Bombay High Court
Apeksha D/O Prakashrao Bangare And ... vs State Of Mah. Thr. Pso Ps Hudkeshwar ... on 25 November, 2025
2025:BHC-NAG:12868-DB
J-APL 83-2021.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL)NO.83 OF 2021
1. Apeksha D/o Prakashrao Bangare
Aged about 27 years,
Occupation:-Service,
R/o. C/o. Hansdas Rangari,
Near Pachnal Sq. Rambag, Ajni,
Nagpur.
2. Rupali W/o Dhiraj Bangare
Aged about 31 years, Occ:-NIL,
R/o. C/o. Hansdas Rangari,
Near Pachnal Sq. Rambag, Ajni,
Nagpur
Currently residing at C/o.Sanjay
Maske, Plot No.488, near 50
Quarters, Jabalpur.
... APPLICANTS
...VERSUS...
1. State of Maharashtra,
Through its Police Station Officer,
Police Station Hudkeshwar,
District: Nagpur.
2. Ramkrishna Lahanuji Shete
Aged about 64 Years, Occ-Retired,
R/o. Ghate Layout, Behind
Mendhekar Hospital, Hudkeshwar,
Nagpur.
...NON-APPLICANTS
---------------------------------------------------------------------------------------------
Shri A.M. Sharma, Advocate for applicant
Ms S.Z. Haidar, APP for non-applicant No.1/State
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J-APL 83-2021.odt 2/8
CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 11.11.2025
PRONOUNCED ON : 25.11.2025
JUDGMENT (PER : NANDESH S. DESHPANDE, J.)
Heard. Admit. Heard finally with the consent of learned
Counsel for both the parties.
2. This is an application filed under Section 482 of the Criminal
Procedure Code, seeking quashing and setting aside the First
Information Report No. 0096/2020, registered with non-applicant
No.1, Police Station Hudkeshwar, Nagpur, on 15.03.2020, against
the present applicants, amongst others, for the offences punishable
under Sections 406 and 420, read with Section 34 of the Indian
Penal Code.
3. As per the report lodged by the non-applicant No.2, with the
non-applicant No.1, the accused No.1 in the present matter, namely
Dhiraj Bangare, has taken a shop No. 6, at Rupesh complex,
belonging to the non-applicant No.2 on rent, and Rs.3,500/- was
the rent which was decided to be paid by the main accused. The
said accused, namely Dhiraj, has opened a jewellery shop in the
said rented premises. According to the non-applicant No.2, the said
Dhiraj was ready to pay Rs.50,000/- as a deposit, but has not given
the said amount instead, he told the non-applicant No.2 that he will
pay Rs.50,000/- along with interest and will also pay Rs.4500/- as
monthly rent instead of Rs.3,500/-. It is the case of the non-
applicant No. 2, in the First Information Report, that said Dhiraj has
not paid the money as agreed between the non-applicant No.2 and
him, instead demanded an amount of Rs.5,00,000/- for investment
in the shop. It is further alleged in the First Information Report that
the non-applicant No.2 on 31.10.2017 gave the said amount by way
of cheque. It is further stated in the First Information Report that
the main accused Dhiraj also agreed to sell his plot to the non-
applicant No.2 for Rs.10,00,000/-, as the non-applicant No.2 has
already paid Rs.5,00,000/- to him. Thereafter, certain monetory
transactions also ensued between the non-applicant No.2 and
Dhiraj. However, the amount remained to be unpaid. This prompted
the non-applicant No.2 to lodge the First Information Report in
question, which is challenged in the present application.
4. We have heard Shri Ayush Sharma, learned Counsel for the
applicants, and Ms S.Z. Haidar, learned Additional Public Prosecutor
for the non-applicant No.1/State.
5. None present for the non-applicant No.2 though served.
6. The learned Counsel for the applicants submits that even if
the allegations in the First Information Report are taken to be true,
no offence is made out as against the present applicants. While
taking us through the First Information Report in question, learned
Counsel for the applicants submits that the only allegation against
the present applicants is that the non-applicant No.2 demanded the
money, which he owed to Dhiraj, from them, and they assured him
of the said amount on behalf of Dhiraj. It is therefore, the
submission of the learned Counsel for the applicants that the
continuation of the proceedings qua the present applicants would
be an abuse of the process of the Court, and he therefore prays for
quashing of the First Information Report to the extent of the present
applicants.
7. Per contra, learned Additional Public Prosecutor, while
vehemently opposing the contentions canvassed by the learned
Counsel for the applicants and stated that the main accused has
also cheated other persons, and therefore, this would not be a fit
case to exercise jurisdiction under Section 482 of the Criminal
Procedure Code.
8. We have carefully perused the contents of the First
Information Report and the record of the matter. As can be seen
from the First Information Report in question, the offences alleged
are punishable under Sections 406 and 420 of the Indian Penal
Code. The Hon'ble Apex Court in the judgment of Delhi Race Club
(1940) Limited and others Vs. State of Uttar Pradesh and another,
(2024) 10 SC 690, has held under :
"41. 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.
42. 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,
43. There is a distinction between criminal breach of
trust and cheating. For cheating, criminal intention is
necessary at 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.
44. At the most, the Court of the Additional Chief
Judicial Magistrate could have issued process for the
offence punishable under Section 420 IPC i.e. cheating
but in any circumstances no case of criminal breach of
trust is made out. The reason being that indisputably
there is no entrustment of any property in the case at
hand. It is not even the case of the complainant that any
property was lawfully entrusted to the appellants and
that the same has been dishonestly misappropriated.
The case of the complainant is plain and simple. He says
that the price of the goods sold by him has not been
paid. Once there is a sale, Section 406 IPC goes out of
picture. According to the complainant, the invoices
raised by him were not cleared. No case worth the name
of cheating is also made out."
9. Thus, it can be seen that there is no entrustment of the
property, which is a sine qua non for committing an offence under
Section 406 of the Indian Penal Code. Thereafter, there is no
inducement as contemplated under Section 420 of the Indian Penal
Code, as far as the present applicants are concerned.
10. If the facts of the present case are appreciated in the light of
the dictum of the Hon'ble Supreme Court reproduced supra, the
role of the present applicants is only confined to the assurance on
behalf of the main accused. Nothing more has been attributed to
the present applicants in the First Information Report in question.
We are therefore of the considered view that the situation would
squarely fall within the well laid down parameters in the case of
State of Haryana and others Vs. Bhajanlal and others, 1992 Supp
(1) SCC 335, and more particularly Clause 1, 3, and 7 thereof :
"102.................
(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) ...
(3) Where the uncontroverted allegations made in the
FIR or com- plaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) ...
(5) ...
(6) ...
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge."
11. Hence, we proceed to pass the following order:
ORDER
i) The application is allowed.
i) The First Information Report No. 0096/2020, registered with
non-applicant No.1, Police Station Hudkeshwar, Nagpur, on
15.03.2020, for the offences punishable under Sections 406 and
420, read with Section 34 of the Indian Penal Code, is quashed and
set aside to the extent of the present applicants.
iii) The application is allowed and disposed of as such.
12. Pending applications, if any, shall stand disposed of.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.)
Jayashree..
