Amit Kumar Jaiswal And Another vs State Of U.P. And 3 Others

A.F.R.
RESERVED
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. WRIT PETITION No. - 11610 of 2026
Amit Kumar Jaiswal and another
…..Petitioner(s)
Versus
State of U.P. and 3 others
…..Respondent(s)
Counsel for Petitioner(s) : Anwar Hussain, Mohammad
Alam
Counsel for Respondent(s) : Deepak Upadhyay, G.A., Paras
Dubey, Rajesh Kumar Singh
Court No. - 47
HON'BLE RAJIV GUPTA, J.
HON'BLE DR. AJAY KUMAR-II, J.
(Per : DR. AJAY KUMAR-II, J.)
1. The instant writ petition filed on behalf of the petitioners
seeks quashing of the first information report dated 20.04.2026,
registered as Case Crime No.46 of 2026, under Sections 316(5),
318(4) of Bhartiya Nyaya Sanhita (B.N.S.), 2023, Police Station
Reotipur, District Ghazipur.
2. As per the allegations made in the impugned first
information report, which was lodged by the respondent no.4,
presently working as Assistant Manager in Hitachi Payment
Services Pvt. Ltd. (hereinafter referred to as 'the Company') and
has been appointed by the Company to pursue the present matter,

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it is averred that the said Company is a duly registered
Organization, which has been authorized by the Reserved Bank
of India to run / operate the ATM (Automated Teller Machine).
The Company operates ATM / CRM (Cash Recycling Machines)
machines across the Country for various Banks under the name
and style of  'Hitachi Money Spot', through which banking
facilities like cash deposit and cash withdrawal are provided to
the general public and ATM cardholders. To fulfill this purpose,
an agreement namely, 'Polaris Model Master Franchisee Service
Agreement' was executed on 12.08.2024 between the Company
and M/s. Asha Enterprises having its Proprietor Amit Kumar
Jaiswal (petitioner no.1), son of Shri Awadhesh Kumar Jaiswal,
resident of 9, Ward Number 6, Holika Mahal, Dildarnagar,
District Ghazipur, Uttar Pradesh - 232326 (Office: 36, Ward
Number 6, DL Road, Dildarnagar, Ghazipur). Under the said
agreement, ATM ID - MPZ 14364 was established at Ward
Number 12 Patti, Gelha Rai, Tehsil Zamania, Police Station
Reotipur, District Ghazipur, Uttar Pradesh - 232328. It was
proposed by Amit Kumar Jaiswal to the Company that his
subordinate employee Vishwajeet Raj son of Shri Santosh Kumar
(Aadhar Number: 7729-7279-9793), be authorized by the
Company to perform 'Axis Indent' withdrawals. Therefore, at the
request of Amit Kumar Jaiswal, the Company authorized
Vishwajeet Raj to withdraw funds via Axis Indent. The Company
issued Indent to Amit Kumar Jaiswal and his son Master
Franchisee Harsh Raj (petitioner no.2) and Vishwajeet Raj to
operate the said ATM through Hitachi's Account number
919020069430599 via Axis Bank, Ghazipur Branch. In addition
to this, a total amount of Rs.7,25,70,200/- (Rupees Seven Crores
Twenty Five Lakh Seventy Thousand Two Hundred) was
provided through Union Bank of India Account number
441501010250763, IFSC: UBIN0544159, held by account holder

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Asha Enterprises. Against this, a total amount of Rs.7,22,61,800/-
(Rupees Seven Crore Twenty Two Lakh Sixty One Thousand
Eight Hundred) was withdrawn by ATM cardholders. After
reviewing the ATM switch data, it has come out that an amount of
Rs. 3,08,400/- (Rupees Three Lakhs Eight Thousand Four
Hundred) was less loaded into the ATM. Despite this, Amit
Kumar Jaiswal and his son Master Franchisee Harsh Raj and
Vishwajeet Raj kept providing wrong information and misleading
the Company regarding the cash loading and they tried to
show/convince that the entire amount was loaded into the ATM.
This act has not only caused financial loss to the Company but
has also caused inconvenience to the general public due to the
disruption of ATM services. In the relevant terms and conditions
of the aforementioned agreement, especially in Clause 1, Sub-
clause (m) of the agreement, responsibilities regarding cash
management and security were clearly defined for Amit Kumar
Jaiswal and his son Master Franchisee Harsh Raj. Under the
present agreement, amongst other things agreed by and between
the Parties hereto, the Master Franchise Agent shall (i) act as the
custodian of the ATM/CRM and other related assets installed in
the said Premises; (ii) be the trustee of the physical cash amount
lying at the ATM/CRM vault and will provide necessary security
to the cash to prevent any kind of incidents like robbery or theft;
(iii) keep and maintain the said Premises at all time in clean,
hygienic and good condition (iv) withdraw the cash amount as
per the requirement, which shall be determined by the Company
from time to time, from the designated bank A/c (a Designated
Bank A/c is an A/c opened up by the Master Franchise Agent in
his individual name at a local branch exclusively used for the
purpose of withdrawing cash to replenish into the ATM/CRM and
this designated Bank A/c shall not be utilized for his/her other
personal use including but not limited to deposit, transfer or

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withdrawn of amount for his personal use) (v) the amount
withdrawn from the Designated bank A/c shall be replenished
into the ATM/CRM machine installed in the said Premises to
enable the cardholders to withdraw the cash; (vi) at no point of
time remove the cash amount from the ATM/CRM and
misappropriate the same for his/her personal use; (vii) ensure that
the camera installed in the said Premises is functioning properly
and if the camera is found to be defective, then the Master
Franchise Agent should immediately inform the Company; (viii)
to assist the Company's representative to carry out required First
Level Maintenance (FLM) or Second Level Maintenance (SLM)
services in the said Premises; and (ix) such other activities as may
be informed by the Company from time to time. According to
Clause 1, Sub-clause (o) of the agreement, The Master Franchise
Agent shall, under no circumstances, use any cash amount or
intermingle funds, from his / her own source or from any third-
party source without approval of the Company in writing for the
purpose of replenishment. The Master Franchise Agent will use
the currency notes withdrawn from the Designated Bank A/c only
for replenishing it into the ATM/CRM. The Master Franchise
Agent hereby agrees and aware that if he / she utilizes the
currency notes from sources other than the one withdrawn from
the Designated Bank A/c, then it will be considered as a material
breach of this Agreement and the Master Franchise Agent shall be
solely liable and responsible for the consequences arising
therefrom. In such case, the Company shall be entitled to
forthwith terminate this Agreement and forfeit the security
deposit amount maintained with the Company without any
intimation to the Master Franchise Agent. Clear instructions of
the Company were that if for any reason the cash amount could
not be loaded into the ATM, then it would be mandatory to return
it to the Company. However, Amit Kumar Jaiswal and his son

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Master Franchisee Harsh Raj and Vishwajeet Raj, deliberately did
not return the remaining amount to the Company and misled the
Company by giving false information. After the ATM switch data
was updated, fraud was detected, and despite several requests for
the return of the amount being made in writing and verbally,
neither was the money returned, nor was any satisfactory
clarification provided by them to the Company. Thus, Amit
Kumar Jaiswal and his son Master Franchisee Harsh Raj and
Vishwajeet Raj, while acting in the capacity of a banking agent,
have embezzled the Company's funds under a pre-planned
conspiracy, which falls under the category of a punishable
offence. The complainant (respondent no.4) had submitted an
application regarding the above to the Police Station Reotipur on
24.01.2026, but the Reotipur Police have neither taken any action
till date nor have they registered the complainant's case, due to
which this application is being moved. Request has been made to
register the case against Amit Kumar Jaiswal and his son Master
Franchisee Harsh Raj and Vishwajeet Raj and initiate legal
proceedings.
3. Heard learned counsel for the petitioners, learned AGA for
the State, Shri Deepak Upadhyay alongwith Shri Rajesh Kumar
Singh, learned counsel for the respondent no.4 and perused the
record.
4. Learned counsel for the petitioners submitted that the
present first information report was lodged on 20.04.2026, by the
respondent no.4 giving rise to Case Crime No.46 of 2026, under
Sections 316(5), 318(4) of B.N.S., 2023 for alleged
misappropriation of Rs.3,08,400/-. A bare reading of the present
first information report clearly demonstrates that the dispute /
entire allegation arises out of ATM cash loading, withdrawal and

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reconciliation under commercial agreements dated 12.08.2024
and 21.04.2025 executed between the parties.
5. Learned counsel for the petitioners further submitted that
the aforesaid agreements specifically contain a clause regarding
arbitration. The said arbitration clause clearly establishes that any
dispute that arises under the aforesaid agreements shall be
attempted to settle through negotiation and mutual agreement and
if it could not be settled through such negotiation and mutual
agreement, then it shall be finally settled by sole Arbitrator, which
shall be appointed by the informant Company. The award of the
Arbitrator shall be final and binding between the parties. A bare
perusal of the first information report reveals that the dispute is
based upon internal reconciliation of ATM cash and alleged
outstanding amount, which squarely falls within the scope of
dispute contemplated under the aforesaid arbitration clause.
Therefore, the dispute between the parties is purely contractual
and arbitral in nature. However, the respondent no.4 has
deliberately bypassed the agreed arbitral mechanism and had
resorted to criminal proceedings in order to exert pressure upon
the petitioners for recovery of alleged due amount, which is
impermissible in law. Earlier, the petitioner no.1 had already
moved an application under Section 173(4) B.N.S.S. against the
respondent no.4 and other persons, which is still pending.
6. Learned counsel for the petitioners next submitted that on
receipt of show cause notice cum demand notice dated
06.01.2026, the petitioner no.2 had given a legal notice on
13.01.2026 and had also replied on 21.01.2026 to the show cause
notice cum demand notice specifically denying any breach of
trust as alleged in the show cause notice cum demand notice
dated 06.01.2026, but on 09.02.2026, the informant Company had

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terminated the aforesaid agreements executed between the parties
and had also forfeited the security deposit.
7. Learned counsel for the petitioners next submitted that the
entire allegations, even if taken at its face value, do not disclose
the essential ingredients of offence under Sections 316(5), 318(4)
of B.N.S., as the dispute is purely civil in nature arising out of
contractual obligations and thus no criminal proceedings could
have been instituted as a substitute for civil remedies. Even
otherwise the responding no.4 has lodged multiple F.I.R.s on the
same cause of action, which is impermissible in view of the law
laid down by the Hon'ble Supreme Court in T.T. Antony Vs. State
of Kerala & Others, 2001 (6) SCC 181 and Babubhai Vs. State of
Gujarat & Others, 2010 (12) SCC 254.
8. Learned counsel for the petitioners further submitted that
the impugned first information report has been lodged with
malafide intention and ulterior motive and it is a classic example
of abuse of criminal machinery for settling civil dispute and
continuation of the impugned criminal proceedings would result
in miscarriage of justice and irreparable injury to the petitioners.
9. It was lastly argued that the present proceedings are liable
to be quashed in view of the settled law that where a dispute is
predominantly civil in nature with no element of criminality, the
same cannot be allowed to continue as criminal case. 
10. Per contra, learned A.G.A. as well as learned counsel for
the respondent no.4 vehemently opposed the prayer for quashing
of the F.I.R. as well as the submissions made by learned counsel
for the petitioners and submitted that in the present case, the act
of the petitioners has not only caused financial loss to the
Company but has also caused inconvenience to the general public

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owing to the disruption of ATM services. They have embezzled
the Company's funds by hatching conspiracy. Neither the
embezzled money was returned nor any plausible explanation for
the same was given by the petitioners. In this way, the petitioners
have siphoned off the money meant for ATM cash replenishment
by keeping the Company in dark. The petitioners were entrusted
with collecting cash from the Bank and depositing it into ATM.
However, instead of loading the cash, they pocketed the money.
11. Learned A.G.A. as well as learned counsel for the
respondent no.4 next submitted that from the allegations made in
the impugned first information report, involvement of the
petitioners is writ large on the face of it and prima facie, offence
is clearly disclosed against the petitioners and the matter requires
deep probe and thorough investigation.
12. Lastly, they submitted that from the allegations made in the
first information report, prima facie offence, complained of, is
clearly disclosed against the petitioner and, as such, the first
information report cannot be quashed in view of the law laid
down by the Supreme Court in the case of State of Telangana vs.
Habib Abdullah Jellani reported in (2017) 2 SCC 779, Neeharika
Infrastructure Pvt. Ltd. vs. State of Maharashtra and Others
reported in (2021) SCC Online SC 315 and in a recent decision of
the Hon'ble Apex Court reported in (2024) 5 SCC 419,
Directorate of Enforcement Vs. Niraj Tyagi and others.
13. Having considered the rival submissions made by the
learned counsel for the parties, we have carefully perused the
allegations made in impugned first information report as well as
the documents annexed with the petition in regard to the aforesaid
agreements.

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14. A bare perusal of the first information report clearly reveals
that the petitioner no.1 executed an agreement namely, 'Polaris
Model Master Franchisee Service Agreement' with the Company.
Thus, it is crystal clear that petitioner no.1 was working as an
Agent of Hitachi Payment Services Pvt. Ltd. As per Clause 1 (n)
of the agreement, petitioner no.1 was the custodian of the
ATM/CRM and was also trustee of the physical cash amount
lying at the ATM/CRM vault. There is a clear stipulation in the
agreement that the cash amount withdrawn from the local Branch
was to be replenished into the ATM/CRM. It was also clearly
stipulated that the cash amount so withdrawn for this purpose
shall not be utilized for his other personal use. It was also clearly
stipulated that at no point of time, the petitioner shall remove the
cash amount from the ATM/CRM and misappropriate the same
for his personal use. Thus, the petitioner no.1 was duty bound to
act strictly in accordance with the terms and conditions of the
agreement. At no point of time, he was authorized to withdraw
the cash amount from the concerned Branch for his own personal
utilization instead of replenishing the whole such withdrawn cash
into the designated ATM/CRM.
15. The role of petitioner no.2 is also clearly specified in the
first information report that it was on the instructions of petitioner
no.1, his son petitioner no.2 and one Vishwajeet Raj were
authorized to receive cash amount from the authorized Bank by
issuing an indent. There is a clear averment that a total of
Rs.7,25,70,200/- was withdrawn and against this amount, an
amount of Rs.7,22,61,800/- was withdrawn by the ATM
cardholders. However, an amount of Rs.3,08,400/- was not
loaded in the designated ATM/CRM, causing a loss to the
Company, and resultantly an unlawful gain to the petitioners. The
aforesaid misappropriation of money amounting to Rs.3,08,400/-

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was done by the petitioners while working as an Agent of Hitachi
Payment Services Pvt. Ltd., violating the terms and conditions of
the agreement. The aforesaid act is prima facie an offence,
covered under Sections 316(5) of B.N.S., 2023.
16. From the facts stated in the first information report, it is
apparent that the Company and ATM cardholders were deprived
of an amount of Rs.3,08,400/-, which resulted into causing
wrongful loss to the Company and was a wrongful gain to the
petitioners. By committing wrongful fraudulent act and violating
the terms and conditions of the agreement, the petitioners
embezzled and misappropriated an amount of Rs.3,08,400/- of
the Company. Thus, there seems to be necessary mens rea in the
present case as far as petitioners are concerned. Law is well
settled that the same set of facts can give rise both to civil
liability and a criminal prosecution if the facts constitute a mens
rea. If there is no mens rea or if the other essential ingredients of
an offence are lacking in such facts, only then the same facts may
not sustain a criminal prosecution, though a civil action may lie.
17. The Hon’ble Apex Court in Kathyayini Vs. Sidharth P.S.
Reddy & Ors., 2025 INSC 818, has clearly held that there is no
bar against prosecution during the pendency of a civil suit if the
offences punishable under criminal law are made out against the
parties. The Hon’ble Apex Court has clearly observed by relying
on its previous judgment in K. Jagadish Vs. Udaya Kumar G.S.
and another, (2020) 14 SCC 552 that it is well settled that in
certain cases the very same set of facts may give rise to remedies
in civil as well as in criminal proceedings and even if a civil
remedy is availed by a party, he is not precluded from setting in
motion the proceedings in criminal law. The other relevant

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paragraphs 20 and 21 of the Kathyayini (supra) case are
reproduced here-in-below.
20. In Pratibha Rani v. Suraj Kumar and another, (1985) 2 SCC
370, this Court summed up the distinction between the two remedies as
under :
“21. … There are a large number of cases where criminal law and
civil law can run side by side. The two remedies are not mutually
exclusive but clearly coextensive and essentially differ in their content
and consequence. The object of the criminal law is to punish an offender
who commits an offence against a person, property or the State for
which the accused, on proof of the offence, is deprived of his liberty and
in some cases even his life. This does not, however, affect the civil
remedies at all for suing the wrongdoer in cases like arson, accidents,
etc. It is an anathema to suppose that when a civil remedy is available, a
criminal prosecution is completely barred. The two types of actions are
quite different in content, scope and import. It is not at all intelligible to
us to take the stand that if the husband dishonestly misappropriates the
stridhan property of his wife, though kept in his custody, that would bar
prosecution under Section 406 IPC or render the ingredients of Section
405 IPC nugatory or abortive. To say that because the stridhan of a
married woman is kept in the custody of her husband, no action against
him can be taken as no offence is committed is to override and distort the
real intent of the law.”
21. The aforesaid view was reiterated in Kamaladevi Agarwal v.
State of W.B. and others, (2002) 1 SCC 555,
“17. In view of the preponderance of authorities to the contrary, we are
satisfied that the High Court was not justified in quashing the
proceedings initiated by the appellant against the respondents. We are
also not impressed by the argument that as the civil suit was pending in
the High Court, the Magistrate was not justified to proceed with the
criminal case either in law or on the basis of propriety. Criminal cases
have to be proceeded with in accordance with the procedure as
prescribed under the Code of Criminal Procedure and the pendency of a
civil action in a different court even though higher in status and
authority, cannot be made a basis for quashing of the proceedings.”
18. The Apex Court in Punit Beriwala V. The State of NCT of
Delhi and Ors. 2025 SCC OnLine SC 983 reiterating the same in
para 28 has held thus:
“28. It is trite law that mere institution of civil proceedings is not a
ground for quashing the FIR or to hold that the dispute is merely a civil
dispute. This Court in various judgments, has held that simply because
there is a remedy provided for breach of contract, that does not by itself
clothe the Court to conclude that civil remedy is the only remedy, and

12
the initiation of criminal proceedings, in any manner, will be an abuse of
the process of the court. This Court is of the view that because the
offence was committed during a commercial transaction, it would not be
sufficient to hold that the complaint did not warrant a further
investigation and if necessary, a trial.”
19. Thus, law has been well settled that pendency of civil
proceedings or availability of civil remedies on the same subject
matter involving the same parties is no justification to quash the
criminal proceedings if a prima facie case exists against the
accused persons.
20. It is no doubt true that an arbitration clause [clause 20 (e)]
exists in the present case and binds parties to seek adjudication of
their disputes, before an Arbitrator. The mere existence of an
arbitration clause cannot prevent criminal prosecution against the
petitioners, if an act constituting a criminal offence is made out
even prima facie. As already held hereinbefore, a given set of
facts may give rise to both civil and/or criminal consequences.
The existence of one would not necessarily rule out the other. An
arbitration clause enables parties to seek adjudication of the civil
consequences of the violation of a contract. An arbitration clause
does not envisages adjudication of criminal consequences of an
alleged breach of contract. The Arbitrator, would obviously
adjudicate the civil consequences of the violation of the the
contract and if this violation leads to the commission of a
criminal offence, the Arbitrator would have no jurisdiction to
investigate or launch prosecution, in respect thereof. The criminal
prosecution and remedy by way of arbitration are two separate
and distinct courses available to an aggrieved party. The mere
existence of an arbitration clause or even the pendency of
arbitration proceedings or availability of civil remedies would, in
our considered opinion, not oust the jurisdiction of criminal
Courts, to consider whether on the facts narrated in the FIR, a
criminal offence has been committed.

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21. The conclusion that the existence of an arbitration clause is
not a bar to the initiation of criminal proceedings is fortified by a
judgment of the Hon'ble Supreme Court in Trisuns Chemical
Industry v. Rajesh Aggarwal, 1994(4) RCR (Crl.) 223 (SC)
(supra)." In Trisuns Chemical 's case (supra), it was held as
under:-
"We are unable to appreciate the reasoning that the provision
incorporated in the agreement for referring the disputes to arbitration is
an effective substitute for a criminal prosecution when the disputed act is
an offence. Arbitration is a remedy for affording reliefs to the party
affected by breach of the agreement but the arbitrator cannot conduct a
trial of any act which amounted to an offence albeit the same act may be
connected with the discharge of any function under the agreement.
Hence, those are not good reasons for the High Court to axe down the
complaint at the threshold itself. The investigating agency should have
had the freedom to go into the whole gamut of the allegations and to
reach a conclusion of its own. Pre-emption of such investigation would
be justified only in very extreme cases as indicated in Bhajan Lal v. State
of Haryana."
22. The Apex Court in Digambar Pathak V. State of UP SLP
(Cr.) No. 7341 of 2025 in para 8 has again observed as under:
“8. In such circumstances, before taking a decision to quash the
proceedings arising from FIR, it was incumbent upon the High Court,
exercising powers under Section 482 of the Code of Criminal Procedure,
1973, to advert to the allegations and the materials collected during the
course of investigation so as to find out whether a prima facie case is
made out or not to proceed against the accused. The High Court quashed
the proceedings on the singular ground that there is an arbitration
agreement between the parties where they can resolve their differences
amicably. It is well-settled that mere existence of an arbitration clause in
the contract between the parties is not a sufficient ground for quashing
the criminal proceedings if the necessary ingredients of a criminal
offence are made out from the allegations and the materials collected
during the course of investigation or inquiry.[Trisuns Chemical Industry
V. Rajesh Agarwal & Others (1999) 8 SCC 686]”
23. While reverting back to the facts of present case, it is clear
that it is a case where the Company has suffered a wrongful loss
of Rs.3,08,400/-, therefore, in this situation, the aforesaid
Company has a right to institute civil proceedings for the
recovery of aforesaid amount. However, the Company is also at
liberty to invoke arbitration clause for recovering the aforesaid

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amount. The arbitration clause of the agreement cannot be read as
a bar to institution of criminal proceedings, if an offence is prima
facie made out against the petitioners. By invoking the arbitration
clause, either the Company can initiate proceedings for recovery
of its wrongful loss or even the petitioners can invoke the
aforesaid arbitration clause to challenge the termination of their
agreement, but by no stretch of imagination, the aforesaid
arbitration clause can be read as a bar to initiation of criminal
proceedings against the petitioners for their such acts, which
prima facie constitute the commission of a cognizable offence.
24. We have also carefully gone through the F.I.R. No.46 dated
20.04.2026 and F.I.R. No.253 dated 17.04.2026. It was argued
that for same cause of action, two different F.I.R.s have been
registered, which is impermissible in law. However, perusal of
both the F.I.R.s clearly reveals that these two F.I.R.s have been
lodged for two different ATM machines installed at two different
places. Even the amount involved in these two F.I.R.s is totally
different. In F.I.R. No.46, there is an embezzlement of an amount
of Rs.3,08,400/-, whereas in F.I.R. No.253, there is an
embezzlement of Rs.30,95,700/- after a deposit of Rs.8,09,700/-
on 18.11.2025 and a deposit of Rs.4,32,200/- on 19.11.2025 by
the petitioners. Therefore, both these F.I.R.s have been registered
for different set of facts for two different locations and even the
F.I.R.s have been lodged in two different police stations, meaning
thereby that the jurisdiction to lodge and investigate the offences
alleged in those F.I.R.s vests in two different police stations.
Therefore, in the totality of the circumstances, these two F.I.R.s
are not lodged on the same cause of action. Thus, we find no
force in the arguments so raised by the learned counsel for the
petitioners.

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25. In the light of aforesaid discussions and keeping in view the
principles of law laid down by Hon'ble Apex Court in the
decisions cited above, we are of the opinion that the impugned
first information report cannot be quashed qua the petitioners at
this nascent stage.
26. The prayer for quashing of the first information report is
therefore, refused.
27. The instant writ petition lacks merit and is accordingly
dismissed.
July 15, 2026
ss
(Dr. Ajay Kumar-II,J.) (Rajiv Gupta,J.)
Digitally signed by :-
SANDEEP SHARMA
High Court of Judicature at Allahabad