Gujarat High Court
Priyankaben Rameshchandra Aggarwal vs State Of Gujarat on 9 October, 2025
NEUTRAL CITATION
R/CR.MA/10792/2019 ORDER DATED: 09/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 10792 of 2019
With
R/CRIMINAL MISC.APPLICATION NO. 10796 of 2019
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PRIYANKABEN RAMESHCHANDRA AGGARWAL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1
MR KH BAXI(150) for the Respondent(s) No. 2.1
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No.
2.2,2.3.1,2.3.2,2.3.3,2.3.4,2.4,2.5,2.6.1,2.6.2,2.6.3,2.6.4
UNSERVED EXPIRED (N) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 09/10/2025
ORAL ORDER
1. I proposed to decide captioned petitions by this common judgment and order, as they are pertaining to selfsame FIR having involved similar issue.
2. By way of this petitions under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioners prayed for quashing and setting aside FIR being C.R.No.I - 26 of 2016 registered with Aslali Police Station, for the offences punishable under Sections 406, 420, 114 of the IPC as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioners herein.
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3. Brief facts of the case are as under:-
3.1 That land bearing block Nos.73, 138, 408, 401, 406 of village Bakrol and block No.193 of village Kramank (in short "the disputed land / disputed property") was run in favour of Khodabhai Surabhai - father of the private respondent in the revenue records. The complainant, her mother Surajben, brothers Sirilbhai, Martinbhai and sister Lavinyaben are legal heirs and representatives of Khodabhai Surabhai 3.2 After death of Khodabhai Surabhai, behind the back of complainant, her mother, brother Sirilbhai and sister Lavinyaben, brother Martinbhai has got mutated his name only in the revenue records of the disputed property.
3.3 Thereafter, said Martinbhai and others have executed irrevocable power of attorney on 30.12.2004 in favour of original accused Nos.11 and 12, who in turn, on the basis of said power of attorney, executed sale deed in favour of original accused Nos.11 and 13 (present petitioners) on 13.5.2010.
3.4 Hence, present petition.
4. Learned advocate for the petitioner, referring to the judgment and order passed by the coordinate bench of the court in Criminal Misc. Application No. 9032 of 2016 (Annexure B) would submit that the other accused, who are Page 2 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025 NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined identically placed, the FIR against whom has already been quashed and the said order has not been challenged before the higher forum. He would further submit that the reasons ascribed by the coordinate bench of this court in the aforestated Criminal Misc. Application is equally applied to the facts of the present case. He would further submit that petitioner Ms. Priyanka Agrawal is a co-purchaser of the disputed property, whereas the petitioners of Criminal Misc.
Application No.10796 of 2019 and the persons who have executed the power of attorney for selling of the disputed land in favour of Dipakbhai Patel, the FIR against whom has already been quashed. He would further submit that according to the FIR, the complainant is a daughter of Khodhai Surabhai, who is one of the co-sharers in the disputed property However, her name was not mutated in the revenue record being legal heir of Khodhai Surabai coupled with the interest that the power of attorney has been executed by the rest of the co-sharers and family members, and based upon such power of attorney, sale deed was executed. He would further submit that the dispute regarding the disputed property can be said to be a dispute between the family members, however, it does not attract the offence punishable under sections 406 and 420 of the IPC, as there is no criminal breach of trust or cheating as defined in sections 405 and 415 of the IPC. He would further submit that the impugned FIR has been filed with an oblique motive to pressurize the purchaser to come to settlement under table and the therefore, essentially a civil dispute is given colour of criminality. He would further submit that the coordinate Page 3 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025 NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined bench of this court has also observed said aspect and quashed the FIR.
4.1 Upon such submissions, learned advocate Mr. Kapadia requests to allow these petitions.
5. Per contra, learned advocate Mr. KH Baxi, while fairly conceding the case of Ms. Priyanka Agrawal - petitioner of Criminal Misc. Application No.10792 of 2019 that she is a purchaser and she has nothing to do with the transaction and disputing the role of the petitioner of Criminal Misc. Application No.10796 of 2019 would submit that those are the persons who have left the right and share of the complainant from the disputed property and sold the property to some third party. He would further submit that these petitioners are knowing fully well that deceased Khodabhai Surabhai had been survived by the complainant, her mother and Martin bhai, but for the reasons based known to them, they have chosen to mutate the name of Martinbhai only on death of Kodabai Surabai and leaving behind the name of the complainant and her mother from being mutated in the revenue record of the disputed property. He would further submit that the complainant has filed Regular Civil Suit No.161 of 2008 and pending the suit, an application under Order 39 Rule 1 and 2 of the CPC for injunction was also filed. The said application has been granted by the learned civil Court and restrained the other side from changing the hands of the disputed property. He would further submit that the order passed by the learned civil court at inter locutory stage Page 4 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025 NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined has not been challenged before the higher forum. He would further submit that in the civil suit, the defendants have filed an application under Order 7 Rule 11 of the CPC to reject the plant, but they remained unsuccessful up till the Hon'ble Apex Court. In view of above, learned advocate, Mr. Baxi would submit that prima facie, the FIR against the petitioners of Criminal Misc. Application No.10796 of 2019 survives and therefore the petition deserves to be dismissed.
5.1 Upon such submissions, learned advocate Mr. Baxi requests to dismiss the petitions.
6. Learned APP, adopting the arguments of learned advocate Mr. Baxi, requests to pass necessary orders.
7. I have paid anxious thoughts to the rival submissions and also considered the documents placed on record.
8. It is undisputed that the person in whose favour the power of attorney has been executed and the purchaser that is petitioner of Criminal Misc. Application No.9032 of 2016 (Annexure B), the coordinate bench of this court vide order dated 1st March, 2019 quashed the FIR against the persons, in whose favour, the power of attorney has been executed and also in favour of purchaser of the disputed property. The factual aspects have been narrated by the coordinate bench as under:-
"3.1 The complainant is having share in the property Page 5 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025 NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined and despite the same, other owners of the property have executed irrevocable notarized power of attorney dated 30.12.2004 in favour of the applicant nos.1 and 2, who, on the basis of the said power of attorney, executed a sale deed in favour of the applicant no.1 and accused no.13 dated 13.05.2010.
3.2 The notarized power of attorney dated 30.12.2004 was executed in favour of the applicant nos.1 and 2. The said power was given coupled with the interest. The said power was executed by the owners of the property.
3.3 Pursuant complainant has sale-deed was to the said power, executed on 13.05.2010. After the power of attorney was executed, the possession of the property was also handed over and the consideration was also accepted. It is also required to be noted at this stage that the a deliberately suppressed the material and vital fact regarding the family understanding executed between the complainant and other family members and by virtue of the said family partition, the complainant had relinquished her right, title and interest over the land in question. It is also required to be noted at this stage that Regular Civil Suit No.161 of 2008 was instituted by the complainant before the Principal Senior Civil Judge, Ahmedabad and the same is pending.
3.4 It appears that somewhere in the year 2012, the grievance was made by the complainant before the police as well as SIT and in which also, it was found that the applicants have not committed any offence. The detail report was also submitted by the police to the Collector and SIT.
3.5 Despite the were applications inquiry reports, aforesaid the complainant, filed by the and therefore, on 14.11.2015, the Head Constable, SIT was approached by the applicant no.1 and the statement was also given.
3.6 It is the case of the applicant that despite all the Page 6 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025 NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined referred above reports the by competent authority, again on 24.02.2016, the impugned FIR is registered with Aslali Police Station."
9. After narrating the aforesaid facts and considering the arguments of learned advocates for both the sides including learned APP, the coordinate bench of this court ascribed the reason for allowing the petition in para 7, 7.1 and 8, which reads as under:-
"7. It is not in dispute that the complainant has not alleged that the power of attorney executed in favour of the present applicants is forged and the same has been obtained by fraud. There are 10 legal heirs, who have executed the power of attorney in favour of the present applicants on 30.12.2004. At the relevant time, it is the say of the complainant that legal heir Sunil Martin is left out and his share has been illegally sold out. The complainant has raised any grievance for almost 12 years. She has not raised grievance against the other legal heirs, who are the signatories of the power of attorney. It is also pertinent to note that the complainant has also instituted a Regular Civil Suit No.161 of 2008, which is still pending. It is a matter of concern that the complainant has chosen to file the impugned F.I.R. in the year 2016 and hence, it can be safely presumed that the same is filed with an oblique motive in order to compel the present applicants to enter into settlement.
7.1 It is also not in dispute that the land in question was sold on 13.05.2010 and still the complainant did not think it fit to file any criminal complaint and the same has been lodged only after when the civil suit has been instituted. It would be apposite to refer to the decision of this Court in the case of Arvindbhai Maganlal Master & Anr. Vs. State of Gujarat & Anr., 2015(1) G.L.H. 149. In the said case, it is observed thus:-Page 7 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025
NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined "27. Every act of breach of trust may not be resulted 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 Hart Prasad Chamaria v. B.K. Surekha and others, reported in 1973(2) SCC 823 as under :
We have heard Mr. Maheshwarit on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 Indian Penal Code. 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 riot disclose the commission of any offence on the part of the respondents under Section 420 Indian Penal Code. There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35.000/- There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35.000/ by deceiving him. It is further not the case of the appellant that a representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability on the respondents for the offence of cheating.
28. To put it in other words, the case of cheating the dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, the person who comes Page 8 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025 NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined into possession of the movable property 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 or not. Whether the retention with dishonest intention involves criminal breach of trust or only a civil liability would depend upon the facts of each case.
29. The distinction between mere breach of contract and the offence of criminal breach of trust and cheating are fine one. In case of cheating, it depends upon the intention of the accused at the time of inducement, which may be judged by a subsequent conduct but for this the subsequent conduct is not the sole test but mere breach of contract which 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 his 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 after 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. But the offence of breach of trust and cheating involve dishonest intention but they are mutually the offence, exclusive i.e. There is a and different in basic concept. distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of entrustment. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach the offender is lawfully entrusted with the of trust, and he dishonestly misappropriated property in case the same. of cheating, the offender practices Whereas, Page 9 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025 NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined fraudulent or dishonest to induce with another person to deliver the property. In such situation, both the offences cannot co-exist simultaneously.
41. The delay in lodging the First Information Report also assumes significance in the facts of the present case. At the cost of repetition, I may state that the injunction application Exh.5 was rejected way back in the year 2011. Whereas, the First Information Report came to be lodged in the year 2014.
42. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710).
43. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given coloured version of events. In such cases, the court should carefully examine the facts before it for the reason that frustrated litigant who failed to succeed before civil court may initiate criminal proceedings just to harass the other side with a malafide intention or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon Page 10 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025 NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because esh the other of a private and personal grudge and to enmesh party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide: Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710)"
8. In the present case, there is a delay in lodging the FIR and there is no plausible explanation given by the complainant. The dispute involved in the present application is also a subject matter of civil suit. Thus, it appears that the civil proceedings are given the cloak of criminal proceedings and the impugned FIR lodged by the respondent no.2 is a blatant misuse of process of law and is filed with a sole object of entailing the applicants in the criminal proceedings in order to settle the civil suit.
9. Under the the present writ circumstances, application is allowed. The impugned F.I.R. being C.R.No.1-26 of 2016 registered with Aslali Police Station, Dist. Ahmedabad for the offences punishable under Sections 406, 420 and 114 of the IPC and other consequential proceedings arising out of the impugned FIR are hereby quashed and set aside. The present application stands disposed of, accordingly. Rule is made absolute. Direct service is permitted."
10. By crystal clear verdict, the coordinate bench of this court believed that it is a civil proceeding, which has been given clock of criminal proceeding and the impugned FIR lodged by the respondent No.2 is a blatant misuse of process of law and is filed with a sole object of entailing the applicants in criminal proceedings.
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11. It is also recorded by the coordinate bench that Regular Civil Suit No.161 of 2008 has been filed and is still pending. This finding is confirmed by argument of learned advocate Mr. Baxi appearing for the private respondent. The coordinate bench has also recorded his concern that the complainant has chosen to file impugned FIR in the year 2016 after a gross delay without having proper explanation. The coordinate bench has also presumed that filing of FIR after eight years of filing of the civil suit is nothing but an oblique motive to pressurize the petitioners to enter into the settlement. The reasons stated by the coordinate bench is equally applied in the present matter. Ms. Priyanka Agrawal - petitioner of Criminal Misc. Application No.10792 of 2019 is the co- purchaser and she has nothing to do with the transaction. The persons in whose favour the power of Antony was executed mainly DipaK Patel, the FIR against whom is already quashed on the very same ground. Now the petitioners of Criminal Misc. Application No.10796 or 2019 are standing on the same footings. It is the averment of learned advocate Mr. Baxi that with an oblique motive and with the purpose of cheating the complainant, on death of father of the complainant, the correct information of the legal heirs were not supplied to the revenue authorities, and thereby the name of the present complainant was left to be mutated. The revenue authority has mutated the name of Mr. Martinbhai only being legal heir of Kodhai Surabai, and not the name of the complainant and his mother. At the most, this could be false statement on oath or affirmation to public servant as defined under section 181 of the IPC or maybe a false information with intent to cause Page 12 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025 NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined public servant to use his lawful power to the injury of another person as defined in section 182 of the IPC. The suit is already filed by the respond NO.2 and interim relief is operating in favour of the respond No.2 Therefore, the share and right of the respond No.2 - complainant shall be taken care of in the civil proceedings, but the inter se dispute between the parties essentially found to be of civil nature cannot be given colour of criminality by filing impugned FIR. Even remotely, on plain reading of the FIR, the offences of cheating or criminal breach of trust are not attracted against the petitioners. In view of above, continuation of present FIR against the petitioners would be abuse of process of law. The reasons ascribed by the coordinate bench of this court in Criminal Misc. Application No.9032 of 2016 equally applies to the case of the present petitioners.
12. In the case of State of Haryana Vs. B.Bhajanlal & ors., AIR 1992 SC 604, the Hon'ble Apex Court summed up the proposition of law, which reads as under:-
"(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations ins the F.I.R. and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the code.
(3) Where, the uncontroverted allegations made in the Page 13 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025 NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined F.I.R. or complaint and the evidence collected in support of the same donot disclose the commission of any offence and make out the case against the accused.
(4) Where, the allegations in the F.I.R. 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 S.155(2) of the Code.
(5) Whether, the allegations made in the F.I.R. 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 bare engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) toi the institution and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide 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."
12.1 The findings of the Hon'ble Apex Court in para 1,3 and 7 are attracted in the present case. In view of above, present petition deserves consideration.
13. In the result, present petitions are allowed. Impugned FIR being C.R.No.I - 26 of 2016 registered with Aslali Police Station, for the offences punishable under Sections 406, 420, 114 of the IPC as well as all other consequential proceedings arising out of the aforesaid FIR including charge sheet qua Page 14 of 15 Uploaded by SHEKHAR P. BARVE(HC00200) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 11:34:26 IST 2025 NEUTRAL CITATION R/CR.MA/10792/2019 ORDER DATED: 09/10/2025 undefined the petitioners herein are hereby quashed and set aside. Rule made absolute to the aforesaid extent. Direct service is permitted.
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