Criminal Application No. 1438 of 2022 · Bombaybench High Court · 2025

13.Cri.Appln.-1438-2022.odtJ U D G M E N T (Per Mehroz K. Pathan, J.) :1.The Applicants have filed the present application forquashing of the First Information Report registered as CrimeNo.051/2022 at S.B. Police Station, Jalna for the offencespunishable under Sections 420, 406 and 34 of the Indian PenalCode.2.During the pendency of the present application, theRespondent/Sadar Bazar Police Station, where the crime wasregistered, has filed the charge-sheet before the learnedjurisdictional Court i.e. Judicial Magistrate First Class, Jalna. TheApplicants – Prajakta and Girdharilal have thus amended theapplication for quashing and now sought quashment of the entirecharge-sheet and the proceeding bearing RCC No.1058/2022pending before the Judicial Magistrate First Class, Jalna.3.The brief facts in a nutshell are as under :.That the complainant – Jawahar Dembda has filed acomplaint before the police station, thereby stating that he was aresident of Jalna and friend of the Accused No.1/MahendraGirdharilal Agrawal. The complainant used to visit the house ofMahendra Girdharilal Agrawal and therefore knew his father –Girdharilal Agrawal and Mahendra’s wife – Prajakta MahendraAgrawal. The Agrawal family had a business of Mahendra Tyres.4.It is alleged by the complainant that in the year 2019, theaccused/Girdharilal and Prajakta alongwith Mahendra had askedthe complainant to join them into a new business venture as a[2]

13.Cri.Appln.-1438-2022.odtpartner. The accused persons had assured that the business ofreal estate, is going to flourish in the future, and time and againinduced the complainant to invest into the real estate project,despite of the initial reluctance of the complainant. On the day ofVijayadashami in the year 2019, there was a meeting with all theaccused persons with the complainant and it was decided thatthey would purchase the land and after demarcating plots, thesame would be sold to the public in general and whatever profitsthat would be coming out of such project, would be equallyshared by all the four persons. It was further decided that if anyof the partners wants to induct some new partners, it would befrom their personal share and not the share of other partners.That the complainant has thus deposited an amount of Rs.25Lacs alongwith the other partners to raise a capital to purchasethe land after about eight to ten days of the meeting in the year2019.5.The three accused persons have allegedly assured thecomplainant that a land admeasuring area 10 acre would bepurchased in the city of Jalna and that further plot would bedemarcated and sold and it was assured that the registry of thesaid plot would be executed till Diwali 2019. However the registryof the said plot was not executed even after Diwali 2019 and assuch the complainant inquired about the same from the accusedpersons. The accused persons replied that though the amount ofconsideration was paid to the land owner, however the landowner is demanding more amount of consideration as the landrates have increased due to passage of time. It was then stated[3]

13.Cri.Appln.-1438-2022.odtby the accused persons that additional amount of Rs.25 Lacswould be required to be deposited by all the partners.6.The complainant was not ready to deposit such additionalamount of Rs.25 Lacs and asked the accused persons to returnback his initial amount of Rs.25 Lacs. However the accusedpersons have informed the complainant that if he does notdeposit 25 Lacs rupees more, then the other partners would beinducted by them as huge profits are going to be earned bypurchase of such land by the partners. It was also informed thatthey would be returning the complainant 25 Lacs rupees onlyafter the profits are gained out of the project. The complainantwas therefore allegedly induced by the accused persons toadditionally deposit an amount of Rs.25 Lacs. However this timethe complainant got an agreement prepared on a stamp paper ofRs.100 thereby mentioning about the payment of Rs.25 Lacs inaddition to the earlier amount of Rs.25 Lacs paid to the accusedfor purchasing of the land which was signed by accusedNo.1/Mahendra Girdharilal Agrawal. The accused persons haveassured in the agreement that the registry/sale deed of the plotintended to be purchased would be executed by March, 2020. 7.It is stated that in the FIR that as Corona had spread itswings in the month of March 2020 and there was a lock-down,the registry could not be executed. The complainant hadthereafter time and again requested the accused persons forexecution of the sale deed. However it was informed thataccused no. 1/Mahendra Girdharilal Agrawal had died due to[4]

13.Cri.Appln.-1438-2022.odtcorona on 11.07.2020. After the mourning period was over, thecomplainant had visited the house of Mahendra, requesting forexecution of sale deed to the Applicants – Girdharilal (father) andPrajakta (wife). However they refused to execute any suchagreement or payback the amount deposited by the complainant.The complainant further alleges in the FIR that as the wife of thecomplainant is suffering from cancer, he was required to spendan amount of Rs.70 to 80 Lacs for her medical treatment and assuch when he had approached the accused Girdharilal (father)and Prajakta (wife of the deceased Mahendra), the accusedpersons informed that the land owner has taken the money andis not returning back, however they did not disclose the name ofthe land owner. The complainant suspected the conduct of theaccused no.2- Girdharilal (father) and Prajakta (wife of thedeceased Mahendra), and realized that such act on the part ofthe complainant amounts to cheating the complainant of his hardearned money of Rs.50 Lacs and criminal breach of trust as theApplicants have not purchased the land in the city of Jalna norreturned back the amount to the complainant. The complainantthus prayed for appropriate action against the accused persons. 8.The Applicants Prajakta and Girdharilal (wife and father ofMahendra) have approached this Hon’ble Court, seekingquashment of the said FIR and the charge-sheet on the groundthat this is the fit case, wherein the civil dispute has been givena colour of the criminal offence. The Counsel for the Applicantswould submit that the agreement executed on a stamp paperdated 08.01.2020 which is mentioned in the FIR, is executed by[5]

13.Cri.Appln.-1438-2022.odtMahendra Girdharilal Agrawal who has already expired on11.07.2020. The said agreement nowhere bears the signature ofthe Applicants - Girdharilal (father) and Prajakta (wife ofdeceased Mahendra). The main thrust of the arguments of theApplicants is that prior to the said agreement dated 08.01.2020,also there is no agreement on record to show that the Applicantswere the partners in any such firm, wherein the amount wasallegedly deposited by the Applicants. The agreement dated08.01.2020, cannot be used by the Complainant to lodge thecriminal prosecution against the present Applicants who are thefather and wife of the deceased Mahendra.9.The learned Counsel for the Applicants would further submitthat the cheque bearing no. 904816 drawn on State Bank ofIndia mentioned in the agreement dated 08.01.2020, was neverdeposited by the complainant, for withdrawing amount of Rs.50Lacs and the letter dated 17.02.2022 issued by the Bank in factshows that the cheque bearing no.904816 issued by Mahendrawas not presented by the complainant for encashment. TheCounsel for the Applicants would also submit that there isnothing on record to show that such huge amount was there withthe complainant to be paid in cash. The Income Tax Returns arenot filed by the complainant to show that any such realtransaction had ever taken place in such huge amount. It isfurther submitted that the agreement as well as FIR nowheremention the details of the land which was decided to bepurchased allegedly by the deceased Mahendra or the accusedApplicants in partnership with the complainant. [6]

13.Cri.Appln.-1438-2022.odt10.The another limb of argument on behalf of the Counsel forthe Applicants Mr. Bagdiya, is that the complainant has alreadyfiled a suit for recovery against the Applicants before the learnedCivil Court. A copy of the civil suit is tendered at the bar, whichshows that a civil suit bearing Special Civil Suit No.324/2023 isfiled by the complainant – Jawahar Dembda against theDefendants – Prajakta and Girdharilal. That even in the said civilsuit, there is a specific mention about the cheque no. 904816issued at the State Bank of India branch Jalna, wherein thedeceased Mahendra Agrawal alone had promised to pay back theamount of Rs.50 Lacs to the complainant, if the same is notutilized for purchasing of the land. It is thus submitted that apartfrom the bare allegations in the FIR, there is nothing on record toshow that the Applicants were a party to any such agreement orsubsequent additional agreement dated 08.01.2020. The Counselfor the Applicants vehemently submitted that in the absence ofany intention on the part of the Applicants to cheat or defraudthe complainant, the First Information Report and theconsequent filing of the charge-sheet is nothing but an abuse ofprocess of law which is one of the grounds for interference of thisCourt to exercise inherent powers under Section 482 of the Codeof Criminal Procedure. 11.The learned Counsel for the Applicants has relied upon therecent judgment delivered by the Hon’ble Supreme Courtreported in (2024) 10 SCC 690 in the matter of Delhi Race Club(1940) Limited and Others Vs. State of Uttar Pradesh andAnother, to buttress his submission that if the complainant[7]

13.Cri.Appln.-1438-2022.odtclaims that the offence of criminal breach of trust as definedunder Section 405, punishable under Section 406, is committedby the accused, then in the same breath it cannot be said thatthe accused had also committed the offence of cheating asdefined and explained in Section 415 IPC, which is punishableunder Section 420 IPC, wherein the Hon’ble Supreme Court hasheld as under : “43.There is a distinction between criminal breach of trust and cheating. Forcheating, criminal intention is necessary at the time of making a false or misleadingrepresentation i.e. since inception. In criminal breach of trust, mere proof ofentrustment is sufficient. Thus, in case of criminal breach of trust, the offender islawfully entrusted with the property, and he dishonestly misappropriated the same.Whereas, in case of cheating, the offender fraudulently or dishonestly induces aperson by deceiving him to deliver any property. In such a situation, both theoffences cannot co-exist simultaneously.”12.The Hon’ble Supreme Court in the aforesaid judgment hasalso made observation as under :“55.It is high time that the police officers across the country are imparted propertraining in law so as to understand the fine distinction between the offence ofcheating viz-a-viz criminal breach of trust. Both offences are independent and distinct.The two offences cannot coexist simultaneously in the same set of facts. They areantithetical to each other. The two provisions of the IPC (now BNS, 2023) are nottwins that they cannot survive without each other..”13.The learned Counsel for the Applicants Mr. Bagdiya hasfurther relied on the judgment of the Hon’ble Supreme Court inthe case of Rama Devi Vs. State of Bihar and Ors., reported in2011 Cri. L.J. 652, wherein it is held that absence of anyintention on the part of the accused to cheat or defraudcomplainant, the complainant at best can claim damages. 14.The learned Counsel Mr. Bagdiya has further relied on the[8]

13.Cri.Appln.-1438-2022.odtjudgment of the Hon’ble Supreme Court in the case of AnandKumar Mohatta and Anr. Vs. State (Govt. of NCT of Delhi),Department of Home and Anr., reported in 2019(11) SCC 706,wherein it is held that “Essence of offence of criminal breach oftrust lies in the use of property entrusted to person by thatperson in violation of any direction of law or any legal contractwhich he has made during discharge of such trust.” Amount notpaid is a dispute civil in nature and does not constitute criminalbreach of trust. 15.The learned Counsel Mr. Bagdiya has further relied on thejudgment of the Hon’ble Supreme Court in the case of Sardar AliKhan Vs. State of Uttar Pradesh through Principal SecretaryHome Department, reported in AIR 2020 SCC 626, wherein anidentical First Information Report under Sections 419, 420, 467,468, 471 was quashed and set aside, holding that the recordshows that dispute was mainly civil in nature for which civil suitis already pending.16.The final judgment relied upon by the learned Counsel forthe Applicants Mr. Bagdiya is in the case of Prof. R.K.Vijayasarathy & Anr. Vs. Sudha Seetharam & Anr., reported in2019(16) SCC 739, wherein the Hon’ble Supreme Court has laiddown as under :“23.The jurisdiction under Section 482 of the Code of Criminal Procedure has tobe exercised with care. In the exercise of its jurisdiction, a High Court can examinewhether a matter which is essentially of a civil nature has been given a cloak of acriminal offence. Where the ingredients required to constitute a criminal offence arenot made out from a bare reading of the complaint, the continuation of the criminalproceeding will constitute an abuse of the process of the Court.”[9]

13.Cri.Appln.-1438-2022.odt17.Per contra, the learned Counsel for Respondent No.2 Mr.Sikchi has supported the First Information Report and the filingof the charge-sheet. It is stated that there are two witnesses ofthe agreement dated 08.01.2020 who have categorically made astatement about the execution of the agreement, wherein it wasadmitted that an amount of Rs.25 Lacs is being paid by thecomplainant, in addition to the earlier amount of Rs.25 Lacsdeposited by the complainant as his share for purchasing theland in Jalna city. The witnesses- Kishor Bharuka and SunilAgrawal, clearly state about the role of the present Applicants, ininducing the complainant to deliver the amount. Mr. Sikchi hasfurther argued that there is a variance in the date of knowledgementioned by the accused persons Girdharilal as well asPrajakta. The date of knowledge of such agreement is stated as21.02.2022, the date of knowledge is stated by Prajakta as07.02.2022. The Applicants being wife and the father of thedeceased Mahendra, cannot claim ignorance particularly whenthe witnesses- Kishor Bharuka and Sunil Agrawal specificallyasserted their involvement and presence at the time of initialpayment of Rs.25 Lacs and also at the time of execution ofagreement dated 08.01.2020.18.Mr. Sikchi has further argued that the statement of Mr. DilipBhandarge at page 116 of the paper book, would show that hehad sold the 100 rupees stamp paper to Mahendra Agrawal andthe memorandum of agreement was written in his presence andthat the deceased Mahendra Girdharilal Agrawal and JawarDembda had put his signature on the said bond in his presence.[10]

13.Cri.Appln.-1438-2022.odtThe witness Dilip Bhandarge further states about the presence ofthe two other witnesses namely Kishor Bharuka and SunilAgrawal at the time of the execution of the said document beforethe notary public Mr. Dilip Bhandarge. Mr. Sikchi has furtherrelied upon the notary register at page 117 to show the entriesof the register taken by the notary public which shows thepresence of Mahendra Agrawal and the complainant JawaharDembda. 19.The learned Counsel Mr. Sikchi for Respondent No.2 hasvehemently argued that the Applicants being the father and thewife of the deceased Mahendra, was having knowledge right fromthe inception about the investment of Rs. 25 Lacs initially in theyear 2019 by the complainant. The complainant was induced infact not only by Mahendra Agrawal, but also by Girdhari (father)and Prajakta (wife of the deceased Mahendra) to invest in thebusiness, for purchasing of the land and doing the business ofreal estate. The initial reluctance was persuaded by Girdhari,Prajakta and Mahendra together and as such they cannot feignignorance about the transaction. Thus Mr. Sikchi has prayed fordismissal and rejecting the application for quashing. According tohis submission the prima facie material is sufficient enough toestablish a cognizable offence committed by the Applicants. Theevidence collected by the prosecution also supports theallegations and as such no case is made out for interference ofthis Hon’ble Court in exercise of powers under Section 482Cr.P.C. [11]

13.Cri.Appln.-1438-2022.odt20.Mr. Sikchi learned Counsel for Respondent No.2 has reliedupon the judgment of the Hon’ble Supreme Court delivered inKathyayini Vs. Sidharth P.S. Reddy and Ors., reported in 2025INSC 818, wherein the Supreme Court has laid down inParagraph Nos. 19 and 20 as under :“19.We now come to the issue of bar against prosecution during the pendency ofa civil suit. We hereby hold that no such bar exists against prosecution if the of-fences punishable under criminal law are made out against the parties to the civilsuit. Learned senior counsel Dr. Menaka Guruswamy has rightly placed the relevantjudicial precedents to support the above submission. In the case of K. Jagadish V.Udaya Kumar G.S. and another3, this Court has reviewed its precedents which clarifythe position. The relevant paragraph from the above judgment is extracted below: “8. It is thus well settled that in certain cases the very same set of factsmay give rise to remedies in civil as well as in criminal proceedings andeven if a civil remedy is availed by a party, he is not precluded fromsetting in motion the proceedings in criminal law.” 20. In Pratibha Rani Vs. Suraj Kumar and another, this Court summed up the distinc-tion between the two remedies as under : “21. … There are a large number of cases where criminal law and civil law can runside by side. The two remedies are not mutually exclusive but clearly coextensive andessentially differ in their content and consequence. The object of the criminal law isto punish an offender who commits an offence against a person, property or theState for which the accused, on proof of the offence, is deprived of his liberty andin some cases even his life. This does not, however, affect the civil remedies at allfor suing the wrongdoer in cases like arson, accidents, etc. It is an anathema to sup-pose that when a civil remedy is available, a criminal prosecution is completelybarred. The two types of actions are quite different in content, scope and import. Itis not at all intelligible to us to take the stand that if the husband dishonestly misap-propriates the stridhan property of his wife, though kept in his custody, that wouldbar prosecution under Section 406 IPC or render the ingredients of Section 405 IPCnugatory or abortive. To say that because the stridhan of a married woman is keptin the custody of her husband, no action against him can be taken as no offence iscommitted is to override and distort the real intent of the law.” 21.Learned Counsel Mr. Sikchi has further relied upon therecent judgment of the Supreme Court in Punit Beriwala Vs. TheState of NCT of Delhi and Ors., 2025 INSC 582, wherein it is heldin paragraph no.28 which reads as under : [12]

13.Cri.Appln.-1438-2022.odt“28.It is trite law that mere institution of civil proceedings is not a ground forquashing the FIR or to hold that the dispute is merely a civil dispute. This Court invarious judgments, has held that simply because there is a remedy provided forbreach of contract, that does not by itself clothe the Court to conclude that civilremedy is the only remedy, and 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 becausethe offence was committed during a commercial transaction, it would not besufficient to hold that the complaint did not warrant a further investigation and ifnecessary, a trial.”.Learned Counsel Mr. Sikchi has further relied upon theparagraph no.32 of the judgment in Punit Beriwala (supra),which reads as under :“32.This Court is of the view that the learned Single Judge misdirected himselfby concluding that the only allegation against Vikramjit Singh and Maheep Singh(Respondent Nos. 2 and 3) is that they were witnesses to the Receipt-cum-Agreementto Sell dated 12th April 2004, whereas, the gravamen of the allegation was thatVikramjit Singh and Maheep Singh (Respondent Nos. 2 and 3) were equally guilty ofmisrepresentation as, despite their knowledge to the contrary (as they were all closelyrelated as well as members of the said HUF and Vikramjit Singh was actual Karta),they allowed Bhai Manjit Singh who was not competent to execute the Receipt-cum-Agreement to Sell on behalf of Bhai Manjit Singh HUF to represent himself as theKarta and execute the same. Consequently, the underlying act of misrepresentation byBhai Manjit Singh, Vikramjit Singh and Maheep Singh (all three) is the offence bywhich the Appellant is aggrieved, and not the mere act of signing the receipt aswitnesses. However, the learned Single Judge has neither dealt with nor examined thesaid aspect in the impugned judgment.”.Learned Counsel Mr. Sikchi has lastly relied upon theparagraph no.33.15 quoted from the judgment reported inNeeharika Infrastructure Vs. State of Maharashtra, (2021) 19SCC 401 which states that the Court is not required to consideron merits whether or not the merits of the allegations make outa cognizable offence and has to only consider whether theallegations in the FIR disclose commission of a cognizable offenceor not.22.It is therefore strenuously argued by the learned Counsel[13]

13.Cri.Appln.-1438-2022.odtfor Respondent No.2 that the precedents noted by the Hon’bleSupreme Court in its earlier judgments make it crystal clear thatthe mere pendency of a civil proceeding on the same subjectmatter involving the same parties is no justification to quash thecriminal proceeding, if a prima facie case exists against theaccused. It is his further submission that a prima facie caseexists against Respondents in the present case and as such theApplicants should be put to a criminal trial to ensure justice tothe complainant. 23.The learned APP Mr. Wakale appearing for the State hasalso supported the arguments of Mr. Sikchi for the Complainantand has specifically stated that no case is made out forinterference as the prosecution has found sufficient evidence soas to file charge-sheet against the present Applicants forcheating and criminal breach of trust. He, therefore, prays forrejecting the present application.24.We have heard Mr. Vishal Bagdiya for the Applicants, Mr.Aditya Sikchi for Respondent No.2 and Mr. Wakale, APP for theState.25.After having considered the submissions made by theparties, it is found that the complainant has allegedly enteredinto an oral agreement with the deceased person Mahendra,Prajakta, Girdharilal in the year 2019 for investing into the realestate. It has also emerged from the record that the agreement[14]

13.Cri.Appln.-1438-2022.odtdated 08.01.2020 was entered into between the complainant andthe deceased Mahendra. The agreement further states about thecheque of Rs. 50 Lacs signed by Mr. Mahendra (deceased),handed over as a security deposit to the complainant. Counselfor the Applicants has also produced on record a copy of the suitfor recovery filed by the complainant for the recovery of theamount of Rs. 50 Lacs paid by the complainant which isregistered as Special Civil Suit No.324/2023 pending before theCivil Judge Senior Division, Jalna which is also admitted by therespondent/complainant.26.It is also pertinent to note that Mr. Mahendra Agrawal hadalso handed over a cheque of Rs.50 Lacs to the complainant as asecurity, in case the amount is not paid back or the sale deed isnot executed for the land intended to be purchased. Thus theintention to cheat is missing at the inception on the part of Mr.Mahendra Agrawal. The Applicants as it is, were never signatoriesto such agreement and thus the mens rea of cheating thecomplainant, also cannot be attributed to the present Applicants.27.Insofar as the allegation of criminal breach of trust isconcerned, it is almost a settled law that every act of breach oftrust may not result in a penal offence of criminal breach of trust,unless there is evidence of manipulating act of fraudulentmisappropriation. An act of breach of trust involves a civil wrongin respect of which the person may seek his remedy for damagesin civil Courts, but any breach of trust with the mens rea givesrise to a criminal prosecution as well.[15]

13.Cri.Appln.-1438-2022.odt28.In the present case, the mens rea for criminal breach oftrust on the part of the Applicants is missing inasmuch as thereis no written agreement between the Applicants and thecomplainant. All that the complainant relies upon is anagreement dated 08.01.2020 entered into between thecomplainant and the deceased Mahendra Agrawal. The mens reaon the part of the Applicants is therefore, absent and as such theoffence of criminal breach of trust punishable under Section 406of Indian Penal Code, is thus not made out as against the presentApplicants.29.The perusal of the charge-sheet filed by the prosecution,only contains a statement of the complainant, witnesses andnotary and the other relevant documents pertaining to thetransaction between the complainant and the deceasedMahendra Agrawal. Perusal of the agreement dated 08.01.2020merely shows that there was an earlier agreement between thecomplainant and Mahendra (deceased), Girdharilal, Prajakta.However the agreement does not bear the signatures of theApplicants as a party to such agreement or as witness orconsentors to the said agreement dated 08.01.2020, wherein anadditional amount of Rs.25 Lacs was handed over by theApplicants to the deceased Mahendra. There is no allegations inthe FIR that the Applicants had a dishonest or fraudulentintention at the time of receiving the initial amount of Rs.25 Lacsfrom the complainant or the additional amount of Rs.25 Lacs asstated in the agreement dated 08.01.2020. [16]

13.Cri.Appln.-1438-2022.odt30.The Hon’ble Supreme Court in the judgment reported inHari Prasad Chamaria Vs. Bishun Kumar Surekha, (1973) 2 SCC823 has observed as under :“4.We have heard Mr. Maheshwari on behalf fo the appellant and are of theopinion that no case has been made out against the respondents under Section 420of the Penal Code, 1860. For the purpose of the present appeal, we would assumethat the various allegations of fact which have been made in the complaint by theappellant are correct. Even after making that allowance, we find that the complaintdoes not disclose the commission of any offence on the part of the respondentsunder Section 420 of the Penal Code, 1860. There is nothing in the complaint toshow that the respondent had dishonest or fraudulent intention at the time theappellant parted with Rs. 35,000/-. There is also nothing to indicate that therespondents induced the appellant to pay them Rs.35,000/- by deceiving him. It isfurther not the case of the appellant that a representation was made by therespondents to him at or before the time he paid the money to them and that at thetime the representation was made, the respondents knew the same to be false. Thefact that the respondents subsequently did not abide by their commitment that theywould show the appellant to be the proprietor of Drang Transport Corporation andwould also render accounts to him in the month of December might create civilliability of them, but this fact would not be sufficient to fasten criminal liability onthe respondents for the offence of cheating.”.From the perusal of the above judgment, it would be clearthat the case of cheating and dishonest intention starts with thevery inception of the transaction. But in the case of criminalbreach of trust, a person receiving the movable property, thoughreceives initially as legal, however illegally retains it or convertsit to his own use against the terms of the contract.31.The law pertaining to the applications under Section 482 ofCr.P.C. for quashing of FIR, is laid down in the seven exceptionscarved out by the Hon’ble Supreme Court in the landmarkjudgment reported in the case of State of Haryana Vs. BhajanLal, AIR 1992 SC 604, wherein the Hon’ble Supreme Court haslaid down as under :[17]

13.Cri.Appln.-1438-2022.odt“102. In the backdrop of the interpretation of the various relevant provisions of theCode under Chapter XIV and of the principles of law enunciated by this Court in aseries of decisions relating to the exercise of the extraordinary power under Article226 or the inherent powers under Section 482 of the Code which we have extractedand reproduced above, we give the following categories of cases by way ofillustration wherein such power could be exercised either to prevent abuse of theprocess of any Court or otherwise court or otherwise to secure the ends of justice,though it may not be possible to lay down any precise, clearly defined andsufficiently channelised and inflexible guidelines or rigid formulae and to give anexhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the First Information Report or the complaint,even if they are taken at their face value and accepted in their entirety do notprima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any,accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi- gation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.(5) where the allegations made in the FIR or complaint are so absurd and inherentlyimprobable on the basis of which no prudent person can ever reach a just conclusionthat there is sufficient ground for proceeding against the accused.(6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institu- tion and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and/or wherethe proceeding is maliciously instituted with an ulterior motive for wreakingvengeance on the accused and with a view to spite him due to private and personalgrudge.”32.After going through the entire record including the FirstInformation Report and the charge-sheet filed by the[18]

13.Cri.Appln.-1438-2022.odtprosecution, we are of the considered opinion that the presentcase clearly falls under clauses first and third exception carvedout by the Hon’ble Apex Court in paragraph no.102 of the ApexCourt judgment of Bhajan Lal cited supra. The Hon’ble SupremeCourt in its judgment in the case of State of Karnataka Vs. L.Muniswamy and Ors. reported in (1977) 2 SCC 699, was pleasedto hold that the High Courts are entitled to quash a proceeding ifit comes to the conclusion that allowing the proceeding tocontinue would be an abuse of the process of the Court or thatthe ends of justice would require that the proceeding ought to bequashed. The saving of the High Court's inherent powers underSection 482, both in civil and criminal matters, is designed toachieve a salutary public purpose which is that a courtproceeding ought not to be permitted to degenerate into weaponof harassment or persecution. In a criminal case, the veiledobject behind a lame prosecution, the very nature of the materialon which the structure of the prosecution rests and the likewould justify the High Court in quashing the proceeding in theinterest of justice.33.The facts of the present case clearly shows that thedispute which is mainly civil in nature is tried to be turned into acriminal prosecution only with the sole intention of recovering theamount which may not be permitted in view of the judgment ofthe Hon’ble Supreme Court in Vijayasarathy’s case cited supra.In the present case, there is no such allegation that theApplicants or the deceased Mahendra had an intention ofcheating or dishonest intention at the very inception of the[19]

13.Cri.Appln.-1438-2022.odttransaction. As could be reflected from the FIR, the entireallegations are that the intention of all the partners were to enterinto some land transactions and to earn profits. Thus thedishonest intention from the very inception, is missing. Neitherthere is any allegation about dishonest misappropriation ordisposal of that property. The only allegation is that thecomplainant is cheated and that the amount is not paid back tothe complainant. The Hon’ble Supreme Court in the judgmentreported in 2006 (6) SCC 736, M/S Indian Oil Corporation vsM/S Nepc India Ltd. and Ors., was pleased to observe asfollows :“13.Any effort to settle civil disputes and claims, which do not involve anycriminal offence, by applying pressure though criminal prosecution should be depre-cated and discouraged…..”34.The complainant has also failed to deposit the cheque towithdraw the amount of Rs. 50 Lacs as the deceased Mahendrahas given the said cheque by way of security in case of non-payment of the amount. The complainant has filed a civil suiteven though subsequently for recovery of the amount. In ourconsidered view, the ingredients required to constitute a criminaloffence of cheating and criminal breach of trust, are not madeout from a bare reading of the complaint or the charge-sheet,much less against the Applicants.35.At this stage, we are only concerned with the questionwhether the averments in the complaint/FIR and the charge-sheet taken at their face value make out the ingredients of[20]

13.Cri.Appln.-1438-2022.odtcriminal offence. In the present case, looking at the allegations inthe complaint on the face of it, we find that no allegations aremade attracting the ingredients of Section 405 IPC. Likewise,moreover, there are no allegations as to the dishonest intentionof the appellants at the inception in order to have wrongful gainto themselves or causing wrongful loss to the complainant.Excepting the bald allegations that the appellants did not makepayment to the complainant. There is no iota of allegation as tothe dishonest intention in misappropriating the property. Even ifall the allegations in the complaint taken at the face value aretrue, in our view, the basic essential ingredients of dishonestmisappropriation and cheating are missing. The criminalproceedings are not a shortcut for other remedies.36.The judgment relied upon by Mr. Sikchi for RespondentNo.2 i.e. Kathyayini Vs. Sidharth P.S. Reddy and Ors. (supra),lays down a proposition that in certain cases the very same setof facts may give rise to remedies in civil as well as criminalproceedings and even if a civil remedy is availed by a party, he isnot precluded from setting in motion the proceeding in criminallaw. There is no doubt that the very same fact may give rise toremedies in civil as well as criminal proceedings, however in thepresent case, it is seen that the dishonest intention at the veryinception is missing and equally missing, is the allegation ofcriminal misappropriation of the entrusted property. Hence thejudgment relied upon by Mr. Sikchi, the learned Counsel forRespondent No.2, is not applicable in the facts of the presentcase.[21]

13.Cri.Appln.-1438-2022.odt37.The another judgment relied upon by Mr. Sikchi, thelearned learned Counsel for Respondent No.2 i.e. Punit BeriwalaVs. The State of NCT of Delhi and Ors. (supra) is again on thesame lines that civil proceeding is not a ground for quashing ofthe FIR or to hold that the dispute is merely a civil dispute. Theother paragraphs relied upon by Respondent No.2, is paragraphno.32 of the said judgment, wherein the Court has recorded afinding of the fact that the Respondents/accused persons whowere witnesses to the receipt-cum-agreement to sell and wereequally guilty of misrepresentation..However in the present case, the agreement dated08.01.2020 does not even bear the signatures of the Applicantsas either witnesses, or consentors to the agreement which wasexecuted only between the deceased Mahendra and thecomplainant. The judgment relied upon by Respondent No.2 i.e.Punit Beriwala cited supra, is therefore distinguishable on thefacts of the present case. The filing of the civil suit is only anadditional reason apart from the basic allegation of intention ofcheating from inception and dishonest intention ofmisappropriation which is missing in the complaint. 38.The Hon’ble Supreme Court in the judgment of Delhi RaceClub (1940) Limited (supra) was pleased to hold as under:“43.There is a distinction between criminal breach of trust and cheating. Forcheating, criminal intention is necessary at the time of making a false or misleadingrepresentation i.e. since inception. In criminal breach of trust, mere proof ofentrustment is sufficient. Thus, in case of criminal breach of trust, the offender islawfully entrusted with the property, and he dishonestly misappropriated the same.Whereas, in case of cheating, the offender fraudulently or dishonestly induces aperson by deceiving him to deliver any property. In such a situation, both the[22]

13.Cri.Appln.-1438-2022.odtoffences cannot co-exist simultaneously.”“55.It is high time that the police officers across the country are imparted propertraining in law so as to understand the fine distinction between the offence ofcheating viz-a-viz criminal breach of trust. Both offences are independent and distinct.The two offences cannot coexist simultaneously in the same set of facts. They areantithetical to each other. The two provisions of the IPC (now BNS, 2023) are nottwins that they cannot survive without each other..”.The Hon’ble Supreme Court in the judgment in the case ofRikhab Birani Vs. State of Uttar Pradesh reported in 2025 INSC512 was also pleased to impose a cost of Rs.50,000/- upon theState of Uttar Pradesh, thereby observing as under :“We are also constrained to impose costs of Rs.50,000/- on the State of Pradesh asin spite of repeated judgments/orders of this Court, we are being flooded with casesof civil wrongs being made the subject matter of criminal proceedings by filingcharge-sheets etc. where a civil grievance was attempted to be prosecuted as acriminal case, thereby causing harassment to the litigants. Since no case of criminalbreach of trust or dishonest intention of inducement is made out and the essentialingredients of sections 405/420 IPC are missing, the prosecution of the appellantsunder section 406/120B IPC, is liable to be quashed and set aside.” 39.The continuation of the criminal proceeding would thus,constitute abuse of process of the Court. The grievance of thecomplainant which is essentially of a civil nature has been givena cloak of a criminal offence. In our view, therefore, the FirstInformation Report and the consequent charge-sheet is thus,liable to be quashed and set aside. Hence, the following order :ORDER(i)The Criminal Application is allowed. (ii)The First Information Report bearing Crime No.051/2022registered at S.B. Police Station, Jalna for the offencespunishable under Sections 420, 406 and 34 of the Indian PenalCode, is hereby quashed and set aside.[23]

13.Cri.Appln.-1438-2022.odt(iii)The charge-sheet filed by the Respondent No.1 and thefurther proceeding bearing RCC No.1058/2022 pending beforethe Judicial Magistrate First Class, Jalna, are also quashed andset aside.(iv)There shall be no order as to cost. MEHROZ K. PATHAN SANDIPKUMAR C. MORE JUDGEJUDGENajeeb..[24]