Gujarat High Court
Heenaben - D/O Ghanshyambhai Thakkar vs State Of Gujarat on 7 August, 2025
NEUTRAL CITATION
R/SCR.A/16073/2024 ORDER DATED: 07/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 16073 of 2024
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HEENABEN - D/O GHANSHYAMBHAI THAKKAR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR KK TRIVEDI(934) for the Applicant(s) No. 1
DARSHAN M VARANDANI(7357) for the Respondent(s) No. 1
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 07/08/2025
ORAL ORDER
1) By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the applicants have prayed to quash and set aside the FIR being C.R.No.11196041240421 of 2024 registered with Akota Police Station, Vadodara, for the offence under Sections 406 and 120(b) of Indian Penal Code, 1860 and other proceedings arising therefrom qua them.
2) The accused No.1 - Atonu Datta and present petitioner - Heen Thakkar, in collusion with each other, hatched a conspiracy with the intent to commit financial embezzlement and cheating. During his tenure at the complainant company, Atonu Datta used the name of the complainant company's unit - Alceon, to establish two companies under the names "Alceon Meditech" and "Design Logic." The accused misled the customers of the complainant company and diverted payments that were due to the complainant from client companies Page 1 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025 NEUTRAL CITATION R/SCR.A/16073/2024 ORDER DATED: 07/08/2025 undefined into the bank accounts of his own companies and other personal accounts, totaling an amount of ₹1,33,69,750.82/-. Furthermore, by misusing the official email ID and laptop provided by the complainant company to the petitioner, the accused carried out a technically sophisticated fraud against the complainant Company. In this regard, an FIR came to be filed against Atonu Datta and the present petitioner.
3) Learned counsel for the petitioner has submitted that no charge of cheating is levelled against the petitioner and no material is collected. The petitioner and other 16 were the employees of the complainant company. The petitioner had tendered her resignation which was accepted by HR Manager of the company. No property was entrusted to the petitioner and had not breached any trust. Therefore, she has not committed any offence as alleged against her. The complaint is cleverly drafted only with a view to cause harassment to the petitioner. The petitioner has no past antecedent. He has also submitted that, this is a simple case of breach of service contract and for that, civil action is required to be initiated. Therefore, he has submitted that, in case of breach of contract, no prosecution is permissible under criminal law as the dispute is civil in nature. Every breach of contract would not give rise to the offence of cheating. Further, there is no material to prove the allegation of conspiracy. Therefore, present FIR is filed, giving a cloak of criminality.
4) Over and above the above submissions and to buttress his arguments, learned counsel for the petitioner has also relied on (1) Hari Prasad Chamaria Vs. Bishun Kumar Surekha & Ors, reported in 1973 (2) SCC 823, (2) Vijay Kumar Ghai vs. State of W.B., reported in 2022 (7) SCC 124, (3) Harmanpreet Singh Ahluwalia Vs. State of Punjab, reported in 2009 (7) SCC 712, (4) Rajiv Thapar Vs. Madan Lal Page 2 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025 NEUTRAL CITATION R/SCR.A/16073/2024 ORDER DATED: 07/08/2025 undefined Kappor, reported in 2013 (3) SCC 330, (5) Arvindbhai Maganlal Master Vs. State of Gujarat & 1, reported in 2014 SCC Online Guj. 13301, (6) Kairunaben Jamaluddin Kadri Vs. State of Gujarat & Ors, reported in 2017 (4) GLR 3553, (7) Naresh Kumar & Anr. Vs. State of Karnataka, reported in 2024 Online SC 268 (8) Vesa Holdings Pvt. Ltd. & Anr. Vs. State of Kerala, reported in 2015 (8) SCC 293 and (9) Sarabjit Kaur Vs. State of Punjab & Ors, reported in 2023 (5) SCC 360.
5) Per contra, learned APP for the State has opposed the present petition and contended that, the petitioner is named in the FIR. Now chargesheet is filed and sufficient material is collected. Statement of the witnesses have been recorded, which clearly suggests the involvement of the petitioner. This is not a case where without evidence and material, the petitioner has been falsely implicated in the offence. Therefore, present petition does not deserve any consideration.
6) Mr. D. M. Varandani, learned counsel for the complainant has adopted the arguments made by ld. APP and contended that, accused No.1 Atonu Datta used the name of the complainant company's unit - Alceon and established two companies under the names "Alceon Meditech" and "Design Logic." The accused No.1 and present petitioner misled the customers of the complainant company and diverted payments that were due to the complainant from client companies into the bank accounts of his own companies and other personal accounts, totaling an amount of Rs.1,33,69,750.82/-. Both the accused misused the official email ID and laptop provided by the complainant company to the petitioner and carried out a technically sophisticated fraud against the complainant Company. Not only that, the orders are also taken by creating impression among the customers companies of the complainant that both the companies of accused are the same and deceptively similar. Email was also created Page 3 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025 NEUTRAL CITATION R/SCR.A/16073/2024 ORDER DATED: 07/08/2025 undefined by the accused and audit was managed and from the email, several messages and emails are collected, which suggests the involvement of the petitioner in the said offence. Petitioner had offered her resignation as a part of pre-planned strategy and the same was accepted by HR Manager and then joined the company of accused No.1 and siphoned off the amount. Each and every mails of complainant company, were also sent to the accused No.1, so that such data can be kept in a loop and keep watch the business of the complainant company. Other 16-17 witnesses who were employees of the complainant company having control over the data, made to sit them overnight for 2 days at the instance of the petitioner and had stored all data of the complainant company for accused No.1's companies. Thereby, prima facie involvement of the petitioner is revealed and criminal breach of trust is attracted. After lodgment of the complaint and filing of the chargesheet, she had left the company of accused No.1. Now chargesheet is filed, then mini trial is not permissible. Therfore, this is not a simple case of breach of contract. The petitioner in collusion with accused No.1 committed offence of cheating and criminal breach of trust.
Hence, no case is made out to exercise extraordinary jurisdiction of this Court under Section 482 of the Cr.P.C and therefore, present petition deserves to be dismissed.
7) Having heard learned counsel for the parties and perusing the material placed on record, it appears that respondent No.2 is the complainant, who runs firm namely Eupraxia Center for Clinical Excellence and having 48.50 % partnership and his wife Shruti Prashant Kirkire having 49.50 % partnership in the said firm, whereas, accused No.1 Atonu Datta was partner of 1 %. Accused No.1 with an intent to defraud the company, forged documents to establish two new companies i.e. "Alceon Meditech" and "Design Logic" while he was performing his duty as a partner in the complainant company.
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The accused No.1 keeping the complainant firm in the dark, started to receive orders from the customers of the firm of the complainant and transferred the amount in the bank accounts of the two firms of accused No.1. In the said work, the petitioner misused the official email ID and laptop provided by the complainant company to her and thereby, both the accused carried out a technically sophisticated fraud against the complainant Company.
8) It further appears that, with an intent to siphon off the amount and to divert the customers of complainant firm, accused No.1 was under
planning and under his control, petitioner was working and by hatching conspiracy as a part of pre-planning, siphoned off the amount. In the laptop provided to the petitioner, statement of accounts of two firms were found. The account of the petitioner which was maintained with HDFC Bank is found and account and statements of Design Logic is also found and in the said company, accused No.1 has transferred the payment of respondent No.2 Company Rs.1,33,69,750/- and thereby, he has committed an offence of criminal breach of trust. Statement of accounts were found from the laptop of the petitioner. During investigation, pendrive and other material is also collected.
9) From the record, it further emerges that present petitioner was involved in the above conspiracy from the beginning and she was aware of this conspiracy from the beginning and in collusion with accused No.1, she conspired with the accused No.1 to commit embezzlement and fraud with the complainant. When the petitioner and accused No.1 were in the company of the complainant, their official e-mail was [email protected] and [email protected] and they maliciously informed the complainant's customers and other regulatory bodies about the newly created e-mail IDs [email protected] and Page 5 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025 NEUTRAL CITATION R/SCR.A/16073/2024 ORDER DATED: 07/08/2025 undefined [email protected] and maliciously informed those customers/regulatory bodies that a new company called ALCEON was going to be formed and all the purchase orders and work of Eupraxia Center for Clinical Excellence were transferred to that new company.
Such email IDs are deceptively similar and easily create impression among the customers and others that the company is the same and one. The petitioner and Atunu Dutta told all the employees working in the ALCEON Department of the complainant that they should resign from the complainant's company and informed the last date of employment is 28.02.2023. All these resignation emails were of the same format and the language of all those resignations was the same and the same were approved by accused No.1 Atunu Dutta without the permission of the complainant. Therefore, it is learnt that after 28.02.2023, the information of this newly formed company like details of the complainant's projects, details of their customers, information of their certificates issued by regulatory bodies, which the accused in this work obtained through criminal breach of trust, clearly shows the conspiracy to misuse it by the accused's new company to get illegal benefits.
10) It is evident from the client's e-mail dated 13.06.2022 that when the petitioner and accused No.1 were working with the complainant, in the e-mails they were discussing with the client, they maliciously started copying the e-mails of the accused's new company [email protected] and [email protected], so that going forward, the client would be informed that ALCEON Meditech Consultancy Company is the same company of Atonu Dutta, which was the complainant's company. Further, on 14.12.2022, Atanu Dutta wrote an e-mail to the petitioner stating, "I am thinking whether we can have the last external surveillance audit in March to coincide with our plans", which proves that the petitioner was playing a major role in Page 6 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025 NEUTRAL CITATION R/SCR.A/16073/2024 ORDER DATED: 07/08/2025 undefined the conspiracy along with the main accused in this case. It is also noted that, on 23.01.2023, accused No.1 wrote an e-mail to BSI Group which issues the most important certificate of quality management to the complainant. In that e-mail written by Atanu Dutta to that organization, petitioner's e-mail was found to be in CC and through that e-mail, the certificate which BSI used to issue to the complainant after auditing the complainant company, that certificate was obtained by accused No.1 and petitioner for their newly formed company. From this, it is clearly shown that petitioner was involved in a pre-planned conspiracy with the accused No.1 Atanu Dutta.
11) Thereafter, on 17.02.2023 and 06.03.2023, petitioner sent email to Kariyadi's customer Nebula Surgical to discuss the details of the work and she sent that email from the email of accused No.1's new company, but in CC of that email, Atunu Dutta's old Upexia email ID was included, so that the customer company felt that she was currently working in the same company with which she was working earlier. It is revealed from the email sent by accused No.1 to present petitioner dated 26.02.2023 that Atunu Dutta gave a message to petitioner that all 16 employees who were yet to copy/obtain the data from Euprexia Elsion Company were instructed to work till late and to work even during the holidays of Saturday and Sunday and were asked to copy the data mentioned in this email, which proves that the accused had a pre-planned conspiracy and petitioner was an important part in that conspiracy. The accused wrote the email together to obtain the complainant's information with malicious intent. Thus, both the accused helped each other and conspired to embezzle money of the complainant company. Further, they also kept the customers of the complainant's company in the dark and got a total of Rs. 1,33,69,750.82/- deposited in his 'Alceon Meditech Consulting And Design Logic' company's bank accounts and his other bank accounts to collect the payment from the complainant Page 7 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025 NEUTRAL CITATION R/SCR.A/16073/2024 ORDER DATED: 07/08/2025 undefined and misused the e-mail id and laptop provided by the complainant's company in collusion with present petitioner and committed fraud with the complainant's company and there is sufficient evidence against the accused. Hence, prima facie involvement of the petitioner is revealed and therefore, this is not a simple case where the petitioner had played role under the instruction of accused No.1 being an employee.
12) It is a clear-cut case of criminal breach of trust, considering the appointment, role and responsibilities of the petitioner. The petitioner was responsible for handling issues related to regulatory submissions and regularly interacted with customers to manage and resolve queries, coordinate with regulatory agencies, and train the designated members. She was entrusted with preparing clients' designs for regulatory submissions and had access to sensitive company data, as well as proprietary information. Instead of using this material for the benefit of the company, she in collusion with Accused No. 1, misused the data for unauthorized purposes. This clearly indicates a breach of trust and collusion with Accused No. 1.
13) It is settled position of law that the offence of cheating and criminal breach of trust cannot go together and each case is required to be considered on its own merit and based on the facts. The petitioner is facing charge of criminal conspiracy and therefore, it is appropriate to refer to Section 61 of BNS, which reads as under:-
"Sec. 61. Criminal Conspiracy :-
(2) Whoever is a party to a criminal conspiracy,
(a) to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Sanhita for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence;Page 8 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025
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(b) other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
14) Further, it is pertinent to note that, to establish criminal conspiracy charges under section 120 of the IPC, there must be an agreement, either expressed or implied. And for that, no proof of direct meeting or communication is needed. There must be active cooperation. In other words, joint evil intent is mandatory. When any act is done even though it is lawful but done by illegal means, it constitutes criminal conspiracy.
15) The first ingredient of criminal conspiracy is agreement between two or more persons. This agreement is the crux of the offence and can be explicit or implicit, written or oral. The second essential component is the intention to commit an illegal act or a legal act by illegal means. The intent should directly related to the outcome that the conspirators plan to achieve.
16) The essential ingredients of criminal conspiracy are: (i) An agreement between two or more persons; (ii) The agreement must be related to doing or causing to be done either (a) an illegal act and (b) an act that is not illegal in itself but is done by illegal means; (iii) The agreement may be expressed or implied or partly expressed and partly implied; (iv) As soon as the agreement is made, the conspiracy arises, and the offence is committed and
(v) the same offence is continued to be committed so long as the combination persists.
17) It is needless to say that so far as the allegation of conspiracy is concerned, it is very difficult to collect any direct evidence of conspiracy.
18) So far criminal breach of trust is concerned, it is also imperative to examine the ingredients of the said offence and whether the allegations made in the complaint, read on their face, attract those offences under the Penal Code.
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"Section 405 of IPC defines Criminal Breach of Trust which reads as under: -
"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
The essential ingredients of the offense of criminal breach of trust are:-
(1) The accused must be entrusted with the property or with dominion over it, (2) The person so entrusted must use that property, or; (3) The accused must dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation,
(a) of any direction of law prescribing the mode in which such trust is to be discharged, or;
(b) of any legal contract made touching the discharge of such trust.
24. "Entrustment" of property under Section 405 of the Indian Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, 'in any manner entrusted with property'. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of 'trust'. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.
19) Herein, the petitioner, being an employee of the company, was in a position of control over the company's data and orders. By virtue of this control, she was in a fiduciary relationship with the company. The data and other intangible assets entrusted to her fall within the definition of "property" under the law. In her fiduciary capacity, she was obligated to use this property solely for the benefit of the complainant firm. However, instead of fulfilling this duty, she in Page 10 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025 NEUTRAL CITATION R/SCR.A/16073/2024 ORDER DATED: 07/08/2025 undefined collusion with Accused No. 1, misused her position and dominion over the property, resulting in the misappropriation of company funds. Therefore, prima facie, it appears that the petitioner has committed the offence of criminal breach of trust.
20) The contention of the learned counsel for the petitioner is that this is a civil dispute and does not constitute a case of criminal breach of trust. However, it is well settled law that there is a distinction between a civil wrong and a criminal offence. While certain actions may give rise to civil liability, they can also attract criminal liability if the requisite mens rea is present. In the present case, it is clearly a case of criminal breach of trust. Although there may be elements of a civil wrong, the presence of mens rea gives rise to criminal liability as well. In this regard, it is refer to the decision of the Hon'ble Supreme Court in case of Sudhir Shantilal Mehta Vs. CBI, reported in 2009 (8) SCC 1, wherein, it is held as under:-
"The criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or has otherwise dominion thereover. Such an act must not only be done dishonestly but also in violation of any direction of law or any contract express or implied relating to carrying out the trust..."
21) Here in the case on hand, the petitioner rather to show her liability, responsibility and loyalty towards the complainant company, in connivance with accused No.1 provided the crucial data and facilitated accused No.1 in carrying out a technically sophisticated fraud against the complainant Company. Therefore, involvement of the petitioner is clearly born out from such facts.
22) So far as the other contention that for civil dispute, criminal proceedings is not maintainable, is not acceptable. In this regard, reference is required to be made on the decision of Kamal Shivaji Page 11 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025 NEUTRAL CITATION R/SCR.A/16073/2024 ORDER DATED: 07/08/2025 undefined Pokarnekar Vs. State of Maharashtra, reported in (2019) 14 SCC
350. Considering the same, Prima facie criminal breach of trust is made out and criminal complaint cannot be quashed on the ground of allegation made therein appears to be of civil nature. Therefore, the authorities relied on by learned counsel for the petitioners would not avail any assistance.
23) In light of the aforesaid provisions of law and perusing the record, it reveals that the case on hand is only a case of simple breach of contract or promise, but more than that, the accused persons with malafide intention, hatched a conspiracy with an intent to commit financial embezzlement and cheating and during the tenure at the complainant company, accused No.1 used the name of the complainant company's unit - Alcon and established two companies under the names "Alceon Meditech" and "Design Logic." Thereafter, accused misled the customers of the complainant company and diverted payments that were due to the complainant from client companies into the bank accounts of his own companies and other personal accounts, totaling an amount of Rs.1,33,69,750.82/-. Furthermore, by misusing the official email ID and laptop provided by the complainant company to the petitioner, the petitioner carried out a technically sophisticated fraud against the complainant Company. Therefore, this is not a case of simple breach of trust, promise or agreement of contract. Here is a clear cut case of cheating. It is needless to say at this stage that, court should not hold mini trial, but prima facie involvement of the accused is found and complaint is not filed with malafide intention or with a view to tarnish the image of the petitioner, then question does not arise to invoke the power under Section 482 of the Cr.P.C.
24) Further, criminal proceeding would have to proceed entirely based on the allegations made in a complaint or the evidence collected during Page 12 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025 NEUTRAL CITATION R/SCR.A/16073/2024 ORDER DATED: 07/08/2025 undefined the investigation. It is not justified to embark inquiry or to hold mini trial qua genuineness or credibility of the material collected during the investigation and Court cannot go into correctness or otherwise of the material collected by the prosecution. In this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of Manik B. vs. Kadapala Sreyes Reddy & Ors. reported in 2023 Live Law 642 (3 Judges' Bench).
25) In a decision of Priti Sharaf Vs. State of NCT of Delhi, reported in AIR 2021 (SC) 1531, remedy is provided for breach of contract and considering the fact that the alleged transaction is civil in nature is not a ground to quash the proceedings under Sections 406 and 420 of Indian Penal Code, 1860. The Hon'ble Supreme Court in case of Iqbal alias Bala and Others vs. State of Uttar Pradesh and Others reported in (2023)8 SCC 734 has held that after filing of quashing petition, if the investigation is completed and charge-sheet is filed against one Petitioner in the meantime, then the proper remedy for accused in such case would be to prefer discharge application.
26) It is also worthwhile to refer to the decision of Hon'ble Supreme Court in the case of Supriya Jain vs. State of Haryana reported in 2023 LiveLaw (SC) 494. Further, in the case of Ramveer Upadhyay & Anr. vs. State of U.P. & Anr. reported in 2022 OnLine SC 484, Central Bureau of Investigation Vs. Aryan Singh etc., reported in 2023 SCC Online Sc 379 and Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra reported in 2021 SCC OnLine SC 315, it is observed and held as under:
"Even though, the inherent power of the High Court under Section 482 of the CrPC, to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the CrPC is not be exercised for the asking."Page 13 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025
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27) Whatever contentions raised by the applicants are defences of the petitioner, which cannot be looked into at this stage in exercise of power under Section 482 of the CrPC and this Court should not hold mini-trial while exercising inherent jurisdiction under Section 482 of the Cr.P.C. Even, present case does not satisfy any of the parameters laid down by the Hon'ble Supreme Court in the case of State of Haryana vs. Bhajan Lal reported in (1992) Supp (1) SCC 335 warranting the exercise of jurisdiction under Section 482 of the CrPC vis-à-vis the quashing of impugned FIR. Further, the Court will not be justified in embarking upon any enquiry as to the reliability of genuineness / otherwise of the allegations made in the complaint and also that, the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and caprice..
28) In wake of aforesaid discussion, present petition fails and same is hereby dismissed. However, it is needless to say that, the observations made in the order are tentative in nature.
(HASMUKH D. SUTHAR, J.) SUCHIT Page 14 of 14 Uploaded by SUCHITKUMAR PATEL(HC01083) on Thu Aug 07 2025 Downloaded on : Thu Aug 07 22:04:58 IST 2025