[Cites 11, Cited by 0]
Bombay High Court
Naina Jatin Chelwani vs State Of Maharashtra, Thr. Police ... on 18 February, 2026
2026:BHC-NAG:3164-DB
7 apl 385.21.odt..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 385 OF 2021
1. Naina Jatin Chelwani APPLICANT
Aged about 28 years,
Occupation : Housework,
R/o. Venkat Ward,
Shashtri Ward, Dist. Katni
Madhya Pradesh
// V E R S U S //
1. The State of Maharashtra,
Through Police Station Officer, NON-APPLICANTS
Beltarodi, Nagpur
2. Nikhil Mahendra Sahare,
Aged about 24 years,
Occ. Service,
R/o. 389, Bhimnagar, Ward No.4,
Khaparkheda, Nagpur
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Mr. N.R. Jadhav, Advocate for the applicant.
Mrs. Mrunal Barbade, APP for non-applicant No.1/State.
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CORAM : URMILA JOSHI PHALKE, J.
DATED : 18.02.2026
ORAL JUDGMENT :
1. Heard.
2. ADMIT. Taken up for final disposal with the consent
of learned counsel for the parties.
7 apl 385.21.odt..odt
3. None appears for the non-applicant No.2 despite the
service of notice.
4. The present application is preferred by the applicant
for quashing of the First Information Report in connection with
crime No.458/2020 registered with the non-applicant No.1-Police
Station Beltarodi under Sections 406 and 420 read with 34 of the
Indian Penal Code (for short, 'IPC').
5. The crime is registered on the basis of report lodged
by non-applicant No.2 stating that he was Graduate in B.E.
Electrical and he was in search of employment. He read the
Newspaper and noticed the advertisement issued by M/s Crest
Technology in daily Newspaper "Lokmat Times". The newspaper
advertisement shows that the Engineering Graduates who have
passed their Engineering Examination in 2017 and 2018 were
invited for direct interview for getting employment. Thereafter,
the non-applicant No.2 made a phone call at the office of Crest
Technology to enquire about their advertisement. Non-applicant
No.2 spoken with one Himanshi Bhagwani who is also accused in
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the present crime and she informed about the selection process of
Company and asked the non-applicant No.2 to visit the office of
the Company at Manish Nagpur, Nagpur. This information was
taken from the said office thereafter he was asked to meet the
present applicant and co-accused Himanshi Bhagwani wherein
during communication he enquired with them but subsequently he
was asked to leave the office. It is further alleged that he was
introduced with the proprietor of Crest Technology namely Akshay
Agrawal and YVS Shyamsunder who have disclosed about various
employment opportunities with the Government Organization
such as Bharat Petroleum, Natural Gas and demanded an amount
of Rs.14 Lakhs. Out of the said amount the amount of Rs.7 Lakhs
is required to be deposited prior to appointment and another
installment of Rs.7 Lakhs was to be deposited after the
appointment. It was further disclosed by co-accused Akshay
Agrawal and YVS Shyamsunder that he was interested and he
would discuss about the company proposal with his father. It is
further alleged that non-applicant's father met with Akshay
Agrawal and YVS Shyamsundar, Both the accused informed them
about the employment opportunities and also asked them to
provide in exchange for a fee of Rs. 14 Lakhs. As The father of the
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non-applicant No.2 has not inclined to pay such huge amount due
his poor financial status, the co-accused Akshay Agrawal and YVS
Shyamsunar have given concession to the non-applicant No.2 and
asked him to pay Rs.9,50,000/-. Non-applicant No.2 enquired
about the guarantee of job on which they have stated that they
would execute a promissory note through which Crest Technology
would receive a loan for an amount of Rs.9,50,000/- from the
non-applicant No.2 with 0% interest through a promissory note.
Accordingly the father of the non-applicant No.2 transferred an
amount of Rs.9,50,000/- in three installments. It is alleged that
similar like non-applicant No.2 various persons were approached
and amount was obtained. On the basis of the said report police
have registered crime against the present applicant and the other
co-accused under Section 406 and 420 read with 34 of the IPC.
6. Heard learned counsel for the applicant who invited
my attention towards judgment of trial Court in Criminal Case
No.1128/2021 and submitted that with the similar allegations co
accused Himanshi Bhagawani was prosecuted before the trial
Court and she is already acquitted from the said charges. He
invited my attention towards the entire investigation papers and
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submitted that against co-accused Himanshi Bhagwani and
present applicant similar allegation was levelled that they were
working there as an H.R. Manager and only allegation is that
present non-applicant No.2 approached to them. They made
enquiry with him and thereafter he was introduced with the other
accused. He submitted that even accepting the allegation as it is
only allegation against present applicant is that she was presently
working there as H.R. Manager. There is no allegation that either
she has received any amount or she has received any monetary
benefits by depositing of the amount by non-applicant No.2. He
submitted that thus, considering the entire allegations and
considering the fact that with the similar allegation the other co-
accused Himanshi Bhagwani is already acquitted, no purpose
would be served by forcing applicant to face the trial. In view of
that the application deserves to be allowed.
7. Per contra, learned APP strongly opposed the said
contention and submitted that the statement of informant and
other prosecution witnesses discloses the presence of the present
applicant in the Crest Technology, Manish Nagar Nagpur. The
statements of the various witnesses disclose that she was working
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as H.R. Manager there and non-applicant No.2 and other persons
who approached to the said Crest technology for securing job
have deposited the amount. Thus there was common intention on
the part of the applicant also to deceive the complainant and
other persons and therefore, the application deserves to be
rejected.
8. After considering the rival submissions of both the
parties and on perusal of the investigation papers, only allegation
against the present applicant is that she was working as H.R.
Manager. On perusal of the statements of the witnesses i.e.
complainant as well as other witnesses which show that they are
unemployed youth. By reading the advertisement in the news
paper they approached to the said Crest Technology wherein the
present applicant was working as H.R. Manager. The allegation is
that after taking the initial information from the said candidates
they were sent to the present applicant and other co-accused
Himanshi Bhagwani to record their information and thereafter
they were introduced the other co-accused Akshay Agrawal and
one YVS Shyamsundar. As far as the allegations in the FIR and the
statements of the witnesses are concerned, i.e. co-accused Akshay
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Agrawal and said Shyamsundar have asked them to deposit some
amount to secure the job and accordingly the complainant has
deposited the amount of Rs.9,50,000/- in the account of the
company. Thus, as far as the allegations are concerned, in the FIR
and the entire charge-sheet against the applicant is concerned,
which is to the extent that she was serving as a H.R. Manager and
not more than that admittedly the copy filed on record of the
judgment passed by the Judicial Magistrate First Class Court No.8
Nagpur in Criminal Case No.1128/2021 wherein the other co-
accused Himanshi Prakash Bhagwani was prosecuted and she
faced the trial. She is acquitted by the trial Court by observing
that the prosecution could not prove the charges against her and
thereby she was given benefit of doubt. In view of that she was
acquitted from the charges. The similar charges are levelled
against the present applicant.
9. The complainant has claimed that present applicant
was working in Crest Technology as H.R. Manager and except
that allegation admittedly there is no subsequent allegations that
either she has demanded the amount or she has accepted the
amount. Admittedly the prosecution has filed charge-sheet under
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Section 406, 420, 467, 468, 471 read with Section 34 of the IPC.
The entire charge-sheet nowhere discloses that there is any
involvement of the present applicant in the forgery of the
documents. It is now settled that the offence under Section 406
and 420 of the IPC will not coexist together. There is difference
between criminal breach of trust and cheating. The ingredients, in
order to constitute criminal breach of trust, are there must be
entrustment with person for property or dominion over the
property, and 2) that person entrusted: - a) dishonestly
misappropriated or converted property to his own use, or b)
dishonestly used or disposed of the property or wilfully suffers any
other person so to do in violation of: i. of any direction of law
prescribing the method in which the trust is discharged; or ii. Of
legal contract touching the discharge of trust.
10. The ingredients of an offence of cheating are (i) there
should be fraudulent or dishonest inducement of a person by
deceiving him, (ii)(a) the person so deceived should be induced to
deliver any property to any person, or to consent that any person
shall retain any property; or (b) the person so deceived should be
intentionally induced to do or omit to do anything which he
7 apl 385.21.odt..odt
would not do or omit if he were not so deceived; and (iii) in case
covered by (ii)(b), the act of omission should be one which causes
or is likely to cause damage or harm to the person induced in
body, mind reputation or property.
11. Thus, in order to constitute criminal breach of trust
under Section 406 of the IPC (i) there must be entrustment with
person for property or dominion over property and (2) the person
entrustment (a) dishonestly misappropriating or converting that
property to his own use; or (b) dishonestly using or disposing of
that property or wilfully suffering any other person so to do in
violation (i) of any direction of law prescribing the mode in which
such trust is to be discharged, (ii) of any legal contract made,
touching the discharge of such trust.
12. On plain reading of the complaint if fails to spell out
of the aforesaid ingredient if it is the case of the complainant that
criminal breach of trust as defined under Section 405 of the IPC
punishable under Section 406 of the IPC is committed by accused,
the same in same breath it cannot be said that the accused has
7 apl 385.21.odt..odt
also committed an offence of cheating as defined and explained in
section 415 of IPC punishable under Section 420 of IPC.
13. This aspect is considered by the Hon'ble Apex Court
in the case of Delhi Race Club (1940) Ltd. v. State of U.P reported
in (2024) 10 SCC 690 Every act of breach of trust may not result
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 Hari Prasad Chamria v.
Bishun Kumar Surekha and ors. reported in (1973) 2 SCC 823 as
under:
"4. We have heard Mr. Maheshwari on behalf of the
appellant and are of the opinion that no case has been
made out against the respondents under Section 420
Penal Code, 1860. 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 not disclose the
commission of any offence on the part of the
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respondents under Section 420 Penal Code, 1860. 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 amounts to him in the month of
December might create civil liability for them but this
fact not be sufficient to fasten criminal liability on the
respondents for the offence of cheating."
"To put it in other words, the case of cheating and
dishonest intention starts with the very inception of the
transaction. But in the case of criminal breach of trust, a
person who comes into possession of the movable
property and 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 with dishonest intention or not,
whether the retention involves criminal breach of trust
or only a civil liability would depend upon the facts of
each case."
7 apl 385.21.odt..odt
14. Thus, there is a distinction between criminal
breach of trust and cheating. For cheating criminal intention
is necessary at the time of making of 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 any
property in such a situation both the offences cannot co-
exist simultaneously.
15. In this view of the matter the applicant is charge
with the offence under Section 420 of the IPC as well as 406
of the IPC. Thus, the prosecution cannot say at one breath
that it is criminal breach of trust and another breath that
there was a fraudulent intention since inception as both
offences cannot coexist together. The another ground which
is required to be considered is that on the similar set of facts
the another co-accused Himanshi Prakash Bhagwani is
already acquitted by the trial Court as the prosecution could
not prove the charges against her. Similar allegations are
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levelled against the present applicant also. More over the
allegations in the entire charge-sheet nowhere reveal that the
present applicant has either involved in forgery of the
documents or acceptance of the amount. Only allegation is
that she was working in Crest Technology as H.R. Manager
and the non-applicant No.2 was sent to her for recording
some information. Except that allegation there is no evidence
to connect the present applicant in the alleged incident. For
all above these grounds the application deserves to be
allowed.
16. Hence, I proceed to pass the following order:-
ORDER
(i) The Criminal Application is allowed.
(ii) The First Information Report in connection with
crime No.458/2020 registered with the non-applicant No.1-
Police Station Beltarodi under Sections 406 and 420 read
with 34 of the Indian Penal Code is quashed and set aside to
the extent of applicant- Naina Jatin Chelwani.
7 apl 385.21.odt..odt
17. The criminal application stands disposed of in
the above said terms.
Pending applications, if any, also stand disposed of.
(URMILA JOSHI PHALKE, J.)
manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 24/02/2026 11:08:46
