant and his/her witnesses when examined 

under Section 200 of the Code to elicit answers to find out the truth 

about the allegations. Only upon being satisfied that there is

sufficient ground for summoning the accused to stand the trial, 

summons should be issued.17 Summoning order is to be passed 

when the complainant discloses the offence, and when there is 

material that supports and constitutes essential ingredients of the 

17 Birla Corporation Limited v. Adventz Investments and Holdings Limited and Others, (2019) 16 SCC 

610; Pepsi Foods Ltd. (Supra); and Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 

SCC 420. 

Criminal Appeal No.2328 of 2022 Page 21 of 23

offence. It should not be passed lightly or as a matter of course.

When the violation of law alleged is clearly debatable and doubtful, 

either on account of paucity and lack of clarity of facts, or on 

application of law to the facts, the Magistrate must ensure 

clarification of the ambiguities. Summoning without appreciation of 

the legal provisions and their application to the facts may result in 

an innocent being summoned to stand the prosecution/trial.

Initiation of prosecution and summoning of the accused to stand 

trial, apart from monetary loss, sacrifice of time, and effort to 

prepare a defence, also causes humiliation and disrepute in the 

society. It results in anxiety of uncertain times.