Gujarat High Court
Bharatbhai Gangdasbhai Kanjaria vs State Of Gujarat on 30 January, 2025
NEUTRAL CITATION
R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 21578 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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Approved for Reporting Yes No
No
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BHARATBHAI GANGDASBHAI KANJARIA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. JAY M THAKKAR(6677) for the Applicant(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR NEERAJ SONI(3433) for the Respondent(s) No. 2
MR. MANAN MAHETA, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 30/01/2025
ORAL JUDGMENT
1. By this application under section 482 of the Code of Criminal Procedure,1973, the applicant seeks to invoke the inherent powers of this Court praying for quashing of the private complaint being Criminal Inquiry No.297 of 2018 (Criminal Case No.8185 of 2018) filed before the Court of Learned Chief Judicial Magistrate, Jamnagar along with the order dated 15.11.2018 passed thereunder by learned 10 th Addl. Chief Judicial Magistrate, Jamnagar.
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2. The case of the prosecution may be summarized as under;
2.1 The respondent No.2-original complainant filed a private complaint in the Court of the learned Chief Judicial Magistrate, Jamnagar against the applicant herein of the offence punishable under Sections 406, 415, 417, 418 and 420 of the IPC. The same was then registered as Criminal Case No.8185 of 2018. After recording the verification of the complainant on oath, the learned Chief Judicial Magistrate, Jamnagar thought fit to issue process under Section 204 of the Code for the offence as mentioned in the complaint.
2.2 It is the case of the complainant that the applicant herein had borrowed in all a sum of Rs.3,00,000/- from the complainant for the purpose of business on an assurance to return back the borrowed amount as and when asked by the complainant. The said amount was given by the complainant to the accused on 15.12.2013. Thereafter, upon demand being made by the complainant to return back the borrowed amount, the applicant-accused issued a cheque being No.05539 dated 27.01.2014 of Axis Bank, Navrangpura, Ahmedabad, which came to be deposited by the complainant in his Bank viz. Bank of Baroda, Khodiyar Colony Branch, Jamnagar on 28.04.2014, which was dishonored with an endorsement that 'signature defers', which compelled the complainant to file complaint under Section 138 of the N.I. Act, wherein, the applicant- accused came to be convicted by the learned Chief Judicial Magistrate, Jamnagar vide judgment and order dated Page 2 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined 16.03.2016, which order was then challenged by way of filing appeal being Criminal Appeal No.32 of 2016 wherein, learned Sessions Judge, vide its judgment and order dated 22.09.2017, reversed the aforesaid order dated 16.03.2016 and acquitted the applicant-accused from the charges under Section 138 of the N.I. Act, which order was then assailed by the respondent No.2 before this Court by filing revision application being Criminal Revision Application No.1050 of 2017, and a Coordinate Bench of this Court (Coram Hon'ble Mr. Justice G.R. Udhwani) vide order dated 21.06.2018, rejected the revision application and thereby confirmed the order of acquittal passed by the learned Sessions Judge. After having lost completely in the proceedings under Section 138 of the N.I. Act, the present complaint has been filed by the respondent No.2-complainant.
3. Learned advocate Mr. Jay Thakkar appearing for the applicant submits that the impugned complaint is nothing but a sheer abuse of process of law, which fails to disclose commission of any cognizable offence. None of the ingredients to constitute the offence as alleged in the complaint are spelt out. Even if the entire case of the prosecution is accepted to be true, then also the dispute between the parties herein is essentially a civil dispute. Learned advocate Mr. Thakkar submits that non-payment of the borrowed amount by itself does not amount to commission of an offence of cheating or criminal breach of trust. He submits that having lost in the proceedings under Section 138 of the N.I. Act, the respondent No.2, with a mala fide intention, had filed the present Page 3 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined complaint. He could have invoked the said provisions at the time of filing the coplaint under Section 138 of the N.I. Act, however, after having lost comletely in the proceedings under Section 138, the complainant has filed the present complaint invoking the provisions of Indian Penal Code, which is nothing but an afterthought filed with an ulterior motive. Learned advocate Mr. Thakkar also submits that even if the entire case of the complainant is accepted as true, none of the ingredients to constitute the offence as alleged in the complaint are spelt out and, therefore, the continuation of the criminal proceedings against the applicant-accused would be nothing, but an abuse of the process of law. In support of his submissions, learned advocate Mr. Thakkar has relied upon the decision of this Court in the case of Ketanbhai Popatlal Patel vs. State of Gujarat, Criminal Misc. Application No.96 of 2007.
4. On the other hand, this application has been vehemently opposed by Mr. Mr. Neeraj Soni appearing for the respondent No.2-original complainant. He submits that the applicant- accused and the complainant were both friends, and one day, the applicant-accused came to the complainant and asked the complainant to give some money for some business purposes on the assurance that he will repay the same as and when demanded by the complainant. In this manner, the applicant- accused took Rs.3,00,000/- from the complainant on the assurance to repay the same. When the complainant demanded the money, applicant-accused issued a cheque of the said sum of amount, which on being presented in the Page 4 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined complainant's Bank, the same was dishonored with an endorsement that 'signature defers', which shows the intention of the applicant-accused that he did not want to repay the borrowed amount and his intention appears to be to defraud and cheat the complainant from the very inception. Under the circumstances, learned advocate Mr. Soni prays that, therefore, at this stage, the complaint should not be quashed and the trial should be permitted to proceed further. Hence, the present application deserved to be rejected.
5. This application has also been opposed by learned APP Mr. Maheta, and he submits that he is adopting all the arguments canvassed by learned advocate for the complainant and prays to dismiss the present application.
6. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether I should quash the complaint.
7. I am conscious of the restrictions to be exercised by the Court of Law while considering the petition under Section 482 of the Code of Criminal Procedure. However, in the matter on hand, there is nothing either in the complaint or in the sworn statement of the complainant that any property was entrusted to any of the applicants at all or the applicants had any domain over any of the properties of the respondent No.2, which they dishonestly converted to their own use so as to satisfy the ingredients of section 405 of IPC, punishable under Section 406 of IPC. Taking the complaint and the statement of the complainant as they are, it cannot be said even prima facie Page 5 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined that the applicants committed any offence punishable under section 406 of IPC since the ingredients of that offence were not satisfied. Hence, the leaned Magistrate has committed a grave error in issuing process against the applicant for the offence as mentioned in the complaint. Assuming for a moment that the applicants have failed to repay the amount borrowed by him from the complainant, even then the same would not even constitute an offence of cheating. In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the process, to say that he committed an act of cheating. A mere failure to keep a promise subsequently cannot be presumed as an act leading to cheating. Moreover, the present complaint also seems to be an afterthought as it was filed much after the initiation of the proceedings under Section 138 of the N.I. Act and also having lost in the said proceedings. I am in agreement with the contention canvassed by learned advocate Mr. Thakkar that the complainant ought to have invoked the provisions of the Indian Penal Code at the time of filing the complaint under Section 138 of the N.I. Act, and it is now well settled that the filing of second complaint on the same set of facts and against the same accused for the very same transaction is not permissible in the eye of law. Thus, it is a clear cut case of abuse of process of law, and, therefore, now no fruitful purpose would be served to ask the applicant-accused to face the trial.
8. In the aforesaid context, I would like to quote with profit Page 6 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined the decision of this Court, wherein the then Coordinate Bench of this Court (Coram: J.B. Pardiwala, J.) vide order dated 23.12.2016 passed in Criminal Misc. Application No.6454 of 2015, after referring to the decisions in the case of Amitbhai Anilchandra Shah vs. C.B.I. and T.T. Antory vs. State of Kerala, had quashed and set aside the FIR impugned therein. The findings recorded by the then Coordinate Bench are as under;
"9 The Supreme Court in the case of Amitbhai Anilchandra Shah vs. C.B.I. and another [AIR 2013 SC 3794] has considered at length the law on the subject by making a reference of its earlier decisions on the subject which includes T.T.Antony vs. State of Kerala [AIR 2001 SC 2631] as well as Babubhai vs. State of Gujarat and others [2010(12) SCC 254]:
"32. This Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Anthony (supra), this Court has categorically held that registration of second FIR (which is not a cross case) is violative of Article 21 of the Constitution. The following conclusion in paragraph Nos. 19, 20 and 27 of that judgment are relevant which read as under:
"19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and Page 7 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of subsection (8) of Section 173 CrPC.
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that subsection (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections Page 8 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution. The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions."
33. Mr. Rawal, learned ASG, by referring T.T. Anthony (supra) submitted that the said principles are not applicable and relevant to the facts and circumstances of this case as the said judgment laid down the ratio that there cannot be two FIRs relating to the same offence or occurrence. Learned ASG further pointed out that in the present case, there are two distinct incidents/occurrences, inasmuch as one being the conspiracy relating to the murder of Sohrabuddin with the help of Tulsiram Prajapati and the other being the conspiracy to murder Tulsiram Prajapati a potential witness to the earlier conspiracy to murder Sohrabuddin. We are unable to accept the claim of the learned ASG. As a matter of fact, the aforesaid proposition of law making registration of fresh FIR impermissible and violative of Article 21 of the Constitution is reiterated, re- affirmed in the following subsequent decisions of this Court:
1. Upkar Singh vs. Ved Prakash (2004) 13 SCC 292
2. Babubhai vs. State of Gujarat & Ors. (2010) 12 SCC 254
3. Chirra Shivraj vs. State of A.P. AIR 2011 SC 604
4. C. Muniappan vs. State of Tamil Nadu (2010) 9 SCC 567. Page 9 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined In C. Muniappan (supra), this Court explained consequence test, i.e., if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs shall have to be treated as a part of the first FIR. In the case on hand, in view of the principles laid down in the above referred decisions, in particular, C. Muniappan (supra) as well as in Chirra Shivraj (supra), apply with full force since according to the CBI itself it is the case where:
(i) The larger conspiracy allegedly commenced in November, 2005 and culminated into the murder of Tulsiram Prajapati in December, 2006 in a fake encounter;
(ii) The alleged fake encounter of Tulsiram Prajapati was a consequence of earlier false encounter of Sohrabuddin and Kausarbi since Tulsiram Prajapati was an eye witness to the abduction and consequent murders of Sohrabuddin and Kausarbi; and
(iii) Tulsiram Prajapati was allegedly kept under the control of accused police officers, as a part of the same conspiracy, till the time he was allegedly killed in a fake encounter. In view of the factual situation as projected by the CBI itself, the ratio laid down by this Court in C. Muniappan (supra), viz., merely because two separate complaints had been lodged did not mean that they could not be clubbed together and one chargesheet could not be filed [See T.T. Anthony (supra)].
35. Learned counsel for the petitioner has placed reliance on the following decisions of this Court which explained same transaction:
i) Babulal vs. Emperor , AIR 1938 PC 130
ii) S. Swamirathnam vs. State of Madras, AIR 1957 SC 340 Page 10 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined
iii) State of A.P. vs. Kandimalla Subbaiah & Anr., AIR 1961 SC 1241
iv) State of A.P. vs. Cheemalapati Ganeswara Rao & Anr., AIR 1963 SC 1850
36. In Babulal (supra), the Privy Council has held that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it.
37. In Swamirathnam (supra), the following conclusion in para 7 is relevant:
"7. On behalf of the appellant Abu Bucker it was contended that there has been misjoinder of charges on the ground that several conspiracies, distinct from each other, had been lumped together and tried at one trial. The Advocate for Swamirathnam, however, did not put forward this submission. We have examined the charge carefully and find no ground for accepting the contention raised. The charge as framed, discloses one single conspiracy, although spread over several years. There was only one object of the conspiracy and that was to cheat members of the public. The fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not change the conspiracy and did not split up a single conspiracy into several conspiracies. It was suggested that although the modus operandi may have been the same, the several instances of cheating were not part of the same transaction. Reliance was placed on the cast of Sharpurji Sorabji v. Emperor, AIR 1936 Bom 154 (A) and on the cast of Choragudi Venkatadari, In re. ILR 33 Mad 502 (B). These cases are not in point."
In the Bombay case, no charge of conspiracy had been Page 11 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined framed and the decision in the Madras case was given before Section 120B was introduced into the Indian Penal Code. In the present case, the instances of cheating were in pursuance of the conspiracy and were therefore parts of the same transaction.
38. In Kandimalla Subbaiah (supra), this Court held where the alleged offence have been committed in the course of the same transaction, the limitation placed by Section 234(1) cannot operate.
39. In Cheemalapati Ganeswara Rao (supra), while considering the scope of Section 239 of the old Code (Section 220 in the new Code), this Court held:
"28. The decision of the Allahabad High Court in T.B. Mukherji case directly in point and is clearly to the effect that the different clauses of Section 239 are mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses. A large number of decisions of the different High Courts and one of the Privy Council have been considered in this case. No doubt, as has been rightly pointed out in this case, separate trial is the normal rule and joint trial is an exception. But while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in, it would where the same act is committed by several persons, be not only inconvenient but injudicious to try all the several parsons separately. This would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. No corresponding advantage can be gained by the accused persons by following the procedure of separte trials. Where, however, several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials. But here, again, if those offences are Page 12 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. We entirely agree with the High Court that joint trial should be founded on some principle."
42. In the case of Babubhai (supra), the very same Bench considered the permissibility of more than one FIR and the test of sameness. After explaining FIR under Section 154 of the Code, commencement of the investigation, formation of opinion under Sections 169 or 170 of the Code, police report under Section 173 of the Code and statements under Section 162 of the Code, this Court, has held that the Court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents having two or more parts of the same transaction. This Court further held that if the answer is in affirmative, the second FIR is liable to be quashed. It was further held that in case the contrary is proved, where the version in the second FIR is different and is in respect of the two different incidents/crimes, the second FIR is permissible. This Court further explained that in case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted. It is clear from the decision that if two FIRs pertain to two different incidents/crimes, second FIR is permissible. In the light of the factual position in the case on hand, the ratio in that decision is not helpful to the case of the CBI."
10 I may also quote with profit a decision of the Supreme Court in the case of Surender Kaushik and others vs. State of U.P. and others, reported in 2013 Cri.L.J. 1570, wherein in paras 13 to 25, the Supreme Court held as under :
Page 13 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined "13. For apposite appreciation of the issue raised, it is necessitous to refer to certain authorities which would throw significant light under what circumstances entertainment of second FIR is prohibited. In Ram Lal Narang (supra), this Court was dealing with the facts and circumstances of a case where two FIRs were lodged and two charge sheets were filed. The Bench took note of the fact that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter of the first one and further the conspirators were different, although the conspiracy which was the subject matter of the first case may, perhaps, be said to have turned out to be a part of the conspiracy which was the subject matter of the second case. After adverting to the various facets, it has been opined that occasions may arise when a second investigation started independently of the first may disclose wide range of offences including those covered by the first investigation. Being of this view, the Court did not find any flaw in the investigation on the basis of the subsequent FIR.
14. In T.T. Antony (supra), it was canvassed on behalf of the accused that the registration of fresh information in respect of the very same incident as an FIR under Section 154 of the Code was not valid and, therefore, all steps taken pursuant thereto including investigation were illegal and liable to be quashed. The Bench, analyzing the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 of the Code, came to hold that only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 of the Code and, therefore, there can be no second FIR and consequently, there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. It was further observed that on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in Page 14 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Code.
15. It is worth noting that in the said case, the two Judge Bench explained and distinguished the dictum in Ram Lal Narang (supra) by opining that the Court had indicated that the real question was whether the two conspiracies were in truth and substance the same and held that the conspiracies in the two cases were not identical. It further proceeded to state that the Court did not repel the contention of the appellant regarding the illegality of the second FIR and the investigation based thereon being vitiated, but on facts found that the two FIRs in truth and substance were different since the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually. Thereafter, the Bench explained thus:
The 1973 CrPC specifically provides for further investigation after forwarding of report under subsection (2) of Section 173 CrPC and forwarding of further report or reports to the Magistrate concerned under Section 173(8) CrPC. It follows that if the gravamen of the charges in the two FIRs the first and the second is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 CrPC will be irregular and the court cannot take cognizance of the same.
16. In Upkar Singh (supra), a three Judge Bench was addressing the issue pertaining to the correctness of law laid down in the case of T.T. Antony (supra). The larger Bench took note of the fact that a complaint was lodged by the first respondent therein with Sikhera Police Station in Village Fahimpur Kalan at 10.00 a.m. on 20th May, 1995 making certain allegations against the appellant therein and some other persons. On the basis of the said complaint, the police had registered Page 15 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined a crime under Sections 452 and 307 of the IPC. The appellant had lodged a complaint in regard to the very same incident against the respondents therein for having committed offences punishable under Sections 506 and 307 of the IPC as against him and his family members. As the said complaint was not entertained by the concerned police, he, under compelling circumstances, filed a petition under Section 156(3) of the Code before the Judicial Magistrate, who having found a prima facie case, directed the concerned police station to register a crime against the accused persons in the said complaint and to investigate the same and submit a report. On the basis of the said direction, Crime No. 48A of 1995 was registered for offences punishable under Sections 147, 148, 149 and 307 of the IPC. Challenging the direction of the Magistrate, a revision was preferred before the learned Sessions Judge who set aside the said direction. Being aggrieved by the order passed by the learned Sessions Judge, a Criminal Miscellaneous petition was filed before the High Court of Judicature at Allahabad and the High Court, following its earlier decision in Ram Mohan Garg v. State of U.P.[10], dismissed the revision. While dealing with the issue, this Court referred to paragraph 18 of T.T. Antony (supra) and noted how the same had been understood:
11. This observation of the Supreme Court in the said case of T.T. Antony is understood by the learned counsel for the respondents as the Code prohibiting the filing of a second complaint arising from the same incident. It is on that basis and relying on the said judgment in T.T. Antony case an argument is addressed before us that once an FIR is registered on the complaint of one party a second FIR in the nature of a counter case is not registrable and no investigation based on the said second complaint could be carried out.
17. After so observing, the Court held that the judgment in T.T. Antony (supra) really does not lay down such a proposition of law as has been understood by the learned counsel for the respondent therein. The Bench referred to the factual score of T.T. Antony (supra) and explained Page 16 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined thus:
Having carefully gone through the above judgment, we do not think that this Court in the said cases of T.T. Antony v. State of Kerala has precluded an aggrieved person from filing a counter case as in the present case. To arrive at such a conclusion, the Bench referred to paragraph 27 of the decision in T.T. Antony (supra) wherein it has been stated that a case of fresh investigation based on the second or successive FIRs, not being a counter case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 of the Code or under Articles 226/227 of the Constitution.
Thereafter, the three Judge Bench ruled thus:
In our opinion, this Court in that case only held that any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition noticed by this Court, in our opinion, does not apply to counter complaint by the accused in the first complaint or on his behalf alleging a different version of the said incident.
18. Be it noted, in the said verdict, reference was made to Kari Choudhary v. Sita Devi[11], wherein it has been opined that there cannot be two FIRs against the same accused in respect of the same case, but when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried out under both of them by Page 17 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined the same investigating agency. Reference was made to the pronouncement in State of Bihar v. J.A.C. Saldanha[12] wherein it has been highlighted that the power of the Magistrate under Section 156(3) of the Code to direct further investigation is clearly an independent power and does not stand in conflict with the power of the State Government as spelt out under Section 3 of the Police Act.
19. It is worth noting that the Court also dealt with the view expressed in Ram Lal Narang (supra) and stated thus:
22. A perusal of the judgment of this Court in Ram Lal Narang v. State (Delhi Admn.) also shows that even in cases where a prior complaint is already registered, a counter complaint is permissible but it goes further and holds that even in cases where a first complaint is registered and investigation initiated, it is possible to file a further complaint by the same complainant based on the material gathered during the course of investigation. Of course, this larger proposition of law laid down in Ram Lal Narang case is not necessary to be relied on by us in the present case. Suffice it to say that the discussion in Ram Lal Narang case is in the same line as found in the judgments in Kari Choudhary and State of Bihar v. J.A.C. Saldanha. However, it must be noticed that in T.T. Antony case, Ram Lal Narang case was noticed but the Court did not express any opinion either way.
20. Explaining further, the Court observed that if the law laid down by this Court in T.T. Antony (supra) is to be accepted to have held that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code, such conclusion would lead to serious consequences inasmuch as the real accused can take the first opportunity to lodge a false complaint and get it registered by the jurisdictional police and then that would preclude the victim to lodge a complaint.
21. In Pandurang Chandrakant Mhatre (supra), the Court referred to T.T. Antony (supra), Ramesh Baburao Page 18 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined Devaskar v. State of Maharashtra [13] and Vikram v.
State of Maharashtra[14] and opined that the earliest information in regard to the commission of a cognizable offence is to be treated as the first information report and it sets the criminal law in motion and the investigation commences on that basis. Although the first information report is not expected to be an encyclopedia of events, yet an information to the police in order to be first information report under Section 154(1) of the Code, must contain some essential and relevant details of the incident. A cryptic information about the commission of a cognizable offence irrespective of the nature and details of such information may not be treated as first information report. After so stating, the Bench posed the question whether the information regarding the incident therein entered into general diary given by PW5 is the first information report within the meaning of Section 154 of the Code and, if so, it would be hit by Section 162 of the Code. It is worth noting that analyzing the facts, the Court opined that information given to the police to rush to the place of the incident to control the situation need not necessarily amount to an FIR.
22. In Babubhai (supra), this Court, after surveying the earlier decisions, expressed the view that the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case the contrary is proved, where the version in the second FIR is different and they are in respect of two different incidents/crimes, the second FIR is permissible. In case the accused in the first FIR comes forward with a different version or counterclaim in respect of the same incident, investigation on both the FIRs has to be conducted.
23. It is worth noting that in the said case, the Court expressed the view that the High Court had correctly Page 19 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined reached the conclusion that the second FIR was liable to be quashed as in both the FIRs, the allegations related to the same incident that had occurred at the same place in close proximity of time and, therefore, they were two parts of the same transaction.
24. From the aforesaid decisions, it is quite luminous that the lodgment of two FIRs is not permissible in respect of one and the same incident. The concept of sameness has been given a restricted meaning. It does not encompass filing of a counter FIR relating to the same or connected cognizable offence. What is prohibited is any further complaint by the same complainant and others against the same accused subsequent to the registration of the case under the Code, for an investigation in that regard would have already commenced and allowing registration of further complaint would amount to an improvement of the facts mentioned in the original complaint. As is further made clear by the three Judge Bench in Upkar Singh (supra), the prohibition does not cover the allegations made by the accused in the first FIR alleging a different version of the same incident. Thus, rival versions in respect of the same incident do take different shapes and in that event, lodgment of two FIRs is permissible.
25. In the case at hand, the appellants lodged the FIR No. 274 of 2012 against four accused persons alleging that they had prepared fake and fraudulent documents. The second FIR came to be registered on the basis of the direction issued by the learned Additional Chief Judicial Magistrate in exercise of power under Section 156(3) of the Code at the instance of another person alleging, inter alia, that he was neither present in the meetings nor had he signed any of the resolutions of the meetings and the accused persons, five in number, including the appellant No. 1 herein, had fabricated documents and filed the same before the competent authority. FIR No. 442 of 2012 (which gave rise to Crime No. 491 of 2012) was registered because of an order passed by the learned Magistrate. Be it noted, the complaint was filed by another member of the Governing Body of the Society Page 20 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined and the allegation was that the accused persons, twelve in number, had entered into a conspiracy and prepared forged documents relating to the meetings held on different dates. There was allegation of fabrication of the signatures of the members and filing of forged documents before the Registrar of Societies with the common intention to grab the property/funds of the Society. If the involvement of the number of accused persons and the nature of the allegations are scrutinized, it becomes crystal clear that every FIR has a different spectrum. The allegations made are distinct and separate. It may be regarded as a counter complaint and cannot be stated that an effort has been made to improve the allegations that find place in the first FIR. It is well-nigh impossible to say that the principle of sameness gets attracted. We are inclined to think so, for if the said principle is made applicable to the case at hand and the investigation is scuttled by quashing the FIRs, the complainants in the other two FIRs would be deprived of justice. The appellants have lodged the FIR making the allegations against certain persons, but that does not debar the other aggrieved persons to move the court for direction of registration of an FIR as there have been other accused persons including the complainant in the first FIR involved in the forgery and fabrication of documents and getting benefits from the statutory authority. In the ultimate eventuate, how the trial would commence and be concluded is up to the concerned court. The appellants or any of the other complainants or the accused persons may move the appropriate court for a trial in one court. That is another aspect altogether. But to say that it is a second FIR relating to the same cause of action and the same incident and there is sameness of occurrence and an attempt has been made to improvise the case is not correct. Hence, we conclude and hold that the submission that the FIR lodged by the fourth respondent is a second FIR and is, therefore, liable to be quashed, does not merit acceptance."
11 I may also quote with profit a decision of the Supreme Court in the case of Anju Chaudhary v. State Page 21 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined of Uttar Pradesh and another, reported in 2013(3) GLH 237, wherein the Supreme Court held as under:
"23. Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given hereinbelow i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.
24. We have already noticed that in T.T. Antony case this Court did not consider the legal right of an aggrieved person to file counterclaim, on the contrary from the observations found in the said judgment it clearly indicates that filing a counter complaint is permissible.
41.It is not possible to enunciate any formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. Such things are to be gathered from the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action, commonality of purpose or design. Where two incidents are of different times with involvement of different persons, there is no commonality and the purpose thereof different and they emerge from different circumstances, it will not be possible for the Court to take a view that they form part of the same transaction and therefore, there could be a common FIR or subsequent FIR could not be permitted to be registered or there could be common trial.
42. Similarly, for several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or Page 22 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is a commonality of purpose or design, where there is a continuity of action, then all those persons involved can be accused of the same or different offences committed in the course of the same transaction."
12 What amounts to the 'same transaction' has been very succinctly explained by Hegde, J. (as His Lordship then was) in the case of C.N. Krishna Murthy vs. Abdul Subhan, reported in AIR 1965 Mysore 128. Of course, the term 'same transaction' was interpreted keeping in mind Section 235 of the Code of Criminal Procedure (old Code) corresponding to Section 220 of the Code of Criminal Procedure (new Code). His Lordship observed thus :
"The word 'transaction' is not intended to be interpreted in any artificial or technical sense; commonsense and ordinary use of language must decide whether on the facts of a particular case, one is concerned with one transaction or several transactions. In order that a series of acts be regarded as the same transaction, they must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action. Proximity of time and unity of place are not essential though they furnish good evidence of what unites several acts. The main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end either by attainment of the object or by being put an end to or abandoned, If any of these things happens and the whole process is begun over again it is not the same transaction but a new one in spite of the fact that the same general purpose may continue. The vinculum juris which interlinks a series of acts so intimately as to form the same transaction is different in each case, It may be proximity of time and place, or continuity of action, or community of purpose and design, or relation of cause and effect, or that of principal and subsidiary."Page 23 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025
NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined 13 Therefore, it is clear, to constitute same transaction, the series of acts alleged against the accused must be connected together in some way as for instance by proximity of time, unity of place, unity or community of purpose or design and continuity of action and the main test must really be continuity of action by which is meant the following up of some initial act through all its consequences and incidents until the series of acts or group of connected acts come to an end. It is, therefore, necessary to find out whether the offences alleged against the accused could be stated to be one committed during the same transaction.
14 The law recognizes a common trial or a common FIR being registered for one series of acts so connected together as to form the same transaction as contemplated under Section 220 Cr.P.C. The expression 'same transaction', from its very nature, is incapable of exact definition (Anju Chaudhary (supra); Mohan Baitha vs. State of Bihar, (2001)4 SCC 350). The distinction between two F.I.Rs. relating to the same incident, and two F.I.Rs. relating to different incidents or occurrences of the same incident, should be carefully examined (Babubhai vs. State of Gujarat, (2010)12 SCC 254). The merits of each case must be considered to determine whether a subsequently registered FIR is a second FIR relating to the same incident or offence or is based upon distinct and different facts and whether its scope of inquiry is entirely different or not. It will not be appropriate for the Court to lay down one straight jacket formula uniformly applicable to all cases. This will always be a mixed question of law and fact depending on the merits of a given case (Anju Chaudhary (supra)). The test, to determine whether two F.I.Rs. can be permitted to exist, is whether the two incidents are identical or not (Ram Lal Narang vs. State (Delhi Administration), (1979)2 SCC 322).
15 The concept of 'sameness' has been given a restricted meaning. In order to examine the impact of one or more F.I.Rs., the Court has to rationalise the facts and Page 24 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined circumstances of each case and then apply the test of 'sameness' to find out whether both F.I.Rs. relate to the same incident and to the same occurrence; and whether they are in regard to incidents which are two or more parts of the same transaction or relate completely to two distinct occurrences. It is only if the second F.I.R. relates to the same cause of action, the same incident, there is sameness of occurrence and an attempt has been made to improvise the case, would the second FIR be liable to be quashed. In cases where every FIR has a different spectrum, and the allegations made are distinct and separate, it may be regarded as a counter complaint, but it cannot be stated that an effort has been made to improve the allegations that find place in the first FIR or that the principle of 'sameness' is attracted. (Babubhai (supra); Surendra Kaushik v. State of Uttar Pradesh, 2013 Cri L.J. 1570).
16 The picture that emerges from the materials on record is as under:
(1) The original accused Nimeshbhai, who happens to be the elder son of Prahladbhai and elder brother of Harekrishna, is alleged to have created a false and concocted power of attorney purported to have been executed by his father and younger brother jointly in his favour.
(2) Prima facie, it appears that the power of attorney is forged and concocted, because both the father and the younger brother on the date of the execution of the power of attorney were not in India.
(3) The power of attorney alleged to be forged and concocted is common so far as the transfer of lands running in the name of Prahladbhai and his younger son Harekrishna is concerned.
(4) Two sales deeds came to be executed by Nimeshbhai in his capacity as a power of attorney in favour of the applicant herein on the very same day and date on the strength of the selfsame power of attorney.Page 25 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025
NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined (5) It appears that the allegations levelled in the First Information Report lodged in the year 2014 i.e. IC.R. No.61 of 2014 by and large are the same.
(6) The only distinction sought to be drawn by the first informant is that the parcels of land are distinct, because one parcel of land is running in favour of the fatherinlaw, namely Prahladbhai and the other parcel of land running in favour of his younger brotherinlaw, namely Harekrishnabhai.
(7) According to the complainant, the F.I.R. in question i.e. the present one is with regard to the fraudulent transfer of land running in the name of his fatherinlaw. Whereas, the F.I.R. of 2014 is with respect to the fraudulent transfer of land running in favour of his younger brother-in-law.
19 I am of the view that the F.I.R. in question could be termed as a 'second F.I.R' and not maintainable in law. There is definitely commonality in both the F.I.Rs. and they emerged from the very same set of circumstances. It is not possible for me to hold that they do not form part of the same transaction. Both the F.I.Rs. relate to the same incident and to the same occurrence.
20 In such circumstances, the First Information Report being C.R. No.I36 of 2015 registered before the Badoli Police Station, District: Vadodara for the offence punishable under Sections 406, 420, 463, 464, 467, 468, 469, 471 and 120B of the Indian Penal Code deserves to be quashed and is accordingly quashed.
21 The Investigating Officer shall complete the investigation of the First Information Report being IC.R. No.61 of 2014 registered with the Bodeli Police Station, District: Vadodara Rural in accordance with law at the earliest and file an appropriate report in that regard before the Court concerned.
22 It is needless to clarify that the Investigating Officer shall cite both Prahladbhai Ramanbhai Bhagat as well as his younger son Harekrishna Prahladbhai Bhagat as the witnesses if he decides to file chargesheet against the Page 26 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined accused persons.
23 I further clarify that I have otherwise not gone into the question whether the applicant is a bonafide purchaser of the properties for value without notice or not. It is for the trial Court to decide the same on the basis of the evidence that may be led by the parties in the trial.
24 Rule is made absolute. Direct service is permitted."
9. At this stage, I would also like to quote the decision of the Hon'ble Supreme Court in the case of Delhi Race Club (1940) Ltd. & Anr. vs. State of Uttar Pradesh & Anr., reported in 2024 (4) SC 3103, wherein it has been held by the Supreme Court in Paras 24 to 30 as under;
"24. 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 Page 27 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined 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."
25. What can be discerned from the above is that 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 : (2009) Cr.L.J. 3462 (SC)) Page 28 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined
26. 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.
27. 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.
28. 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 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 Page 29 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined 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."
29. 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.
30. 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 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. 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. There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at Page 30 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined 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."
10. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by the Supreme Court in the case of State of Haryana vs. Bhajan Lal, reported in (1992) Supp (1) SCC 335. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and is maliciously instituted with an ulterior motive, the high court shall not hesitate in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure to quash the proceeding. Under category seven (7) as enumerated in Bhajan Lal (supra), it is held thus, "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". There cannot be any dispute that the inherent power given to the High Court under Section 482 of the Code of Criminal Procedure is with a purpose and object of advancement of justice. Similar observations are also made by the Apex Court in the case of Vineet Kumar and Others vs. The State of Uttar Pradesh Page 31 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025 NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined and Another, reported in (2017) 13 SCC 369. The facts and circumstances of this case clearly attract category No.7 as quoted supra.
11. In the result, this application succeeds and is allowed. The private complaint being Criminal Inquiry No.297 of 2018 (Criminal Case No.8185 of 2018) filed before the Court of Learned Chief Judicial Magistrate, Jamnagar along with the order dated 15.11.2018 passed thereunder by learned 10 th Addl. Chief Judicial Magistrate, Jamnaga is hereby ordered to be quashed. All consequential proceedings arising from the same also stands terminated. Rule is made absolute.
Direct service is permitted.
(DIVYESH A. JOSHI,J) VAHID Page 32 of 32 Uploaded by ABDULVAHID A SHAIKH(HC00955) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 00:52:52 IST 2025