[Cites 11, Cited by 0]
Bombay High Court
Deepak S/O Shivnarayan Batwada And ... vs State Of Mah. Thr. Ps Warud City ... on 16 February, 2026
2026:BHC-NAG:2751-DB
1 APL.193-2021 & ANR..JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 193 OF 2021
1. Deepak S/o Shivnarayan Batwada,
Aged about 50 Years, Occ. Business,
R/o Ward No.17, Mothe Bhaji Bazar
Warud, Tah. Warud Dist. Amravati.
2. Pravin S/o Narayanrao Dharmthok,
Aged about 49 Years, Occ. Business,
R/o Ward No.18, Takachi Sath,
Warud, Tah. Warud Dist. Amravati. APPLICANTS
Versus
1. The State of Maharashtra,
Through Police Station Warud City,
Dist. Amravati.
2. Shri Mahendra Gangadharrao
Kathiwale,
Aged about Major,
R/o. Main Road, Warud,
Tah. Warud, Dist. Amravati. NON-APPLICANTS
-----------------------------------------------
Mr. Rahul Dharmadhikari, Advocate for the Applicants.
Mr. A.M. Joshi, APP for the Non-applicant No. 1/State.
-----------------------------------------------
CORAM : URMILA JOSHI PHALKE, J.
RESERVED ON : 11th FEBRUARY , 2026.
PRONOUNCED ON : 16th FEBRUARY, 2026.
ORAL JUDGMENT :-
2 APL.193-2021 & ANR..JUDGMENT.odt
1. Heard.
2. ADMIT. Heard finally by the consent of learned
Counsel for the Applicants and learned APP for the
Non-applicant No.1/State.
3. The present Application is preferred by the
Applicants for quashing of the First Information Report ("FIR"
for short) in connection with Crime No.16/2021 registered with
Police Station Warud, District Amravati for the offence
punishable under Sections 406, 420 and 506 read with Section
34 of the Indian Penal Code ("IPC" for short) and consequent
proceeding arising out of the same bearing R.C.C. No.310/2022
pending before the J.M.F.C. Warud, Amravati.
4. The brief facts which are necessary for the disposal
of the present Application are as under:-
The FIR came to be lodged on the basis of a report
lodged by the Non-applicant No.2/Mahendra Kathiwale on an
allegation that there was acquaintance between his mother and
the co-accused Kalpana Shrirao. Co-accused Kalpana Shrirao
3 APL.193-2021 & ANR..JUDGMENT.odt
was in need of financial assistance, and therefore, she asked the
mother of the Informant for some amount on which the mother
has disclosed that she is not having cash amount, on that the
co-accused asked for some golden ornaments. Accordingly, the
mother of the Informant handed over her golden ornaments
total 65.001 grams worth Rs.19,53,000/-. Despite the demand
on various occasions, she has not returned the said golden
ornaments and disclosed that the said golden ornaments are
given by her to Applicant No.2/Pravin Dharmthok in presence
of the Applicant No.1. When the mother of the Informant
demanded the said golden ornaments from the Applicant No.2,
the Applicant No.2 threatened him and disclosed that he is
having said golden ornaments but he will not hand over the
same. On the basis of the said report Police have registered the
crime against the present Applicants.
5. Heard Mr. Dharmadhikari, learned Counsel for the
Applicants who submitted that as far as the present Applicant
No.1 is concerned against whom the only allegation is that in
his presence the golden ornaments were handed over by the
co-accused Kalpana Shrirao to the Applicant No.2, however this
fact is not substantiated by any material except the allegation.
4 APL.193-2021 & ANR..JUDGMENT.odt
The investigation papers nowhere discloses that such golden
ornaments were alongwith the mother of the Informant and she
has handed over the same to the present Applicants. He further
submitted that, the Applicants are charge-sheeted for the
offence punishable under Sections 406 and 420 of IPC and both
Sections cannot co-exist together. In support of his contention
he placed reliance on the decision of Arshad Neyaz Khan Vs.
State of Jharkhand & Anr., 2025 LiveLaw (SC) 950 .
6. Per contra, learned APP strongly opposed the said
contention and submitted that there is specific allegation
against the present Applicants that they have received the
golden ornaments. Thus, the golden ornaments were entrusted
with the present Applicants. The statements of the various
witnesses also discloses that in the similar way they were also
deceived by the present Applicants, and therefore, considering
the prima facie material, the Application deserves to be rejected.
7. On hearing both the sides and on perusal of the
entire investigation papers the allegation is that the co-accused
was in need of financial assistance, therefore she approached
the mother of the Informant. The mother of the Informant was
5 APL.193-2021 & ANR..JUDGMENT.odt
not having cash amount, and therefore, the co-accused has
obtained the golden ornaments from her. It is further alleged
that, in the presence of the Applicant No.1 the other co-accused
has handed over the said golden ornaments to the Applicant
No.2. From the statement it further reveals that the co-accused
handed over the said golden ornaments to the Non-applicant
No.2. During investigation, the Investigating Officer has
recorded the relevant statement of the witnesses. The
statements also discloses that the Applicants have obtained the
golden ornaments which was entrusted with them.
8. On perusal of the investigation papers especially the
communication by Utkranti Nagari Sahakari Path Sanstha which
shows that it was Kalpana Shrirao who has obtained the loan by
mortgaging the golden ornaments with the said Path Sanstha.
The statement of the account of Kalpana Shrirao also disclosed
that she has obtained the loan by mortgaging the said golden
ornaments. Thus, as far as the entrustment of the said golden
ornaments is concerned it was with the co-accused Kalpana
Shrirao. The investigation papers nowhere reveals that the said
golden ornaments are either handed over to the present
Applicants or entrusted with the present Applicants. On the
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contrary, the evidence collected during investigation by the
Investigating Officer shows that it was the co-accused Kalpana
Shrirao who has mortgaged the gold with the Path Sanstha and
obtained the loan. Considering the communication from the
Path Sanstha, it is clear that the golden ornaments were with
the said co-accused Kalpana Shrirao and she has used it for
obtaining the loans. Thus, there is no material to show that the
golden ornaments were entrusted with the present Applicants
and there was a dishonest intention on the part of the present
Applicants. The statement of the other witness i.e. Babarao
Udaramji Tumane also disclosed that the said co-accused has
obtained money from him also. The statement of Sujit Marotrao
Kherde is also similar. Thus, as far as the present Applicants are
concerned, none of the statements discloses that the said golden
ornaments were handed over to the present Applicants but the
communication by the Bank and various statements of the
witnesses discloses that it was given to the co-accused Kalpana
Shrirao. As far as handing over of the said golden ornaments by
Kalpana Shrirao to the present Applicants is concerned, there is
no material. Thus, the chain of events that Kalpana Shrirao has
obtained the golden ornaments from the mother of the
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Informant and handed over to the present Applicants is not
established but the fact that Kalpana Shrirao has obtained the
said golden ornaments from the mother of the Informant reveals
from the investigation papers.
9. Learned Counsel for the Applicant rightly pointed
out that both the offences i.e. criminal breach of trust and
cheating cannot co-exist together. He has placed reliance on the
decision of Arshad Neyaz Khan (supra), wherein the Hon'ble
Apex Court by referring the relevant provisions i.e. 406 and 420
of IPC and by referring the earlier decision in Inder Mohan
Goswami Vs. State of Uttaranchal, (2007) 12 SCC 1, wherein it
is observed as under :
"42. On a reading of the aforesaid section, it is manifest
that in the definition there are two separate classes of acts
which the person deceived may be induced to do. In the
first class of acts he may be induced fraudulently or
dishonestly to deliver property to any person. The second
class of acts is the doing or omitting to do anything which
the person deceived would not do or omit to do if he were
not so deceived. In the first class of cases, the inducement
must be fraudulent or dishonest. In the second class of
acts, the inducing must be intentional but need not be
fraudulent or dishonest. Therefore, it is the intention
which is the gist of the offence. To hold a person guilty of
cheating it is necessary to show that he had a fraudulent or
dishonest intention at the time of making the promise.
From his mere failure to subsequently keep a promise,
once cannot presume that he all along had a culpable
intention to break the promise from the beginning."
8 APL.193-2021 & ANR..JUDGMENT.odt
10. It is pertinent to mention that, the Informant has
come with a case that the golden ornaments were entrusted
with the present Applicants and they have denied to hand it
over, and therefore, there is a criminal breach of trust as defined
under Section 405 of IPC. It is the further case of the Informant
that, with fraudulent intention the golden ornaments are
obtained by the present Applicants and not returned back, and
therefore, the offence is committed under Section 420 of IPC.
11. The Hon'ble Apex Court in the case of Delhi Race
Club(1940) Limited Vs. State of Uttar Pradesh, (2024) 10 SCC
690 observed as under:
"there is a distinction between criminal breach of trust and
cheating. For cheating, criminal intention is necessary at
the time of making 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 misappropriates the same.
Whereas, in case of cheating, the offender fraudulently or
dishonestly induces a person by deceiving him to deliver a
property. In such a situation, both offences cannot co-exist
simultaneously. Consequently, the complaint cannot
contain both the offences that are independent and
distinct. The said offences, cant co-exist simultaneously in
the same set of facts as they are antithetical to each other."
12. At this point, it must be mentioned that the
complaint was filed by the Informant with both the allegations.
9 APL.193-2021 & ANR..JUDGMENT.odt
If the Informant come with a case that it is a breach of trust
then the second contention that it was accepted with the
fraudulent intention will not sustain. As observed by the Hon'ble
Apex Court in the case of Inder Mohan Goswami (supra), that
the Court must ensure that criminal prosecution is not used as
an instrument of harassment or for seeking private vendetta or
with an ulterior motive to pressurize the accused. It was further
held that it is neither possible nor desirable to lay down any
inflexible rule that would govern the exercise of inherent
jurisdiction. In view of the above and for the reasons stated
above, I am of the firm opinion that to continue the criminal
proceedings against the present Applicants would be an abuse
of process of law as no prima facie case for the offence
punishable under Sections 406 and 420 of IPC is made out, as
the foundational fact that said Kalpana Shrirao has handed over
the said golden ornaments to the present Applicants itself is not
reflected from the entire charge-sheet.
13. In this regard considering the parameters laid down
by the Hon'ble Apex Court in the case of State of Haryana &
10 APL.193-2021 & ANR..JUDGMENT.odt
Ors. Vs. Bhajan Lal & Ors., 1992 Supp.(1) SCC 335 , 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 in the first information report
and other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR
or complaint 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) Where, the allegations in the FIR 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
Section 155(2) of the Code.
(5) Where the allegations made in the FIR 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 bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings 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 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."
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14. By applying the same to the facts of the present case
no prima facie case is made out against the present Applicants,
and therefore, the Application deserves to be allowed.
Accordingly, I proceed to pass the following order.
ORDER
i. Criminal Application is allowed.
ii. The First Information Report in connection with
Crime No. 16/2021 registered with Police Station
Warud, District Amravati for the offence punishable
under Sections 406, 420 and 506 of the Indian Penal
Code and consequent proceeding arising out of the
same bearing R.C.C. No.310/2022 pending before
the J.M.F.C. Warud, Amravati, are hereby quashed
and set aside to the extent of the present Applicants.
15. Pending application/s, if any, shall stand disposed of
accordingly.
(URMILA JOSHI PHALKE, J.)
S.D.Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 17/02/2026 19:10:20
