Bombay High Court
Ashok S/O Natthulal Choudhari And ... vs The State Of Mah. Thr. Pso Ps Imamwada ... on 9 October, 2025
2025:BHC-NAG:10547-DB
941 apl 936.22.odt..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 936 OF 2022
1. Ashok s/o Natthulal Choudhari
Aged about 41 years,
Occupation : Service,
R/o Flat No.102, Archana Palace-1
Plot No.30, opposite Naik Hospital,
Bhagwan Nagar, Parvati Nagar,
Nagpur-440027
2. Kushal s/o Rajendra Raichand,
Aged about 35 years,
Occupation: Service,
R/o Flat No.402, 4th Floor,
Jaikamal Complex "C" Wing, Near
Gandhi Gate, Mahal
Nagpur-440002 APPLICANTS
// V E R S U S //
1. The State of Maharashtra,
Through Police Station Officer,
Police Station, Imamwada Nagpur
2. Shoev Md. Rafique
Aged about 38 years,
Occupation : Business
R/o Plot No.528 Dasara Road Near
Mosque, Mahal Police Station NON-APPLICANTS
Kotwali, Nagpur
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Mr Anil Mardikar, Senior Advocate assisted by Mr. R.S. Suryawanshi,
Advocate for the applicants.
Mr. M.J. Khan, APP for non-applicant Nos.1/State.
Mr Mohammad A. Sheikh Advocate for non-applicant No.2.
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2
CORAM : URMILA JOSHI PHALKE, J. AND
NANDESH S. DESHPANDE, JJ.
JUDGMENT RESERVED ON : 01.10.2025
JUDGMENT PRONOUNCE ON.
J U D G M E N T :
(PER : NANDESH S. DESHPANDE, J.)
1. Heard.
2. ADMIT. Heard finally by the consent of learned
counsel for the parties.
3. This is an application seeking to quash FIR
No.165/2022 registered by non-applicant No.1 against the
applicants for offences punishable under Sections 448 and 380 of
the Indian Penal Code and consequent charge-sheet bearing
No.70/2022 dated 24.09.2022.
4. As per contents of the said FIR, non-applicant No.2
herein namely Mr. Shohaib Sheikh Parvez was using a space of
about 2000 sq. ft. super built up area in one of the shops in the
mall namely V.R. Mall Vidarbh Limited, Nagpur, situated at
Medical Square, Nagpur. The said space was let out to him under
a leave and license agreement, inter alia, for purpose of trading in
941 apl 936.22.odt..odt
readymade garments and other fabrics from under brand name
"Fabrica". The space was let out on a condition that the
complainant will make timely payment of license fees not later
than the 7th day of each calendar month. The agreement in
question also provides that in the event of default in making timely
payment, the said Company would have a right to terminate the
agreement and under Clause 14.5 to re-enter upon the premises
and repossess the same, without being guilty of any trespass.
5. Non-applicant No.2 lodged an FIR that on 22.05.2022
stating that he received a call on his mobile phone from a friend
that the goods in the shop have been taken out and shop has been
locked. He rushed to the spot wherein it was found that the
applicants who happened to be Operation Manager of the said VR
Mall and Accountant Head respectively have locked the premises
i.e. shop in question. The FIR was lodged for offences punishable
under Section 448 of the IPC and subsequently offence punishable
under Section 380 of the IPC was added. It is this FIR and
consequent charge-sheet which is being challenged in the present
application filed under Section 482 of Cr.P.C.
941 apl 936.22.odt..odt
6. We have heard Mr. Anil Mardikar, Senior Advocate
along with Mr. Roshan S. Suryavanshi, Advocate for the applicants.
We have also heard Mr. M.J, Khan, learned APP for the State and
Mr. Md. Adil Sheikh, learned Advocate for non-applicant No.2.
7. Learned Senior Advocate states that applicant No.1 is
the Senior Manager employed with the company namely V. R.
Vidarbh Limited (Company), while, applicant No.2 is the Senior
Manager (Finance and Accounts). The original accused No.2 was
former employee of the company and working as Mall Manager
however, he has tendered his resignation on 25.02.2022 i.e. much
prior to the lodging of the FIR. He further states that an agreement
of leave and license was entered into between the parties, which is
not disputed. It is his further submission that the present
complaint is essentially and entirely a civil dispute emerging out of
default by the complainant in making payment of his dues towards
licence fees and other charges and at the most can be termed as
breach of contractual obligations. He further submits that there is
no element of any criminality involved in the matter and therefore,
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the registration of offence is nothing but an abuse of process of
law. Learned Senior Advocate also invites our attention to the
various Clauses in the agreement and more particularly Clause 5.4
(b) which reads as under:-
"5.4 (b) Notwithstanding anything contained
in Article 5.4 (a) above, the Licensor shall have the
first lien over all furniture and fixtures and stock-in-
trade of the Licensee in the Licensed Premises and in
the event of a default in making any payment by the
Licensee to the Licensor, in accordance with the
terms of this Agreement, the Licensor shall have the
right to enforce such lien, take possession of such
stock-in-trade and fixtures and fittings and dispose
of the same in the manner it deems fit and proper,
to recover the pending payments."
8. He also invites our attention to Clause 14.5
which reads as under:-
"14.5 Remedies-by accepting payment of any License Fee
or Other Charges owed hereunder by the Licensee after its
due date, the Licensor shall not be deemed to have waived
any of its rights against the Licensee, either to require
prompt payment of such License Fee/other charges when
due or to declare an Event of Default for failure to make
such prompt payment(s). Notwithstanding any delay or
omission, following any one or more of the
aforementioned Events of Default, the Licensor or its
employees or agents may re-enter the Licensed Premises
or any part thereof and repossess the same without being
deemed guilty of any manner of trespass, and without
prejudice to any remedies which might otherwise be
available to Licensor on account of non payment of
License Fee or breach of a covenant, and /or Licensor may
send written notice to Licensee terminating this
Agreement upon the first to occur of (a) entry upon the
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licensed Premises by Licensor, as aforesaid, or (b) the 5 th
(fifth) day following mailing of such notice of
termination. Each right of the licensor provided for in this
Agreement shall be cumulative and shall be in addition to
every other right provided for in this Agreement or now or
hereafter existing at law or in equity, by statute or
otherwise, and the exercise or beginning of the exercise by
the Licensor of any one or more of such rights shall not
preclude the simultaneous or later exercise by the
Licensor of any or all other rights provided for by this
agreement or now or hereafter existing at law or in
equity, by statute or otherwise. Nothing herein contained
shall be construed as limiting or precluding the recovery
by the Licensor against the Licensee of any sums or
damages to which in addition to the damages particularly
provided herein, the Licensor may lawfully be entitled by
reasons of any default hereunder on the part of the
Licensee."
9. He therefore, submits that the leave and license
agreement was subsisting between the parties and since non-
applicant No.2 failed in payment of license fee, as per time
schedule stipulated in the said agreement, the applicants being
the Officers of the said company are entitled to enforce the
contractual obligations. In other words, learned Senior counsel
submits that there was no criminality involved in the present
matter. He also brings to our notice that civil litigation between
the parties is pending and non-applicant No.2 having failed to
obtain any relief from the Civil Court has now resorted to
vindictive practice and has filed present FIR.
941 apl 936.22.odt..odt
10. On the other hand, Mr. M.J. Khan, learned APP
vehemently opposed the submissions made by learned Senior
Counsel and submits that the meaningful reading of the entire FIR
would reveal that the offence of house trespass is clearly made out
and offence punishable under Section 380 is also made out.
11. Learned counsel for non-applicant No.2 also supports
the learned APP and submits that only because there is a
contractual obligation that cannot be a reason to absolve the
applicants from any offence as punishable under the Indian Penal
Code. He further submits on oral instruction of this Court the
applicants have returned the goods of the non-applicant No.2.
However, goods worth Rs.10 Lakhs are missing and goods worth
more than 32 lakhs are destroyed. He therefore, submits that the
offence punishable under Section 380 is also made out. Therefore,
prays for rejection of the application.
12. In the light of these facts, we have perused the
material placed on record which includes various communications
between the parties. The crux of the matter is leave and license
941 apl 936.22.odt..odt
agreement enter into between the parties which is not disputed.
The relevant Clauses of which are reproduced above. It is a
matter of record that non-applicant No.2 has filed Regular Civil
Suit bearing RCS No.188/2021 which is pending before Small
Clauses Court at Nagpur. In the said matter, non-applicant No.2
had filed an application for mandatory injunction directing the
defendants to allow him to remove stock from the suit premises.
However, the said application came to be rejected by the learned
Small Causes Court vide its order dated 06.05.2022.
13. On the perusal of the record it can also be seen that
vide notice dated 20 May, 2022 the establishment of non-applicant
No.2 was intimated by the company of the applicants that
agreement in question has been terminated due to non adherence
of payment by the non-applicant No.2. It was further informed
that goods belongings have been moved to the storage area of the
Mall. It is also stated in the notice that goods belonging to Fabrica
has been moved to the storage area of the Mall. The receipt of the
said notice is not disputed. More over there is report of physical
counting of stock (inventory) made by 3 rd party i.e. Anubhav Asate
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and Company, Chartered Accountant. It can thus be said that the
company of the applicants have only enforced the contractual
obligations entered into between the parties out of their free will
and Volition. More over non-applicant No.2 has himself filed on
record a communication dated 28.09.2022 wherein he has
admitted that the team of the applicants company has requested
him to take stock after counting each and every stock (goods)
inside the 87 boxes. However, he states that he is taking out
inventory without the counting each and every stock assuming
that there is full stock in 87 boxes as per list generated by the
independent company.
14. In the light of these facts, it cannot be said the offence
of punishable under Section 448 (which speaks about trespass) is
made out. The Company of the applicants was only enforcing
contractual obligation mentioned in the contract reproduced
above.
15. Thus, in our considered view there is no criminality in
the acts of the applicants and the dispute which is essentially of
civil nature has been given colour of criminality. In the judgment
941 apl 936.22.odt..odt
of A.M. Mohan Vs. State Represented by SHO and Another
reported in (2024) 12 SCC 181 the Hon'ble Apex Court has
recorded as under:-
1. Consideration
"18. The law with regard to exercise of
jurisdiction under Section 482 CrPC to quash
complaints and criminal proceedings has been
succinctly summarised by this Court in Indian
Oil Corpn. v. NEPC India Ltd. reported in
(2006) 6 SCC 736 after considering the
earlier precedents. It will be apposite to refer
to the following observations of this Court in
the said case, which read thus: (SCC pp. 747-
49, paras 12-14)
"12. The principles relating to exercise of
jurisdiction under Section 482 of the Code of
Criminal Procedure to quash complaints and
criminal proceedings have been stated and
reiterated by this Court in several decisions.
To mention a few-Madhavrao Jiwajirao
Scindia v. Sambhajirao Chandrojirao Angre
reported in (1988) 1 SCC 692, State of
Haryana v. Bhajan Lal reported in 1992 Supp
(1) SCC 335, Rupan Deol Bajaj v. Kanwar Pal
Singh Gill reported in (1995) 6 SCC 194,
CBI v. Duncans Agro Industries Ltd. reported
in (1996) 5 SCC 591, State of Bihar v.
Rajendra Agrawalla reported in (1996) 8 SCC
164, Rajesh Bajaj v. State (NCT of Delhi)
reported in (1999) 3 SCC 259, Medchl
941 apl 936.22.odt..odt
Chemicals & Pharma (P) Ltd. v. Biological
E. Ltd. reported in (2000) 3 SCC 269,
Hridaya Ranjan Prasad Verma v. State of
Bihar reported in (2000) 4 SCC 168, M.
Krishnan v. Vijay Singh reported in (2001) 8
SCC 645 and Zandu Pharmaceutical Works
Ltd. v. Mohd. Sharaful Haque reported in
(2005) 1 SCC 122. The principles, relevant to
our purpose are:
(i) A complaint can be quashed where the
allegations made in 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 the case alleged
against the accused.
For this purpose, the complaint has to be
examined as a whole, but without examining
the merits of the allegations. Neither a
detailed inquiry nor a meticulous analysis of
the material nor an assessment of the
reliability or genuineness of the allegations in
the complaint, is warranted while examining
prayer for quashing of a complaint.
ii) A complaint may also be quashed where it
is a clear abuse of the process of the court, as
when the criminal proceeding is found to
have been initiated with mala fides/malice for
wreaking vengeance or to cause harm, or
where the allegations are absurd and
inherently improbable.
(iii) The power to quash shall not, however,
be used to stifle or scuttle a legitimate
941 apl 936.22.odt..odt
prosecution. The power should be used
sparingly and with abundant caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is
laid in the complaint, merely on the ground
that a few ingredients have not been stated in
detail, the proceedings should not be quashed.
Quashing of the complaint is warranted only
where the complaint is so bereft of even the
basic facts which are absolutely necessary for
making out the offence.
(v) A given set of facts may make out: (a)
purely a civil wrong; or
(b) purely a criminal offence; or (c) a civil
wrong as also a criminal offence. A
commercial transaction or a contractual
dispute, apart from furnishing a cause of
action for seeking remedy in civil law, may
also involve a criminal offence. As the nature
and scope of a civil proceeding are different
from a criminal proceeding, the mere fact that
the complaint relates to a commercial
transaction or breach of contract, for which a
civil remedy is available or has been availed, is
not by itself a ground to quash the criminal
proceedings. The test is whether the
allegations in the complaint disclose a
criminal offence or not.
13. While on this issue, it is necessary to take
notice of a growing tendency in business
circles to convert purely civil disputes into
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criminal cases. This is obviously on account of
a prevalent impression that civil law remedies
are time consuming and do not adequately
protect the interests of lenders/creditors. Such
a tendency is seen in several family disputes
also, leading to irretrievable breakdown of
marriages/families. There is also an
impression that if a person could somehow be
entangled in a criminal prosecution, there is a
likelihood of imminent settlement. Any effort
to settle civil disputes and claims, which do
not involve any criminal offence, by applying
pressure through criminal prosecution should
be deprecated and discouraged. In G. Sagar
Suri v. State of U.P. reported in 14 (2000) 2
SCC 636 this Court observed:
(SCC p. 643, para 8)
'8. ... It is to be seen if a matter, which is
essentially of a civil nature, has been given a
cloak of criminal offence. Criminal
proceedings are not a short cut of other
remedies available in law.
Before issuing process a criminal court has to
exercise a great deal of caution. For the
accused it is a serious matter. This Court has
laid certain principles on the basis of which
the High Court is to exercise its jurisdiction
under Section 482 of the Code. Jurisdiction
under this section has to be exercised to
prevent abuse of the process of any court or
otherwise to secure the ends of justice.'
941 apl 936.22.odt..odt
14. While no one with a legitimate cause or
grievance should be prevented from seeking
remedies available in criminal law, a
complainant who initiates or persists with a
prosecution, being fully aware that the
criminal proceedings are unwarranted and his
remedy lies only in civil law, should himself
be made accountable, at the end of such
misconceived criminal proceedings, in
accordance with law. One positive step that
can be taken by the courts, to curb
unnecessary prosecutions and harassment of
innocent parties, is to exercise their power
under Section 250 CrPC more frequently,
where they discern malice or frivolousness or
ulterior motives on the part of the
complainant. Be that as it may."
19. The Court has also noted in Indian Oil
Corpn. Vs. NEPC India Ltd. reported in
(2006) 6 SCC 736, the concern with regard
to a growing tendency in business circles to
convert purely civil disputes into criminal
cases. The Court observed that this is
obviously on account of a prevalent
impression that civil law remedies are time-
consuming and do not adequately protect the
interests of lenders/creditors. The Court also
recorded that there is an impression that if a
person could somehow be entangled in a
criminal prosecution, there is a likelihood of
imminent settlement. The Court, relying on
the law laid down by it in G. Sagar Suri v.
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State of U.P. reported in (2000) 2 SCC 636
held that any effort to settle civil disputes and
claims, which do not involve any criminal
offence, by applying pressure through
criminal prosecution should be deprecated
and discouraged. The Court also observed
that though no one with a legitimate cause or
grievance should be prevented from seeking
remedies available in criminal law, a
complainant who initiates or persists with a
prosecution, being fully aware that the
criminal proceedings are unwarranted and his
remedy lies only in civil law, should himself
be made accountable, at the end of such
misconceived criminal proceedings, in
accordance with law."
15. It is thus the dictum of the Hon'ble Supreme Court
that nowadays there is a tendency to convert civil dispute into
criminal one since it is an impression of the litigants that if the
criminal law is set in motion they would get urgent and immediate
relief. However, time and again Hon'ble Supreme Court has
deprecated such practice. From the facts stated hereinabove it is
amply clear that no criminal offence much less as alleged in the
FIR and consequent charge sheet is made out. It would be
therefore, a fit case to exercise inherent jurisdiction under Section
482 of the Cr.P.C, since the allegations made in the complaint even
941 apl 936.22.odt..odt
if they are taken at their face value and accepted in their entirety,
do not constitute any offence or make out any case against the
accused.
16. It is only commercial transaction or more or less a
contractual dispute. Thus, the complaint relates to commercial
transaction or breach of contract (as it is in the present case) for
which civil remedy is available or has been availed. Thus, in our
view, this is one of those cases where there is growing tendency in
business circles to convert purely civil disputes into criminal cases.
It is obviously on account of prevalent impressions that civil law
remedy is time consuming and do not adequately protect the
interest of litigants. It would be, thus, fit case to quash FIR and
charge-sheet in the matter. We, therefore, pass following order:-
ORDER
(i) The Criminal Application is allowed.
(ii) First Information Report in connection with
crime No.165/22 registered for the offences punishable under
Sections 448 and 380 of the Indian Penal Code and
consequent charge-sheet bearing No.70/2022 dated
24.09.2022 is hereby quashed and set aside to the extent of
present applicants namely applicant No.1- Ashok s/o
941 apl 936.22.odt..odt
Natthulal Choudhari and applicant No.2- Kushal s/o
Rajendra Raichada.
17. Criminal application stands disposed of. Pending
application, if any, stand disposed of.
[NANDESH S. DESHPANDE, J][ URMILA JOSHI PHALKE, J.)
manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 10/10/2025 10:28:20
