Bombay High Court
Naina Jatin Chelwani vs State Of Maharashtra, Thr. Police ... on 18 February, 2026
2026:BHC-NAG:3164-DB
7 apl 385.21.odt..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 385 OF 2021
1. Naina Jatin Chelwani APPLICANT
Aged about 28 years,
Occupation : Housework,
R/o. Venkat Ward,
Shashtri Ward, Dist. Katni
Madhya Pradesh
// V E R S U S //
1. The State of Maharashtra,
Through Police Station Officer, NON-APPLICANTS
Beltarodi, Nagpur
2. Nikhil Mahendra Sahare,
Aged about 24 years,
Occ. Service,
R/o. 389, Bhimnagar, Ward No.4,
Khaparkheda, Nagpur
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Mr. N.R. Jadhav, Advocate for the applicant.
Mrs. Mrunal Barbade, APP for non-applicant No.1/State.
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CORAM : URMILA JOSHI PHALKE, J.
DATED : 18.02.2026
ORAL JUDGMENT :
1. Heard.
2. ADMIT. Taken up for final disposal with the consent of learned counsel for the parties.
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3. None appears for the non-applicant No.2 despite the service of notice.
4. The present application is preferred by the applicant for quashing of the First Information Report in connection with crime No.458/2020 registered with the non-applicant No.1-Police Station Beltarodi under Sections 406 and 420 read with 34 of the Indian Penal Code (for short, 'IPC').
5. The crime is registered on the basis of report lodged by non-applicant No.2 stating that he was Graduate in B.E. Electrical and he was in search of employment. He read the Newspaper and noticed the advertisement issued by M/s Crest Technology in daily Newspaper "Lokmat Times". The newspaper advertisement shows that the Engineering Graduates who have passed their Engineering Examination in 2017 and 2018 were invited for direct interview for getting employment. Thereafter, the non-applicant No.2 made a phone call at the office of Crest Technology to enquire about their advertisement. Non-applicant No.2 spoken with one Himanshi Bhagwani who is also accused in 7 apl 385.21.odt..odt 3 the present crime and she informed about the selection process of Company and asked the non-applicant No.2 to visit the office of the Company at Manish Nagpur, Nagpur. This information was taken from the said office thereafter he was asked to meet the present applicant and co-accused Himanshi Bhagwani wherein during communication he enquired with them but subsequently he was asked to leave the office. It is further alleged that he was introduced with the proprietor of Crest Technology namely Akshay Agrawal and YVS Shyamsunder who have disclosed about various employment opportunities with the Government Organization such as Bharat Petroleum, Natural Gas and demanded an amount of Rs.14 Lakhs. Out of the said amount the amount of Rs.7 Lakhs is required to be deposited prior to appointment and another installment of Rs.7 Lakhs was to be deposited after the appointment. It was further disclosed by co-accused Akshay Agrawal and YVS Shyamsunder that he was interested and he would discuss about the company proposal with his father. It is further alleged that non-applicant's father met with Akshay Agrawal and YVS Shyamsundar, Both the accused informed them about the employment opportunities and also asked them to provide in exchange for a fee of Rs. 14 Lakhs. As The father of the 7 apl 385.21.odt..odt 4 non-applicant No.2 has not inclined to pay such huge amount due his poor financial status, the co-accused Akshay Agrawal and YVS Shyamsunar have given concession to the non-applicant No.2 and asked him to pay Rs.9,50,000/-. Non-applicant No.2 enquired about the guarantee of job on which they have stated that they would execute a promissory note through which Crest Technology would receive a loan for an amount of Rs.9,50,000/- from the non-applicant No.2 with 0% interest through a promissory note. Accordingly the father of the non-applicant No.2 transferred an amount of Rs.9,50,000/- in three installments. It is alleged that similar like non-applicant No.2 various persons were approached and amount was obtained. On the basis of the said report police have registered crime against the present applicant and the other co-accused under Section 406 and 420 read with 34 of the IPC.
6. Heard learned counsel for the applicant who invited my attention towards judgment of trial Court in Criminal Case No.1128/2021 and submitted that with the similar allegations co accused Himanshi Bhagawani was prosecuted before the trial Court and she is already acquitted from the said charges. He invited my attention towards the entire investigation papers and 7 apl 385.21.odt..odt 5 submitted that against co-accused Himanshi Bhagwani and present applicant similar allegation was levelled that they were working there as an H.R. Manager and only allegation is that present non-applicant No.2 approached to them. They made enquiry with him and thereafter he was introduced with the other accused. He submitted that even accepting the allegation as it is only allegation against present applicant is that she was presently working there as H.R. Manager. There is no allegation that either she has received any amount or she has received any monetary benefits by depositing of the amount by non-applicant No.2. He submitted that thus, considering the entire allegations and considering the fact that with the similar allegation the other co- accused Himanshi Bhagwani is already acquitted, no purpose would be served by forcing applicant to face the trial. In view of that the application deserves to be allowed.
7. Per contra, learned APP strongly opposed the said contention and submitted that the statement of informant and other prosecution witnesses discloses the presence of the present applicant in the Crest Technology, Manish Nagar Nagpur. The statements of the various witnesses disclose that she was working 7 apl 385.21.odt..odt 6 as H.R. Manager there and non-applicant No.2 and other persons who approached to the said Crest technology for securing job have deposited the amount. Thus there was common intention on the part of the applicant also to deceive the complainant and other persons and therefore, the application deserves to be rejected.
8. After considering the rival submissions of both the parties and on perusal of the investigation papers, only allegation against the present applicant is that she was working as H.R. Manager. On perusal of the statements of the witnesses i.e. complainant as well as other witnesses which show that they are unemployed youth. By reading the advertisement in the news paper they approached to the said Crest Technology wherein the present applicant was working as H.R. Manager. The allegation is that after taking the initial information from the said candidates they were sent to the present applicant and other co-accused Himanshi Bhagwani to record their information and thereafter they were introduced the other co-accused Akshay Agrawal and one YVS Shyamsundar. As far as the allegations in the FIR and the statements of the witnesses are concerned, i.e. co-accused Akshay 7 apl 385.21.odt..odt 7 Agrawal and said Shyamsundar have asked them to deposit some amount to secure the job and accordingly the complainant has deposited the amount of Rs.9,50,000/- in the account of the company. Thus, as far as the allegations are concerned, in the FIR and the entire charge-sheet against the applicant is concerned, which is to the extent that she was serving as a H.R. Manager and not more than that admittedly the copy filed on record of the judgment passed by the Judicial Magistrate First Class Court No.8 Nagpur in Criminal Case No.1128/2021 wherein the other co- accused Himanshi Prakash Bhagwani was prosecuted and she faced the trial. She is acquitted by the trial Court by observing that the prosecution could not prove the charges against her and thereby she was given benefit of doubt. In view of that she was acquitted from the charges. The similar charges are levelled against the present applicant.
9. The complainant has claimed that present applicant was working in Crest Technology as H.R. Manager and except that allegation admittedly there is no subsequent allegations that either she has demanded the amount or she has accepted the amount. Admittedly the prosecution has filed charge-sheet under 7 apl 385.21.odt..odt 8 Section 406, 420, 467, 468, 471 read with Section 34 of the IPC. The entire charge-sheet nowhere discloses that there is any involvement of the present applicant in the forgery of the documents. It is now settled that the offence under Section 406 and 420 of the IPC will not coexist together. There is difference between criminal breach of trust and cheating. The ingredients, in order to constitute criminal breach of trust, are there must be entrustment with person for property or dominion over the property, and 2) that person entrusted: - a) dishonestly misappropriated or converted property to his own use, or b) dishonestly used or disposed of the property or wilfully suffers any other person so to do in violation of: i. of any direction of law prescribing the method in which the trust is discharged; or ii. Of legal contract touching the discharge of 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 7 apl 385.21.odt..odt 9 would not do or omit if he were not so deceived; and (iii) in case 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.
11. Thus, in order to constitute criminal breach of trust under Section 406 of the IPC (i) there must be entrustment with person for property or dominion over property and (2) the person entrustment (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.
12. On plain reading of the complaint if fails to spell out of the aforesaid ingredient if it is the case of the complainant that criminal breach of trust as defined under Section 405 of the IPC punishable under Section 406 of the IPC is committed by accused, the same in same breath it cannot be said that the accused has 7 apl 385.21.odt..odt 10 also committed an offence of cheating as defined and explained in section 415 of IPC punishable under Section 420 of IPC.
13. This aspect is considered by the Hon'ble Apex Court in the case of Delhi Race Club (1940) Ltd. v. State of U.P reported in (2024) 10 SCC 690 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 Chamria v. Bishun Kumar Surekha and 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 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 7 apl 385.21.odt..odt 11 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 amounts to him in the month of December might create civil liability for them but this fact not be sufficient to fasten criminal liability on the respondents for the offence of cheating."
"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."
7 apl 385.21.odt..odt 12
14. Thus, there is a distinction between criminal breach of trust and cheating. For cheating criminal intention is necessary at the time of making of 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 any property in such a situation both the offences cannot co- exist simultaneously.
15. In this view of the matter the applicant is charge with the offence under Section 420 of the IPC as well as 406 of the IPC. Thus, the prosecution cannot say at one breath that it is criminal breach of trust and another breath that there was a fraudulent intention since inception as both offences cannot coexist together. The another ground which is required to be considered is that on the similar set of facts the another co-accused Himanshi Prakash Bhagwani is already acquitted by the trial Court as the prosecution could not prove the charges against her. Similar allegations are 7 apl 385.21.odt..odt 13 levelled against the present applicant also. More over the allegations in the entire charge-sheet nowhere reveal that the present applicant has either involved in forgery of the documents or acceptance of the amount. Only allegation is that she was working in Crest Technology as H.R. Manager and the non-applicant No.2 was sent to her for recording some information. Except that allegation there is no evidence to connect the present applicant in the alleged incident. For all above these grounds the application deserves to be allowed.
16. Hence, I proceed to pass the following order:-
ORDER
(i) The Criminal Application is allowed.
(ii) The First Information Report in connection with crime No.458/2020 registered with the non-applicant No.1-
Police Station Beltarodi under Sections 406 and 420 read with 34 of the Indian Penal Code is quashed and set aside to the extent of applicant- Naina Jatin Chelwani.
7 apl 385.21.odt..odt 14
17. The criminal application stands disposed of in the above said terms.
Pending applications, if any, also stand disposed of.
(URMILA JOSHI PHALKE, J.) manisha Signed by: Mrs. Manisha Shewale Designation: PA To Honourable Judge Date: 24/02/2026 11:08:46