Bombay High Court

Sanjay S/O Rajendraprasad ... vs The State Of Maharashtra And Anr on 31 March, 2017

Bench: S.S. Shinde

                                                                   cwp170.17
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


              CRIMINAL WRIT PETITION NO.170 OF 2017


 Mr. Sanjay Shrivastava,
 Son of Rajendraprasad,
 Age-48 years, Occu:Service,
 Married, Indian National,
 Resident of F-6, Sunshine Apartment,
 Shantinagar, Navelim, Margao,
 Goa 403 707
                                 ...PETITIONER 
        VERSUS             

 1) The State of Maharashtra,
    Through Police Station,
    MIDC, CIDCO, Aurangabad,
    Tq. & Dist-Aurangabad,

 2) Mr. Raju Lalchand Mankani,
    Age-Major, Business,
    R/o-Plot No.P-57,
    Opposite United Spirit Bisslery,
    MIDC, Chikalthana, Aurangabad.   
                                 ...RESPONDENTS

                      ...
    Mr.Amol K. Gawali Advocate for Petitioner.
    Mr.P.G. Borade, A.P.P. for Respondent No.1.
    Mr.R.P. Mote Advocate for Respondent No.2. 
                      ...

        WITH




::: Uploaded on - 31/03/2017                  ::: Downloaded on - 01/04/2017 01:07:19 :::
                                                         cwp170.17
                               2


        CRIMINAL WRIT PETITION NO.101 OF 2017


 Ashok Lal s/o Gurubaksh Lal
 Proprietor Planet Hospitality,
 Age-56 years, Occu:Business,
 R/o-Dhiraj-Ganga, B-702,
 Chincholi Bandar Road,
 Malad (West), Mumbai.
                                 ...PETITIONER 
        VERSUS             

 1) The State of Maharashtra,
    Through Police Inspector,
    MIDC CIDCO Plice Station,
    Tq. & Dist-Aurangabad,

 2) Mr. Raju P. Lalchand Mankani,
    Age-Major, Occu:Business,
    R/o-Sindhi Colony, MIDC,
    CIDCO, Aurangabad.   
                                 ...RESPONDENTS

                      ...
    Mrs. R.S. Kulkarni Advocate h/f. Mr. Sanket
    S. Kulkarni Advocate for Petitioner.
    Mr. P.G. Borade, A.P.P. for Respondent No.1.
    Mr. R.P. Mote Advocate for Respondent No.2. 
                      ...


               CORAM:   S.S. SHINDE AND
                        K.K. SONAWANE, JJ.

DATE OF RESERVING JUDGMENT : 21ST MARCH, 2017

DATE OF PRONOUNCING JUDGMENT: 31ST MARCH, 2017

cwp170.17

JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. Both these Writ Petitions are filed

praying therein for quashing the First Information

Report bearing Crime No.425 of 2016 registered

with the M.I.D.C., CIDCO Police Station,

Aurangabad, for the offences punishable under

Sections 420, 406 read with 34 of the Indian Penal

Code, dated 5th November 2016, therefore same are

heard together and being disposed of by the common

Judgment and Order.

3. Learned counsel appearing for the

Petitioner in Criminal Writ Petition No.170 of

2017 submits that, even if the allegations in the

First Information Report (for short "FIR") are

taken at its face value and read in its entirety,

cwp170.17

an ingredients of alleged offences have not been

attracted. He submits that the allegations in the

FIR reflects the issue of civil nature. It is

further submitted that the transaction is a

contractual issue, and in fact there is no privity

of contract between the Petitioner - Sanjay

Srivastava and Respondent No.2. The basic elements

and ingredients of Section 420 and/or Section 406

of the I.P. Code are not made out by Respondent

No.2 against the Petitioner - Sanjay Srivastava.

The offence is registered against the Petitioner -

Sanjay Srivastava to avoid the further payment of

Rs.75,000/- as per agreement dated 4th March 2016.

The dispute between the parties is of civil nature

and the FIR is filed with ulterior motive to get

back the non refundable amount by pressurizing the

Petitioner by filing criminal complaint, which is

contrary to the terms and conditions of the

agreement dated 4th March 2016. It is further

submitted that a civil lis is being criminalized

by Respondent No.2 by misusing the powers and

cwp170.17

authority vested under law. A false case and

investigation has been commenced against the

company and the Petitioner at the instance of said

Mr. Raju Lalchand Mankani (Respondent No.2) who

wants to illegally extort money from KHR

Hospitality India Limited which he is not entitled

to. It is submitted that this is an attempt to

pressurize the Petitioner and company into

refunding the amount of Rs.4,25,000/- from the

company and impede the process of recovery of

Rs.75,000/-. It is submitted that Respondent No.2

- Raju Lalchand Mankani in an attempt to mislead

the police and create undue pressure on the

company, has filed the said false complaint/FIR.

The FIR is lodged at police station at Aurangabad,

which has no jurisdiction to investigate the FIR.

4. Learned counsel appearing for the

Petitioner in Criminal Writ Petition No.170 of

2017 further submits that the informant, in order

to prove offence of cheating, is required to show

cwp170.17

that the accused had fraudulent or dishonest

intention at the time of making promise or

representation. In support of aforesaid

contention, the learned counsel placed reliance on

the ratio laid down by the Supreme Court in the

case of V.Y. Jose and another vs. State of Gujarat

and another1 and also in the case of Dalip Kaur and

others vs. Jagnar Singh and another 2. He further

pressed into service exposition of law by the

Supreme Court in the case of G. Sagar Suri and

another vs. State of U.P. and others 3 and submits

that jurisdiction under Section 482 of the Code of

Criminal Procedure has to be exercised to prevent

abuse of the process of any Court or otherwise to

secure the ends of justice. Therefore, the learned

counsel appearing for the Petitioner - Sanjay

Srivastava, relying upon the pleadings in the

Petition, grounds taken therein, annexures thereto

and the Judgments referred herein above, submits

1 (2009) 3 S.C.C. 78 2 A.I.R. 2009 S.C. 3191 3 (2000) 2 S.C.C. 636

cwp170.17

that the Petition deserves to be allowed.

5. Learned counsel appearing for the

Petitioner in Criminal Writ Petition No.101 of

2017 - Ashok Lal s/o Gurubaksh Lal, in addition to

arguments advanced by the learned counsel

appearing for the Petitioner in Criminal Writ

Petition No.170 of 2017, submits that the

Petitioner - Ashok Lal was a mere agent acting on

behalf of Respondent No.2 and hence he cannot be

held liable for the offences punishable under

Section 406 and 420 of the I.P. Code. The case is

of a civil nature and there is no criminal

intention mentioned in the FIR. The Petitioner has

already deposited the entire amount with the Hotel

and hence there is no entrustment of property with

the Petitioner. The police station at Aurangabad

has no jurisdiction to register the FIR and cause

the investigation, since no cause of action has

arisen at Aurangabad. It is further submitted that

Respondent No.2 was always in receipt of the terms

cwp170.17

of the agreement right from the beginning. The

Petitioner has merely signed the contract acting

as an agent of the informant/ Respondent No.2 and

this fact has been acknowledged by the informant

in several communications made to the Hotel as

well as to the Petitioner and hence the Petitioner

cannot be prosecuted under Section 420 of the I.P.

Code.

6. Learned counsel appearing for the

Petitioner in Criminal Writ Petition No.101 of

2017, further submitted that the informant on his

own volition decided the dates for the wedding.

The said aspect is clear from the receipt dated

3rd February 2016 issued by the Hotel to the

informant when the informant had personally

visited the Hotel. Even otherwise after the

request of the informant to delete the date of

16th April 2016 from the bookings, the Petitioner

as an agent, immediately communicated the same to

the Hotel and the Hotel also agreed to the same.

cwp170.17

Thus, the allegations that the dates of the

booking were changed by the Petitioner on his own,

is false and baseless and does not hold any ground

since the revise contract and the tax invoice

generated by the Petitioner mentions the period

from 17th April 2016 to 19th April 2016.

7. Learned counsel appearing for the

Petitioner in Criminal Writ Petition No.101 of

2017 further submitted that the Hotel had

generated two contracts and the terms were one and

the same in both the contract except for the

change of dates. The informant was in possession

of both the contracts. In fact, after going

through the first contract, the informant had made

the payment of Rs.75,000/- on 4th February 2016

and Rs.3,60,000/- on 11th February 2016 in

consonance with the terms of the contract. The

allegation of Respondent No.2 in the FIR that the

Petitioners have cheated Respondent No.2, is false

and baseless.

cwp170.17

8. Learned counsel appearing for the

Petitioner in Criminal Writ Petition No.101 of

2017 submitted that the Supreme Court, in a recent

Judgment in the case of International Advanced

Research Centre For Power Metallurgy And New

Materials (ARCI) and others vs. Nimra Cerglass

Technics Private Ltd.4 has held that the

distinction between mere breach of contract and

the cheating would depend upon the intention of

the accused at the time of alleged inducement. In

the instant case, there are two important aspects

which would have to be considered before an

offence of cheating and breach of contract is

arrayed against the Petitioner. The first aspect

is that the Petitioner was an agent of the

informant and hence the transaction entered into

by the Petitioner was at the behest of the

informant, thus the Petitioner cannot be

prosecuted for cheating and for breach of

4 (2016) 1 S.C.C. 348

cwp170.17

contract. The second aspect is that the Petitioner

has already transferred the entire amount to the

Hotel and thus the Petitioner is not in possession

of any property of Respondent No.2 informant. The

Petitioner had never made any representation to

Respondent No.2. If at all the mere breach of

contract can be considered as a fraudulent act

then the representation if any was made by the

Hotel to the Petitioner as well as Respondent No.2

informant. It is submitted that the Petitioner was

a mere facilitator for arranging Hotel

accommodation on commission basis for Respondent

No.2. The Petitioner neither has made any

fraudulent representation nor has assured nor has

convinced Respondent No.2 informant to part with

his money and hence the Petitioner cannot be held

liable for prosecution under Section 406 of the

I.P. Code.

9. Learned counsel appearing for the

Petitioner in Criminal Writ Petition No.101 of

cwp170.17

2017 further submitted that, to attract the

offence of criminal breach of trust, three

ingredients are necessary. First ingredient is

that a person should have dominion over the

property. The Second ingredient is that the person

should dishonestly misappropriate or convert the

property for his own use. The third ingredient is

that such a conversion, misappropriation should be

in violation of any direction of law prescribing

the mode in which such a trust is to be

discharged. All the three ingredients must be

satisfied and in the absence of any provisions of

Section 405 punishable under Section 406 of the

I.P. Code is not attracted. In the present case

the Petitioner could not have been said to have

any dominion over the property of Respondent No.2

informant. The FIR does not allege that any amount

was dishonestly misappropriated or converted by

the Petitioner for his own use. The FIR does not

show that there was any violation of any direction

of law and hence the offence of criminal breach of

cwp170.17

trust is not attracted in the case of the

Petitioner. In support of her submissions, learned

counsel placed reliance on the ratio laid down in

the case of Asoke Basak vs. State of Maharashtra

and others5. It is further submitted that the

essential ingredients for the offence of cheating

punishable under Section 420 of the I.P. Code is

the mens rea. The fraudulent intention has to be

present at the time of making of promise. This

aspect has to be spelt out in the FIR and cannot

be left to the scrims and conjectures of the

reader of the FIR. In the present matter, the FIR

does not show that the Petitioner had induced

Respondent No.2 to deliver any property. In fact

the bookings of the Hotel were made by the

informant personally on 3rd February 2016 and

further the entire amount which was deposited with

the Petitioner was transferred to the Hotel in

furtherance of the contract and hence the offence

of cheating cannot be made applicable against the

5 2010 ALL S.C.R. 2494

cwp170.17

Petitioner.

10. Learned counsel appearing for the

Petitioner submitted that the Supreme Court in the

case of S.N. Palnitkar vs. State of Bihar6 has held

that intention to deceive should be in existence

at the time when inducement was made. Mere failure

to keep up the promise subsequently cannot be

presumed leading to cheating. When the proceedings

are not maintainable for the want of satisfying

ingredients of the offences, the proceedings are

liable to be quashed under the inherent powers of

the High Court under Section 482 of the Code of

Criminal Procedure. Essentially the contract came

to be terminated by the Hotel only because

Respondent No.2/informant did not made the

requisite payments as per the contracted schedule.

Hence the criminal prosecution could not have been

initiated in the present case.

6 2001 A.I.R. S.C.W. 4435

cwp170.17

11. Learned counsel appearing for the

Petitioner submitted that there is an undue delay

in filing of the present FIR. Respondent No.2/

informant has himself stated that the time of

offence was 3rd February 2016 to 11th February

2016, whereas the FIR came to be registered with

Respondent No.1 only on 5th November 2016. It

shows that Respondent No.2/informant after due

deliberation, has registered the FIR merely to

coerce the Petitioner and the Hotel to refund his

amount so forfeited by the Hotel. It is submitted

that Respondent No.1 has no jurisdiction to

investigate into the present case as from the

recitals of the FIR itself, it can be seen that

the place of offence is at Goa and the

registration of the crime at Aurangabad is nothing

but an abuse of process of law and hence in the

interest of justice the FIR ought to be quashed

and set aside qua the Petitioner. Even as per

Section 177 of the Code of Criminal Procedure the

police at Aurangabad had no territorial

cwp170.17

jurisdiction to register the FIR, therefore filing

of the FIR itself is an abuse of process of law.

On a bare reading of the FIR, no offence is made

and even remotely at Aurangabad.

12. Therefore, the learned counsel appearing

for the Petitioner in Criminal Writ Petition

No.101 of 2017 relying upon the pleadings in the

Petition, grounds taken therein, annexures thereto

and the Judgments referred herein above, submits

that the Petition deserves to be allowed.

13. Learned A.P.P. appearing for the State,

relying upon the investigation papers, submits

that the ingredients of alleged offences have been

disclosed. The Police Station at Aurangabad has

jurisdiction to register the FIR and cause the

investigation since the informant is resident of

Aurangabad and he has sent the money from his bank

account at Aurangabad. He further submits that

there are specific allegations of cheating and

cwp170.17

breach of trust. At the time of considering the

prayer for quashing the FIR, this Court is not

expected to consider the correctness or falsity

of the allegations. It is submitted that upon

reading the contents of the FIR if the alleged

offences are disclosed, in that case the matter

should be left to the Investigating Officer for

further investigation. He submits that it is not

the law that in every civil matter criminality is

excluded. It is apparent from reading an

allegations in the FIR that the Petitioners had

intention to cheat the informant and they

persuaded him to immediately book the rooms in the

Hotel and also hurriedly asked him to deposit the

amount. Instead of asking to deposit the amount in

the account of the concerned Hotel, the

Petitioners persuaded the informant to deposit the

amount in the account maintained in the name of

Planet Hospitality by the Petitioner in Writ

Petition No.101 of 2017. He submits that though

Respondent No.2 instructed the Petitioners to book

cwp170.17

the rooms in the Hotel for the period from 17th

April, 2016 to 19th April, 2016, the Petitioners,

to the surprise of Respondent No.2, shown the

booking of the rooms for the period from 16th

April 2016 to 18th April 2016. The Petitioners had

intention to cheat Respondent No.2 and

fraudulently take away the amount deposited by

Respondent No.2. It is submitted that there was no

reason for the Petitioners to ask Respondent No.2

to deposit amount in their own bank account when

the amount ought to have been deposited in the

account of Hotel Kenilworth Resort and Spa.

Learned A.P.P. invites our attention to the

observations made by the Supreme Court in the case

of Bhaskar Lal Sharma and another vs. Monica and

others7, and submits that the facts, as alleged in

the FIR/complaint, will have to be taken as they

appear and will have to be proved, which can only

be done during the course of regular trial. The

appreciation, even in a summary manner of the

7 (2014) 3 S.C.C. 383

cwp170.17

averments made in a complaint/petition/FIR would

not be permissible at the stage of quashing and

the facts stated will have to be accepted as they

appear on the very face of it. Learned A.P.P.

further invites our attention to the Judgment of

the Supreme Court in the case of Chandralekha and

others vs. State of Rajasthan and another8, and

submits that, in the facts of that case the

Supreme Court held that, if the part of cause of

action accrued within the jurisdiction of the

concerned police station, since the offence is a

continuous one the FIR cannot be quashed on the

ground of jurisdiction or delay.

14. Learned counsel appearing for Respondent

No.2/ informant submits that the Petitioners

without placing on record full text of the FIR,

have placed on record only gist of the FIR, and

persuaded this Court to issue notice and also

obtained an ad-interim orders. He submits that the

8 (2013) 14 S.C.C. 374

cwp170.17

FIR runs in three pages. He invites our attention

to the contents of the FIR, copy of which is

placed on record with the affidavit in reply, and

submits that the Petitioners while filing the

Petitions have placed on record only gist of the

FIR and not the full text of the FIR. Therefore,

he submits that the Petitioners have not

approached this Court with clean hands and on that

count alone, both the Petitions deserve to be

rejected. He submits that the conduct of the

Petitioners dis-entitles them from invoking the

extra ordinary jurisdiction of this Court and to

seek appropriate relief.

15. Learned counsel appearing for Respondent

No.2 further submits that since beginning both the

Petitioners had intention to cheat and defraud

Respondent No.2. There was no reason for the

Petitioners to deposit the amount in the account

of proprietor of Planet Hospitality. In fact the

Petitioners should have asked Respondent No.2 to

cwp170.17

deposit the amount in the account of Hotel

Kenilworth Resort & Spa in which Respondent No.2

intended to book 95 rooms for three days. He

submits that in fact Respondent No.2 contacted

Petitioner - Ashok Lal (Petitioner in Criminal

Writ Petition No.101 of 2017). Petitioner - Ashok

Lal called Respondent No.2 at Mumbai on 2nd

February 2016 and informed that Hotel Kenilworth

Resort & Spa is a reputed Hotel and insisted

Respondent No.2 to proceed towards Goa on the same

day for further talks with Hotel Management. On

2nd February 2016, Respondent No.2, his son Ravi

Mankani and Petitioner - Ashok Lal had been to Goa

and visited Hotel Kenilworth Resort & Spa. On

reaching at Hotel Kenilworth Resort & Spa,

Petitioner - Ashok Lal had introduced Respondent

No.2 with other 2-3 persons as owners of the

Hotel but their names were not disclosed to

Respondent No.2. Respondent No.2 was instructed

to talk with Petitioner - Sanjay Srivastava

(Petitioner in Criminal Writ Petition No.170 of

cwp170.17

2017) in the capacity of Manager of Hotel. At that

time Respondent No.2 requested to hire the Hotel

for the pre and post marriage ceremony of his daughter

from 17th April 2016 to 19th April 2016 with 95

rooms for three days. Respondent No.2 was quoted

with charges of Rs.9500/- for per day for each

double room for which Respondent No.2 agreed and

all the accused were ready to provide early check-

in on 17th April 2016, at about 7.00 a.m. While

talking with Management of Hotel, Respondent No.2

requested to provide each room with triple

occupancy, for which accused claimed extra charges

of Rs.3000/- for extra bed, which was also agreed

by Respondent No.2. Petitioners and hotel owners

had agreed for early check-in at 7.00 a.m. but

denied to provide complimentary breakfast on 17th

April 2016 thereby quoting charges of Rs.615/-

against breakfast of per person, which was also

agreed by Respondent No.2. On insistence,

Respondent No.2 immediately deposited Rs.25000/-.

The receipt was issued in the name of KHR

cwp170.17

Hospitality. Respondent No.2 asked as to why the

Petitioners are issuing receipt in the name of KHR

Hospitality, upon which it was informed to

Respondent No.2 that it was technical difficulty

of the Bank. It is further submitted that when

Respondent No.2 reached at Aurangabad on 3rd

February 2016, Petitioners Ashok Lal and Sanjay

Srivastava started calling him and informed that

on or before 4th February 2016 he has to deposit

Rs.1,00000/- so that accommodation can be

confirmed. Respondent No.2 was asked to deposit

the said amount in the account of Planet

Hospitality. That time also Respondent No.2 asked

Petitioner Ashok Lal that when the Petitioners are

only agent/mediator, why they are asking him to

deposit the amount in their accounts. However the

Petitioners insisted to deposit the amount in the

account of Planet Hospitality. Accordingly,

Respondent No.2 deposited Rs.75,000/- in the

account of Planet Hospitality on 4th February

2016, from Aurangabad. Learned counsel invites our

cwp170.17

attention to the affidavit in reply filed by

Respondent No.2 and submits that details in

respect of total amount deposited by Respondent

No.2, are given in Para 4 of the reply. The

learned counsel submits that total amount of

Rs.4,60,000/- was deposited from the account of

Respondent No.2 maintained in the banks at

Aurangabad. It is further submitted that after

depositing total amount of Rs.4,60,000/- for Hotel

Kenilworth Resort & Spa, Petitioners sent E-mail/

soft copy of agreement to Respondent No.2, to be

executed between Hotel Kenilworth Resort & Spa and

Respondent No.2. Respondent No.2 was surprised and

shocked to read the agreement wherein it was

mentioned that rooms will be given from 16th April

2016 to 18th April 2016 and not on agreed dates of

17th April 2016 to 19th April 2016. There were

changes in the Check-in time and providing triple

occupancy rooms as agreed on 2nd February 2016. He

further submits that though it was agreed and as a

matter of fact amount was paid for 95 rooms and 95

cwp170.17

extra beds, instead of that it was mentioned in

the agreement that Petitioner will provide only 25

beds. Agreement was executed fraudulently by the

Petitioners on behalf of Respondent No.2 without

his prior permission as well as his consent. When

Respondent No.2 realized that Petitioners have

fraudulently and with an intention to cheat

Respondent No.2 have entered into an agreement

with the Hotel by changing the dates and also the

number of beds and check-in time, Respondent No.2

asked the Petitioners to cancel such booking in

view of the changes made by the Petitioners in the

agreement entered with the said Hotel on behalf of

Respondent No.2 without his consent and knowledge.

16. The learned counsel appearing for

Respondent No.2 further submits that investigation

papers and the documents placed on record by

Respondent No.2 would clearly indicate that the

Petitioners had dishonest and fraudulent intention

since from the inception so as to cheat Respondent

cwp170.17

No.2. Though Respondent No.2 has deposited an

amount of Rs.4,60000/-, instead of refunding the

said amount the Petitioners are asking for further

amount of Rs.75,000/-. It is submitted that the

allegations in the FIR will have to be taken in

its entirety and it is only during trial those

allegations can be tested. The Investigating

Officer has collected sufficient material during

the course of investigation and therefore the

filing of charge-sheet and trial is must. He

submits that this is not the case of simple

agreement or contract. Respondent No.2 wanted the

rooms in the Hotel for the invited guests for

marriage ceremony of his daughter and the Petitioners

by entering into an agreement on behalf of

Respondent No.2 without his consent, and with an

intention to cheat and defraud the amount

deposited by him, have changed the dates and

number of beds and check-in time. Therefore, the

learned counsel appearing for Respondent No.2

submits that both the Petitions are devoid of any

cwp170.17

merit and hence the same may be rejected.

17. We have heard learned counsel appearing

for the Petitioners, learned A.P.P. appearing for

the State and learned counsel appearing for

Respondent No.2 at length, with their able

assistance we have carefully perused the pleadings

and grounds taken in both the Petitions, annexures

thereto, more particularly the contents of the

FIR, reply filed by Respondent No.2, Judgments

cited across the Bar and investigation papers made

available by the learned A.P.P.

18. The Petitioners in both the Petitions,

have placed on record copy of the First

Information Report, which does not contain full

text of the First Information Report and an actual

contents of the FIR are less than one page. Upon

perusal of the copy of the First Information

Report from the investigation papers and also copy

annexed with the reply filed by Respondent No.2,

cwp170.17

we find that the actual contents of the First

Information Report runs into three pages. Learned

counsel appearing for the Petitioner in Writ

Petition No.101 of 2017 vehemently submitted that

the certified copy of the FIR was applied and

therefore the copy which is received from the

Police Station, is placed on record of the

Petition. We do not wish to enter into said

controversy. However, the fact remains that the

actual contents of the FIR contains three pages

and along with the Petitions the full text of the

FIR is not placed on record by the Petitioners.

Without attributing any fault on the part of the

learned Advocates appearing for the Petitioners,

we are constrained to observe that the Petitioners

have not approached this Court with clean hands

thereby placing on record full text of the FIR.

19. Be that as it may, we have carefully

perused the allegations in the FIR. The gist of

the FIR, which would attract the provisions of

cwp170.17

Section 406 and 420 of the I.P. Code, is as under:

" vkjksih 1 v'kksdyky ts IyWusV gkWfLiVWyhVh laLFkspk ekyd 2 gkWVsy dsuhy oFkZ fjlkWVZ o Likpk pkyd lat; JhokLro xksok LVsV iq.kZ uko rk- osG ekghr ukgh xq-?k-o fBdk.k [email protected]@2016 rs [email protected]@2016 ps njE;ku xksok LVsV o vkSjaxkckn Qlo.kqdhph jDde 4]60][email protected]& :- [kqyklk ueqn rk osGh o fBdk.kh ;krhy fQ;kZnhps eqyhps fn- [email protected]@2016 jksthps yXuklkBh [email protected]@2016 rs [email protected]@2016 rhu fnolklkBh ;krhy vkjksih dz-1 ps ekQZrhus Lohdk:u dsuhy oFkZ fjlkWVZ vkf.k Lik xksok gh izR;{k 95 Vªhiy vkWD;qiUlh cqdhax dsyh vlrk BjysY;k rkj[ksP;k ,soth vkjksih dz-1 ;kauh [email protected]@2016 rs [email protected]@2016 v'kh ijLij cqfdax nk[koqu vkjksih dz-2 o brj vkjksihrkauh 95 Vªhiy vkWD;qiUlh ns.;kps ukdk:u fQ;kZnhdMwu osxosxG;k cWadsP;k [kkR;koj dz-1 ;kps ekQZrhus tek d:u ?ksoqu fQ;kZnhus cqfdax jnn dsY;k uarj fnysY;k iS';kph ekx.kh dsyh vlrk rh ijr dj.;kl ukd:u] vU;k;kus fo'okl?kkr d:u fQ;kZnhph Qlo.kqd d:u jDde gMi dsyh Eg.kqu xqUgk nk[ky d:u ek-iks-fu-lks- ;kaps vkns'kkus iksmifu flrkjke dsnkjs ;kauk iq<hy rikldkeh fnys- "

20. We also find considerable force in the

argument of the learned counsel appearing for

Respondent No.2 that, when Respondent No.2 made

his intentions clear to book 95 rooms with triple

occupancy with extra beds in Kenilworth Resort &

Spa Hotel for the period from 17th April 2017 to

19th April 2017, the Petitioners should have asked

cwp170.17

Respondent No.2 to deposit the amount directly in

the account of Kenilworth Resort & Spa Hotel

itself, instead of asking him to deposit the

amount in the account of Planet Hospitality. The

manner in which the Petitioners proceeded from

beginning and also subsequently entered into an

agreement with Kenilworth Resort & Spa Hotel on

behalf of Respondent No.2 without his consent with

fraudulent intention as stated in the FIR,

discloses the ingredients of the alleged offences

and in particular Section 420 of the I.P. Code. It

is admitted position that the entire amount was

deposited by Respondent No.2 in the account of

Planet Hospitality of which Petitioner Ashok Lal

s/o Gurubaksh Lal is proprietor. This is not an

agreement or contract for the commercial purpose,

but Respondent No.2 wanted accommodation in the

Hotel for guests who will be arriving for marriage

ceremony of his daughter. There is an allegation

in the FIR that though Respondent No.2

instructed/told the Petitioners to book the rooms

cwp170.17

in the Hotel for the period from 17th April 2016

to 19th April 2016 with specific instructions that

check-in time will be at 7.00 a.m. on 17th April,

2016, behind the back of Respondent No.2, the

Petitioners entered into agreement with Kenilworth

Resort & Spa Hotel and changed the dates to 16th

April 2016 to 18th April 2016 and also the check-

in time at 3.00 p.m. on 16th April, 2016, and

number of rooms and extra beds. Therefore, upon

careful reading of an allegations in the FIR, an

ingredients of alleged offences have been

attracted and alleged offences have been

disclosed.

21. Upon careful perusal of the investigation

papers, we noticed that an earlier E-mail received

by Respondent No.2 from the proprietor of Planet

Hospitality also confirms the fact that Respondent

No.2 booked 95 rooms for the period from 17th

April 2016 till 19th April 2016 and also

additional 5 rooms, subject to availability and

cwp170.17

Respondent No.2 deposited the said amount in the

bank account of Planet Hospitality. Further, it is

apparent from the information collected by the

Investigating Officer during the course of an

investigation that, Respondent No.2 instructed the

Petitioners to book 95 rooms of the said Hotel

for the period from 17th April 2016 till 19th

April 2016 and amount was also deposited.

22. As already observed, the fact that the

amount was entrusted with Ashok Lal s/o Gurubaksh

Lal, Petitioner in Writ Petition No.101 of 2016,

is not in dispute. As per the allegations in the

First Information Report, prima facie it appears

that the Petitioners had intentions since from the

inception to cheat Respondent No.2 and in

collusion with each other they systematically

cheated Respondent No.2 and defrauded the amount.

It is not necessary for us to elaborate the

reasons, since the investigation is in progress,

suffice it to say, that the alleged offences are

cwp170.17

disclosed and needs further investigation and

filing of charge-sheet.

23. The Supreme Court in the case of Bhaskar

Lal Sharma and another vs. Monica and others,

supra, in Para 11 and 12 held that:

"11. The facts, as alleged, therefore will have to be proved which can only be done in the course of a regular trial. It is wholly unnecessary for us to embark upon a discourse as regards the scope and ambit of the Court's power to quash a criminal proceeding. The appreciation, even in a summary manner, of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. This is the core test that has to be applied before summoning the accused. Once the aforesaid stage is overcome, the facts alleged have to be proved by the complainant/prosecution on the basis of legal evidence in order to establish the penal liability of the person charged with

cwp170.17

the offence.

12. Insofar as the offence under Section 406 of the Penal Code is concerned, it is clear from the averments made in Paras 16, 18, 24 and 29 of the complaint petition that it has been alleged that the appellants were entrusted or had exercised dominion over the property belonging to the respondent and further that the appellants had unlawfully retained the same. The statements made in Para 6 of the complaint also alleges retention of cash and other gifts received by the respondent complainant at the time of her marriage to the Appellant 2 - accused. In the face of the said averments made in the complaint petition, it cannot be said that the complaint filed by the respondent is shorn of the necessary allegations to prima facie sustain the case of commission of the offence under Section 406 by the appellants."

24. In the Case of Chandralekha and others

vs. State of Rajasthan and another, supra, the

Supreme Court has held that, if the part of cause

of action accrued within the jurisdiction of the

cwp170.17

concerned police station, since the offence is a

continuous one, the FIR cannot be quashed on the

ground of jurisdiction or delay. In the present

case, as already observed, the amount deposited

by Respondent No.2 in the bank account of Planet

Hospitality was from Aurangabad. Respondent No.2

is resident of Aurangabad.