Gujarat High Court
Hasmukhbhai Arjanbhai Pandor vs State Of Gujarat on 27 March, 2026
NEUTRAL CITATION
R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 34460 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
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HASMUKHBHAI ARJANBHAI PANDOR
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS AMRITA AJMERA FOR MR DAIFRAZ HAVEWALLA(3982) for the
Applicant(s) No. 1
MR DIPAK H SINDHI(5710) for the Respondent(s) No. 2
MS VRUNDA SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 27/03/2026
JUDGMENT
1 The present application is filed for quashment of the FIR being I-C.R. No.13 of 2016 dated 06.02.2016 registered with Vijapur Police Station, District Mehsana, for the offences punishable under Sections 406 and 420 of the Indian Penal Code, wherein the period of the alleged offence is stated to be from the year 2012 to 23.08.2015.
Page 1 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined 2 As per the allegations made in the FIR, the present applicant is the sole accused. It is alleged that the complainant had supplied hybrid seeds, cotton seeds, and pesticides to the applicant for the purpose of cultivating cotton crops through various agriculturists. As per the understanding between the parties, upon providing such facilities, the agriculturists would supply their produce to the applicant, who would sell the same in the open market. After deducting the commission of the complainant, the remaining amount was to be paid to the concerned agriculturists, and the complainant had also agreed to pay 10% commission to the present applicant. It is further alleged that, after procuring the crops, the present applicant sold the same in the open market without routing the transaction through the complainant, which led to the lodging of the present FIR for the offences punishable under Sections 406 and 420 of the Indian Penal Code, which is under challenge before this Court.
3 Heard the learned advocate Ms.Amrita Ajmera for the applicant, learned advocate Mr. Dipak Sindhi for respondent No.2 and learned APP Ms.Vrunda Shah for the respondent-State.
4 Learned advocate Ms. Amrita Ajmera submits that Page 2 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined the complainant had duped as many as 71 agriculturists from whom cotton crops were procured, and that the payment for the same was not made. It is submitted that when the present applicant, along with the said agriculturists, approached the complainant for recovery of the amount, the impugned FIR came to be lodged with a view to restrain the applicant from initiating legal proceedings. It is further submitted by the learned advocate Ms. Ajmera that the present applicant had also attempted to lodge a police complaint but was unsuccessful, and therefore a private complaint came to be filed. Against the said complaint, the present complainant had approached this Court by way of Criminal Misc. Application No.8115 of 2018, which came to be dismissed by this Court, holding that a full-fledged trial is required and that powers under Section 482 of the Code of Criminal Procedure cannot be exercised at that stage. It is also submitted by the learned advocate Ms. Ajmera that the complainant has attempted to project the case by producing certain receipts to show that, except for an amount of Rs.60,000/-, the remaining amount was borrowed by the present applicant however, the signatures appearing on the said receipts are alleged to be forged. It is further submitted by the learned advocate Ms. Ajmera that the criminal case instituted Page 3 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined by the present applicant is still pending before the learned trial Court. In the aforesaid circumstances, it is contended that the impugned FIR is nothing but an afterthought and a counterblast to the complaint filed by the present applicant and, therefore, the same deserves to be quashed and set aside.
5 Per contra, learned advocate Mr. Dipak Sindhi appearing for respondent No.2 submits that the complainant had issued a notice in the month of August 2015 calling upon the present applicant to pay an amount of Rs.5,03,000/-, which was allegedly taken by the applicant under the guise of facilitating cultivation of cotton crops through various agriculturists, with an assurance that the produce would be sold to the complainant. It is submitted that by the learned advocate Mr. Sindhi that despite receipt of the said notice, the present applicant failed to make the payment and instead issued a counter- notice calling upon the complainant to pay the amounts due to 71 agriculturists. It is further submitted by the learned advocate Mr. Sindhi that the complaint filed by the present applicant before the criminal Court came to be instituted after a period of two years from the date of the present FIR, and therefore, the same cannot be said to be a counterblast to the present FIR. It is also submitted Page 4 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined that this Court, in the quashing petition filed by the present complainant against the said criminal complaint, has already observed that the matter requires a full-fledged trial. In view of the similarity of allegations, this Court ought not to exercise its inherent jurisdiction under Section 482 of the Code of Criminal Procedure in the present case. It is further submitted by the learned advocate Mr. Sindhi that the list of 71 agriculturists produced by the applicant is itself forged, and therefore, the allegations made in the impugned FIR require proper investigation. In the aforesaid background, it is prayed that the present application be dismissed.
6 Learned APP Ms.Vrunda Shah has opposed this application.
7 Considering the averments made in the FIR as well as the submissions advanced by the learned advocates for the respective parties, it emerges from the record that the allegation in the impugned FIR against the present applicant is to the effect that the applicant had taken an amount of Rs.5,03,000/-, out of which Rs.60,000/- was towards hybrid seeds, under the assurance that the same would be supplied to various agriculturists and that the agriculturists would sell their produce through the applicant. It is Page 5 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined further alleged that, on different dates, additional amounts were taken by the applicant, for which certain vouchers are stated to have been signed. It appears that upon failure to repay the said amount as well as failure to route the sale of the crops as agreed, the impugned FIR came to be lodged. On perusal of the vouchers alleged to have been signed by the applicant, it is noticed that they refer to the amount as "advance/prepayment" (ઉપાડ). Though the applicant disputes the said vouchers, this Court, at this stage, would not enter into disputed questions of fact. However, even if the vouchers are assumed to be genuine, the allegations in the FIR prima facie indicate that the dispute between the parties is essentially of a civil nature relating to recovery of amount.
7.1 It emerges that the amount allegedly borrowed by the present applicant has not been repaid and, instead of initiating appropriate recovery proceedings, the present FIR has been lodged. So far as the allegations of forgery with regard to the signatures in the list of 71 agriculturists are concerned, this Court has already directed the same to be examined by the learned trial Court and, therefore, at this stage, it would be inappropriate to adjudicate upon the said aspect.
Page 6 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined 7.2 At this stage, reference of sections 406 and 420 of the IPC is required to be made:
"406:Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
420: Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
8 To attract the provisions of Section 406 of the IPC, the ingredients of "criminal breach of trust" as defined under Section 405 are required to be satisfied. The essential ingredients of the said offence are: (i) entrustment of property or dominion over it to the accused; and (ii) dishonest misappropriation or conversion of such property to his own use, or disposal thereof in violation of any legal contract or Page 7 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined trust.
9 Admittedly, the present petitioner was neither entrusted with the property nor has he dishonestly misappropriated or converted the same for his own use. To attract the provisions of Section 420, the offence of cheating as defined under Section 415 is required to be considered.
"415 The ingredients of the cheating as defined under section 415 is- (1) deception of any person (2) (a) fraudulently or dishonestly inducing that person; or
(i) to deliver any property to any person or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which he would not do or omit, if he was not so deceived which act or omission causes or likely to cause damage or harm to that person in body, mind, reputation or property.
10 Upon reconsideration of the allegations made against the present applicant, none of the ingredients required under Section 415, as discussed hereinabove, are satisfied. At this stage, reference is required to be made to the decision of the Apex Court in Delhi Race Club (1940) Limited and Others v. State of Uttar Pradesh and Another, reported in 2024 (10) SCC 690, wherein it has been Page 8 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined held that offences under Sections 406 and 420 cannot co-exist simultaneously. The relevant observations read as under:
"35. This Court in its decision in S.W. Palanitkar & Ors. v. State of Bihar & Anr. reported in (2002) 1 SCC 241 expounded the difference in the ingredients required for constituting an of offence of criminal breach of trust (Section 406 IPC) viz-a-viz the offence of cheating (Section 420). The relevant observations read as under: -
"9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.
10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
36. What can be discerned from the above is that Page 9 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined the offences of criminal breach of trust (Section 406 IPC) and cheating (Section 420 IPC) have specific ingredients.
In order to constitute a criminal breach of trust (Section 406 IPC): -
1) There must be entrustment with person for property or dominion over the property, and
2) The person entrusted: -
a) dishonestly misappropriated or converted property to his own use, or
b) dishonestly used or disposed of the property or willfully suffers any other person so to do in violation of:
i. any direction of law prescribing the method in which the trust is discharged; or ii. legal contract touching the discharge of trust (see:
S.W.P. Palanitkar (supra).
Similarly, in respect of an offence under Section 420 IPC, the essential ingredients are: -
1) deception of any person, either by making a false or misleading representation or by other action or by omission;
2) fraudulently or dishonestly inducing any person to deliver any property, or
3) the consent that any persons shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit (see: Harmanpreet Singh Ahluwalia v. State of Punjab, (2009) 7 SCC 712 :Page 10 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026
NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined (2009) Cr.L.J. 3462 (SC))
37. Further, in both the aforesaid sections, mens rea i.e. intention to defraud or the dishonest intention must be present, and in the case of cheating it must be there from the very beginning or inception.
38. In our view, the plain reading of the complaint fails to spell out any of the aforesaid ingredients noted above. We may only say, with a view to clear a serious misconception of law in the mind of the police as well as the courts below, that if it is a case of the complainant that offence of criminal breach of trust as defined under Section 405 of IPC, punishable under Section 406 of IPC, is committed by the accused, then in the same breath it cannot be said that the accused has also committed the offence of cheating as defined and explained in Section 415 of the IPC, punishable under Section 420 of the IPC.
39. Every act of breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of manipulating act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person may seek his remedy for damages in civil courts but, any breach of trust with a mens rea, gives rise to a criminal prosecution as well. It has been held in Hari Prasad Chamaria v. Bishun Kumar Surekha & Ors., reported in (1973) 2 SCC 823 as under:
"4. We have heard Mr. Maheshwari on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 Penal Code, 1860. For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in Page 11 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined the complaint by the appellant are correct. Even after making that allowance, we find that the complaint does not disclose the commission of any offence on the part of the respondents under Section 420 Penal Code, 1860. There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35.000/- There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35,000/- by deceiving him. It is further not the case of the appellant that a representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability on the respondents for the offence of cheating."
40. To put it in other words, the case of cheating and dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, a person who comes into possession of the movable property and receives it legally, but illegally retains it or converts it to his own use against the terms of the contract, then the question is, in a case like this, whether the retention is with dishonest intention or not, whether the retention involves criminal breach of trust or only a civil liability would depend upon the facts of each case.
41. The distinction between mere breach of contract and the offence of criminal breach of trust and cheating is a fine one. In case of cheating, the intention of the accused at the time of inducement should be looked into which may be judged by a Page 12 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined subsequent conduct, but for this, the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction i.e. the time when the offence is said to have been committed. Therefore, it is this intention, which is the gist of the offence.
42. Whereas, for the criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. The property in respect of which the offence of breach of trust has been committed must be either the property of some person other than the accused or the beneficial interest in or ownership' of it must be of some other person. The accused must hold that property on trust of such other person. Although the offence, i.e. the offence of breach of trust and cheating involve dishonest intention, yet they are mutually exclusive and different in basic concept.
43. There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of making a false or misleading representation i.e., since inception. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriated the same. Whereas, in case of cheating, the offender fraudulently or dishonestly induces a person by deceiving him to deliver any property. In such a situation, both the offences cannot co-exist simultaneously.
44. At the most, the court of the Additional Chief Judicial Magistrate could have issued process for the Page 13 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined offence punishable under Section 420 of the IPC i.e. cheating but in any circumstances no case of criminal breach of trust is made out. The reason being that indisputably there is no entrustment of any property in the case at hand. It is not even the case of the complainant that any property was lawfully entrusted to the appellants and that the same has been dishonestly misappropriated. The case of the complainant is plain and simple. He says that the price of the goods sold by him has not been paid. Once there is a sale, Section 406 of the IPC goes out of picture. According to the complainant, the invoices raised by him were not cleared. No case worth the name of cheating is also made out.
45. Even if the Magistrate would have issued process for the offence punishable under Section 420 of the IPC, i.e., cheating the same would have been liable to be quashed and set aside, as none of the ingredients to constitute the offence of cheating are disclosed from the materials on record.
46. It has been held in State of Gujarat v. Jaswantlal Nathalal reported in (1968) 2 SCR 408, "The term "entrusted" found in Section 405 IPC governs not only the words "with the property"
immediately following it but also the words "or with any dominion over the property" occurring thereafter--see Velji Raghvaji Patel v. State of Maharashtra [(1965) 2 SCR 429]. Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the ownership of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not mean that such an entrustment need conform to all the technicalities of the law of trust -- see Jaswantrai Manilal Akhaney v. State of Bombay [1956 SCR 483]. The expression Page 14 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an "entrustment".
47. Similarly, in Central Bureau of Investigation, SPE, SIU(X), New Delhi v. Duncans Agro Industries Ltd., Calcutta reported in (1996) 5 SCC 591 this Court held that the expression "entrusted with property" used in Section 405 of the IPC connotes that the property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or that the beneficial interest in or ownership thereof must be in the other person and the offender must hold such property in trust for such other person or for his benefit. The relevant observations read as under: -
"27. In the instant case, a serious dispute has been raised by the learned counsel appearing for the respective parties as to whether on the face of the allegations, an offence of criminal breach of trust is constituted or not. In our view, the expression "entrusted with property" or "with any dominion over property" has been used in a wide sense in Section 405 IPC. Such expression includes all cases in which goods are entrusted, that is, voluntarily handed over for a specific purpose and dishonestly disposed of in violation of law or in violation of contract. The expression 'entrusted' appearing in Section 405 IPC is not necessarily a term of law. It has wide and different implications in different Page 15 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined contexts. It is, however, necessary that the ownership or beneficial interest in the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. The expression 'trust' in Section 405 IPC is a comprehensive expression and has been used to denote various kinds of relationships like the relationship of trustee and beneficiary, bailor and bailee, master and servant, pledger and pledgee. When some goods are hypothecated by a person to another person, the ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in the other person and the offender must hold such property in trust for such other person or for his benefit. In a case of pledge, the pledged article belongs to some other person but the same is kept in trust by the pledgee. [...]"
(Emphasis supplied)
48. The aforesaid exposition of law makes it clear that there should be some entrustment of property to the accused wherein the ownership is not transferred to the accused. In case of sale of movable property, although the payment may be deferred yet the property in the goods passes on delivery as per Sections 20 and 24 respectively of the Sale of Goods Act, 1930.
"20. Specific goods in a deliverable state. -- Where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is Page 16 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined made and it is immaterial whether the time of payment of the price or the time of delivery of goods, or both, is postponed.
Xxx xxx xxx
24. Goods sent on approval or "on sale or return".
-- When goods are delivered to the buyer on approval or "on sale or return" or other similar terms, the property therein passes to the buyer--
(a) when he signifies his approval or acceptance to the seller or does any other act adopting the transaction;
(b) if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time."
49. From the aforesaid, there is no manner of any doubt whatsoever that in case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it. [See : Lalit Chaturvedi and Others v. State of Uttar Pradesh and Another : 2024 SCC OnLine SC 171 & Mideast Integrated Steels Ltd. (MESCO Steel Ltd.) and Others v. State of Page 17 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined Jharkhand and Another : 2023 SCC OnLine Jhar 301]
50. The case at hand falls in category No. 1 as laid in Smt. Nagawwa (supra) referred to in para 7 of this judgment.
51. If it is the case of the complainant that a particular amount is due and payable to him then he should have filed a civil suit for recovery of the amount against the appellants herein. But he could not have gone to the court of Additional Chief Judicial Magistrate by filing a complaint of cheating and criminal breach of trust. It appears that till this date, the complainant has not filed any civil suit for recovery of the amount which according to him is due and payable to him by the appellants. He seems to have prima facie lost the period of limitation for filing such a civil suit.
52. In such circumstances referred to above, the continuation of the criminal proceeding would be nothing but abuse of the process of law."
11 Considering the aforesaid legal position, for an offence under Section 406 of the IPC, the essential requirement is entrustment of property and its subsequent dishonest misappropriation. On the other hand, for an offence punishable under Section 420 of the IPC, it is necessary to establish cheating, i.e., deception by the accused and dishonest inducement of the person deceived to deliver property. In cases of criminal breach of trust, the property is initially acquired lawfully or with consent, but is subsequently Page 18 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined misappropriated. In contrast, in cases of cheating, the property is obtained by deception from the very inception. In the present case, the essential ingredients of both the provisions are absent, and in any case, the offences under Sections 406 and 420 cannot co-exist simultaneously.
12 It is also required to be noted that as per the FIR, the period of offence is stated to be from 2012 to 23.08.2015 and the first informant has approached to the police station on 06.02.2016. It is true that the delay cannot be the sole ground for quashment of the FIR however, along with the delay the allegation which are made in the FIR even if taken as on their face value that only suggested when on 23.08.2015 the complainant went along with his advocate to Parsoda village for recovery of the amount of Rs.5,03,000/- when the accused has denied to pay, the impugned FIR was lodged after the delay of almost six months. The applicant had also annexed the copy of the notice issued to the complainant calling to pay the amount of selling of crops of 71 agriculturists which also suggests that with a view to avoid the said payment as a counterblast the FIR is lodged. In that background, the continuation of proceedings would nothing but gross abuse of process of law. Continuation of proceedings would Page 19 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026 NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined nothing but gross abuse of process. In that background, the impugned FIR is required to be set aside.
13This Court has referred to the decision of the Apex Court in State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, wherein the Apex Court has laid down the guidelines governing the exercise of inherent powers under Section 482 of the Code of Criminal Procedure which are reproduced hereinbelow:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we have given the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(i) 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 not prima facie constitute any offence or make out a case against the accused.Page 20 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026
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(ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation 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.
(iii) 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.
(iv) 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.
(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(vi) 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 institution 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.
(vii) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
Page 21 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026NEUTRAL CITATION R/CR.MA/34460/2016 JUDGMENT DATED: 27/03/2026 undefined 14This case falls under the criteria (i) and (v) from the case of Bhajan Lal (supra), therefore the application deserves to be allowed.
15Resultantly, the present application is allowed. The impugned FIR being I-C.R. No.13 of 2016 dated 06.02.2016 registered with Vijapur Police Station, District Mehsana, as well as all consequential proceedings arising therefrom, are hereby quashed and set aside. Rule is made absolute accordingly.
(M. K. THAKKER,J) M.M.MIRZA Page 22 of 22 Uploaded by M.M.MIRZA(HC01407) on Thu Apr 09 2026 Downloaded on : Fri Apr 10 23:39:32 IST 2026