KRISHNA MURARI, J.

Leave granted.

2. This appeal is directed against the judgment and order dated 01.10.2019 passed by the High Court of Calcutta (hereinafter referred to as “High Court”) in C.R.R No. 731 of 2017 filed by the appellants praying for quashing of proceedings being G.R. Case No. 1221 of 2013 pending before the Court of Learned Chief Metropolitan Magistrate, Kolkata and arising out of Bowbazar Police Station Case No. 168 dated 28.03.2013 under Sections 420 , 406 and 120B of the Indian Penal Code, 1860 (hereinafter referred to as Signature Not Verified “ IPC ”).

SATISH KUMAR YADAV Date: 2022.03.22

By the said judgment, the High Court dismissed the prayer for 17:11:34 IST Reason:

Ltd. Subsequently, Respondent No. 2 filed their share application form along with the cheque of Rs. 2.5 crore.

2 3.3 Subsequently, an allotment letter dated 29.03.2008 was issued in favour of Respondent No. 2 whereby 2,50,000 shares were issued in lieu of the investment made by him. The proforma respondent no. 3 company and Respondent No. 2 arrived at an understanding, regarding the investment made by Respondent No. 2.

3.4 Having failed to bring the I.P.O as per memorandum of understanding dated 20.08.2009, Respondent No. 2 issued a legal notice dated 06.12.2011 to the Appellants, who duly replied to the legal notice denying all the allegations contained in the legal notice.

3.5 That on 06.01.2012, Respondent No. 2 filed a police complaint with PS Rajender Nagar, New Delhi and the concerned officer of PS Rajender Nagar apprised Respondent No. 2 that the complaint does not pertain to their jurisdiction and therefore the same ought to be transferred. On 11.04.2012, Respondent No. 2 filed a complaint with the Economic Offences Wing (hereinafter referred to as “EOW”) and the said complaint was transferred to PS Darya Ganj, New Delhi.

3.6 That on 06.06.2012, Respondent No. 2 filed a complaint being CC No. 306/1/12 under Section 156(3) of Cr.P.C before the Tiz Hazari Court, New Delhi for registration of FIR against the Appellants and their company. On 01.09.2012, Respondent No. 2 also filed another Complaint No. 190 of 12 3 before Tis Hazari Court, New Delhi under Section 68 of the Companies Act read with Section 200 of Cr.P.C which is pending adjudication. 3.7 That the Metropolitan Magistrate (hereinafter referred to as “MM”), Tis Hazari vide order dated 28.02.2013 observed that the entire dispute raised by Respondent No. 2 was civil in nature and there was no criminality involved, thereby turning down the prayer of Respondent No. 2 for registration of an FIR and posted the case for pre-summoning evidence with regard to the application under Section 156(3) Cr.P.C filed by Respondent No.2. It is pertinent to mention here that the order of the MM, Tis Hazari Court, New Delhi attained finality as it was not put to further challenge. 3.8 That on 28.03.2013, Respondent No. 2 filed a second complaint under Section 406 , 409 , 420 , 468 , 120B and 34 IPC on the basis of the same cause of action with the PS Bowbazar at Kolkata, West Bengal and the same was converted into an FIR bearing No. 168 under Section 406 , 420 , 120B IPC. A final closure report dated 04.03.2014 was filed by the concerned Police Station recommending closure of the case since the entire dispute was found to be civil in nature.

3.9 That Respondent No. 2 filed a protest petition being GR No. 1221/2013 with the Chief Metropolitan Magistrate (hereinafter referred to as “CMM”), Kolkata against closure report dated 04.03.2014 and vide order dated 4 08.03.2016, the CJM allowed the protest petition and directed for further investigation.

3.10 In the meantime, the authorized representative of Respondent No. 2 made a statement before the MM, Tish Hazari, New Delhi for withdrawing the complaint case.

3.11 Appellant No. 1 received a notice dated 14.11.2016 under Section 41(a) Cr.P.C for appearance before the Investigation Officer (hereinafter referred to as “IO”) at PS Bowbazar, Kolkata. In his reply to the said notice, Appellant No. 1 stated that a complaint has already been filed with the same cause of action before the Tis Hazari Court and further sought time to produce the documents sought in the notice. Thereafter, Appellant No. 1 sent a letter with all the relevant documents required for investigation thereby extending full co- operation to the IO at PS Bowbazar, Kolkata in connection with Case No. 168. The IO PS Bowbazar, Kolkata sent another notice under Section 41(a) Cr.P.C dated 23.12.2016 to Appellant No. 1 and 2 to appear before him with the relevant documents.

3.12 That vide order dated 14.02.2017, the CMM, Calcutta took cognizance of the offence under Section 406 , 420 , 120B IPC in connection with Case No. 168 dated 28.03.2013 corresponding to GR Case No. 1221 of 2013 i.e., protest petition.

5 3.13 Being aggrieved, Appellants herein filed a quashing petition being CRR No. 731 of 2017 under Section 482 Cr.P.C seeking quashing of FIR No. 168 dated 28.03.2013 and also impugned the proceedings in GR Case No. 1221 of 2013 by invoking Sections 401 and 482 Cr.P.C.

3.14 That the High Court vide order dated 06.03.2017 issued notice to the Respondents and stayed further proceeding of criminal case. Respondent No. 2 filed an application for vacation of the stay order granted by the High Court but the same was dismissed vide order dated 24.03.2017 while observing that Respondent No. 2 had also filed a complaint at Delhi on the same allegations, thus the proceedings at Calcutta were intended to harass the Appellants. 3.15 However, the High Court vide impugned judgment and order dated 01.10.2019 dismissed the quashing as well as the revision petition filed by the Appellants and observed that in order to exercise the power under Section 482 Cr.P.C, the only requirement is to see whether continuance of the criminal proceedings would be a total abuse of the process of the court and the continuance of the criminal proceedings against the appellants is in no way an abuse of the process of the court. The operative portion of the aforesaid judgment reads as under: -

However, Respondent No. 2 filed an application under Section 173(8) of Cr.P.C for further investigation which was allowed and after further investigation, charge sheet was filed against the Appellants herein. 7 4.2 It was vehemently submitted that the complaint filed in PS Bowbazar was the exact reproduction of the complaint filed in New Delhi with the only difference being the place of occurrence. In the complaint lodged at Delhi, the place of occurrence was shown to be the office at New Delhi and in subsequent complaint at Calcutta, the place of occurrence was changed to its office at Calcutta.

4.3 It was further submitted that the allegations contained in the FIR are purely contractual disputes of civil nature but Respondent No. 2 has given a criminal colour to it and that breach of contract does not come within the purview of cheating as defined in IPC . In addition to it, it was submitted that the transaction in question between the parties as revealed from the F.I.R was purely a sale transaction or what may be called as a commercial transaction, therefore the question of cheating does not arise at all. 4.4 It was further submitted that there are no allegations in the complaint filed by the Respondent No. 2 about the Appellants having fraudulent or dishonest intentions at the time of making the representation. 4.5 It was also further submitted that the High Court failed to appreciate that the two allegations recorded in the complaint against the Appellants being belated allotment of shares to the complainant company and the Appellant No. 8 1’s failure to bring out an IPO are clearly commercial disputes with no element of criminality.

4.6 It was further submitted that the High Court failed to appreciate that a mere failure to keep a promise does not create any presumption of a dishonest intention amounting to a criminal breach of trust under Section 409 IPC or cheating under Section 420 IPC.

4.7 Heavy reliance was placed on the decisions of this Court in V.Y.Jose & Anr. Vs. State of Gujarat & Anr.1 , Murari Lal Gupta Vs. Gopi Singh2; K. Jayaram and Ors. Vs. Bangalore Development Authority & Ors. 3; Union of India and Ors. Vs. Shantiranjan Sarkar4 .

Contentions on behalf of Respondents

5. Mrs. Anjana Prakash, learned senior advocate appearing on behalf of the Respondents has vehemently submitted that the allegations contained in the complaint disclosed all the ingredients of the alleged offences and moreover, the criminal proceedings have not been initiated with mala fide intention and that the complaint case filed before the magistrate of Tis Hazari Court was not decided on merit and as such the complainant cannot be barred from making a fresh complaint.

1 (2009) 3 SCC 78 2 (2005) 13 SCC 699 3 2021 SCC OnLine SC 1194 4 (2009) 3 SCC 90 9 5.1 It was further submitted that the complaint at Kolkata had been filed only after the prayer u/s 156(3) Cr.P.C was rejected by the Delhi Court on 28.02.2013 in order to avail legal remedies available and when the Calcutta Court on 08.03.2016 allowed further investigation, the Respondent in order to avoid multiplicity of proceedings, withdrew the complaint in Delhi on 09.09.2016.

5.2 It was further submitted that it is an established proposition of law that two complaints can co-exist simultaneously if the scope of two complaints are different. Reliance in support of the contention was placed on the judgment of this Court in K. Jagadish Vs. Udaya Kumar G.S. & Anr. 5, wherein it was reiterated that two remedies ie. civil and criminal are not mutually exclusive but can co-exist since they essentially differ in their context and consequence. 5.3 It was also submitted that the established principle of quashing is that at the stage of cognizance all that a Court is required to see if prima facie an offence is made out and courts should restrain itself from throttling legitimate prosecutions at the threshold and the law should be allowed to take its course. Substantiating the same, it was submitted that the complainant has made a specific allegation that on inducement of the accused persons, he had parted with 2.50 crore on a false promise that they would be allotted shares in the company. On 29.02.2008, a false statement was made by the accused persons that the complainant had been allotted the shares, whereas it 5 (2020) 14 SCC 552 10 transpired that the resolution about the allotment of shares was taken only on 23.03.2009 that is one year later.

5.4 Strong reliance was placed on the decisions of this Court in V. Ravi Kumar Vs. State and Ors.6 ; Indian Oil Corporation Vs. NEPC India Ltd. & Ors.7 ; A.V. Mohan Rao & Anr. Vs. M Kishan Rao & Anr. 8; K. Jagadish (Supra).

6. We have carefully considered the submissions made at the Bar and perused the materials placed on record.

7. Predominantly, the Indian Judiciary has time and again reiterated that forum shopping take several hues and shades but the concept of ‘forum shopping’ has not been rendered an exclusive definition in any Indian statute. Forum shopping as per Merriam Webster dictionary is:-

8. The Indian judiciary’s observation and obiter dicta has aided in streamlining the concept of forum shopping in the Indian legal system. This Court has condemned the practice of forum shopping by litigants and termed it 6 (2019) 14 SCC 568 7 (2006) 6 SCC 736 8 (2002) 6 SCC 174 11 as an abuse of law and also deciphered different categories of forum shopping.

9. A two-Judge bench of this Court in Union of India & Ors. Vs. Cipla Ltd. & Anr.9 has laid down factors which lead to the practice of forum shopping or choice of forum by the litigants which are as follows:-

10. Forum shopping has been termed as disreputable practice by the courts and has no sanction and paramountcy in law. In spite of this Court condemning the practice of forum shopping, Respondent No. 2 filed two complaints i.e., a complaint u/s 156(3) Cr.P.C before the Tis Hazari Court, New Delhi on 06.06.2012 and a complaint which was eventually registered as FIR No. 168 u/s 406 , 420 , 120B IPC before PS Bowbazar, Calcutta on 28.03.2013. ie., one in Delhi and one complaint in Kolkata. The Complaint filed in Kolkata was a reproduction of the complaint filed in Delhi except with the change of place occurrence in order to create a jurisdiction.

11. A two-Judge bench of this Court in Krishna Lal Chawla & Ors. Vs. State of U.P. & Anr.13 observed that multiple complaints by the same party against the same accused in respect of the same incident is impermissible. It held that Permitting multiple complaints by the same party in respect of the same incident, whether it involves a cognizable or private complaint offence, will lead to the accused being entangled in numerous criminal proceedings. As such he would be forced to keep surrendering his liberty and precious time before the police and the courts, as and when required in each case.

12. The legality of the second FIR was extensively discussed by this Court in T.T. Antony Vs. State of Kerala & Ors.14 . It was held that there can be no second FIR where the information concerns the same cognisable offence 13 (2021) 5 SCC 435 14 (2001) 6 SCC 181 14 alleged in the first FIR or the same occurrence or incident which gives rise to one or more cognizable offences. It was further held that once an FIR postulated by the provisions of Section 154 of Cr.P.C has been recorded, any information received after the commencement of investigation cannot form the basis of a second FIR as doing so would fail to comport with the scheme of the Cr.P.C . The Court further held that barring situations in which a counter- case is filed, a fresh investigation or a second FIR on the basis of the same or connected cognizable offence would constitute an "abuse of the statutory power of investigation" and may be a fit case for the exercise of power either under Section 482 of Cr.P.C or Articles 226/227 of the Constitution of India

13. A two-Judge bench of this Court in K. Jayaram and Ors. Vs. Bangalore Development Authority & Ors.15 observed:

14. The genesis of the present appeal originates from the impugned order pronounced by the High Court whereby the High Court dismissed the application filed under Section 482 as well as 401 Cr.P.C. Taking that into concern, it is necessary to advert to the principles settled by judicial pronouncements laying down the circumstances under which High Court can exercise its inherent powers under Section 482 Cr.P.C.

15. This Court in the widely celebrated judgment of State of Haryana & Ors. Vs. Bhajan Lal & Ors.16 considered in detail the scope of the High Court powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India to quash the FIR and referred to several judicial precedents and held that the High Court should not embark upon an inquiry into the merits and demerits of the allegations and quash the proceedings without allowing the investigating agency to complete its task. At the same time, this Court identified the following cases in which FIR/complaint can be quashed:

16 1992 Supp (1) SCC 335 16 same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and 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.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the 21 proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) 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.”

16. This Court in R.P. Kapur Vs. State of Punjab17 summarized categories of cases where inherent power can and should be exercised to quash the proceedings:-

17 (1960) 3 SCR 388 17

(ii) Where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

17. This Court in Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors.18 observed:-

18. In Indian Oil Corpn. v NEPC India Ltd. & Ors. 19, a two-judge Bench of this Court reviewed the precedents on the exercise of jurisdiction under 18 (2007) 12 SCC 1 19 (2006) 6 SCC 736 18 Section 482 of the Code of Criminal Procedure 1973 and formulated guiding principles in the following terms:

20. This Court in G. Sagar Suri & Anr. Vs. State of UP & Ors. 21 observed that it is the duty and obligation of the criminal court to exercise a great deal of caution in issuing the process, particularly when matters are essentially of civil nature.

20 (2004) 1 SCC 691 21 (2000) 2 SCC 636 20

21. This Court has time and again cautioned about converting purely civil disputes into criminal cases. This Court in Indian Oil Corporation (Supra) noticed the prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court further observed that:-

22. At the outset, Respondent No. 2/Complainant alleged that the Appellants were responsible for the offence punishable under Section 420 , 405 , 406 , 120B IPC. Therefore, it is also imperative to examine the ingredients of the said offences and whether the allegations made in the complaint, read on their face, attract those offences under the Penal Code.

23. Section 405 of IPC defines Criminal Breach of Trust which reads as under: -

24. “Entrustment” of property under Section 405 of the Indian Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, ‘in any manner entrusted with property’. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of ‘trust’. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.

25. The definition in the section does not restrict the property to movables or immoveable alone. This Court in R K Dalmia vs Delhi Administration22 held that the word ‘property’ is used in the Code in a much wider sense than the expression ‘moveable property’. There is no good reason to restrict the 22 (1963) 1 SCR 253 22 meaning of the word ‘property’ to moveable property only when it is used without any qualification in Section 405 .

26. In Sudhir Shantilal Mehta Vs. CBI23 it was observed that the act of criminal breach of trust would, Interalia mean using or disposing of the property by a person who is entrusted with or has otherwise dominion thereover. Such an act must not only be done dishonestly but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.

27. Section 415 of IPC define cheating which reads as under: -

28. A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.

29. Section 420 IPC defines cheating and dishonestly inducing delivery of property which reads as under: -

30. Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 years and also makes the person liable to fine.

31. To establish the offence of Cheating in inducing the delivery of property, the following ingredients need to be proved:-

32. As observed and held by this Court in the case of Prof. R.K. Vijayasarathy & Anr. Vs. Sudha Seetharam & Anr. 24 , the ingredients to constitute an offence under Section 420 are as follows:-

ii) the person cheated must be dishonestly induced to;

a) deliver property to any person; or

b) make, alter or destroy valuable security or anything signed or 24 (2019) 16 SCC 739 25 sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC.

33. The following observation made by this Court in the case of Uma Shankar Gopalika Vs. State of Bihar & Anr. 25 with almost similar facts and circumstances may be relevant to note at this stage:-

34. There can be no doubt that a mere breach of contract is not in itself a criminal offence and gives rise to the civil liability of damages. However, as held by this court in Hridaya Ranjan Prasad Verma & Ors. Vs. State of Bihar & Anr.26 , the distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by the Respondent No. 2 does not disclose dishonest or fraudulent intention of the appellants.

35. In Vesa Holdings Pvt. Ltd. & Anr. Vs. State of Kerala & Ors. 27, this Court made the following observation:-

36. Having gone through the complaint/FIR and even the chargesheet, it cannot be said that the averments in the FIR and the allegations in the complaint against the appellant constitute an offence under Section 405 & 420 IPC, 1860. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under Section 420 IPC can be said to have been made out. In the instant case, there is no material to indicate that Appellants had any malafide intention against the Respondent which is clearly deductible from the MOU dated 20.08.2009 arrived between the parties.

37. The entire origin of the dispute emanates from an investment made by Respondent No. 2, amounting to Rs. 2.5 crores in lieu of which 2,50,000/- equity shares were issued in the year 25.03.2008, finally culminating into the MOU dated 20.08.2009. That based on this MOU respondent No. 2 filed three complaints, two at Delhi and one at Kolkata. Thus, two simultaneous proceedings, arising from the same cause of action i.e. MOU dated 28 20.08.2009 were initiated by Respondent No. 2 amounting to an abuse of the process of the law which is barred. The details of the complaints are as under:-

Malafide intention of Respondent No. 2 is culled out from following facts:-

.................................J. (S. ABDUL NAZEER) ...............................J. (KRISHNA MURARI) NEW DELHI;

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