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.

NEUTRAL CITATION R/CR.MA/21578/2019 JUDGMENT DATED: 30/01/2025 undefined

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;

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:

35. Learned counsel for the petitioner has placed reliance on the following decisions of this Court which explained same transaction:

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:

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:

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 :

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:

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:

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 :

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:

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;

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): -

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:

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