[Cites 12, Cited by 0]
Bombay High Court
Kamlesh S/O. Harichand Nagpal vs The State Of Mah. Thr. Police Station ... on 20 February, 2026
2026:BHC-NAG:3155-DB
1 6-J-APL-843-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 843 OF 2021
APPLICANT : Shri Kamlesh s/o Harichand Nagpal,
Aged about : 52 years,
Occu. : Business, R/o Plot No.730/7/8,
Central Avenue Road,
Deshpande Layout, Nagpur.
VERSUS
NON-APPLICANTS : 1. State of Maharashtra
Through Police Station Officer,
Police Station Wathoda, Nagpur.
2. Gajanan S/o Dnyaneshwar Nishankar,
Aged about : 64 years,
Occ : Pensioner, R/o Plot No.71,
Behind Pankaj Kirana Store,
Near NIT Garden, Uday Nagar,
Nagpur.
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Shri S. V. Manohar, Senior Counsel a/w Shri Atharva S. Manohar,
Advocate for applicant.
Shri N. B. Jawade, Additional Public Prosecutor for non-applicant No.1.
Shri D. M. Kale, Advocate for non-applicant No.2.
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CORAM: URMILA JOSHI-PHALKE, J.
DATED : 20/02/2026.
ORAL JUDGMENT :
1. Heard. Admit. Heard finally with the consent of learned
counsel appearing for the parties.
2. The applicant has approached this Court by filing
present application under Section 482 of the Code of Criminal
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Procedure seeking quashing of the FIR in connection with Crime
No.220/2021 registered under Sections 420, 406, 467, 471 and
120-B of the Indian Penal Code and the consequent proceeding
arising out of the same bearing Final Report No.159/2025.
The brief facts which are required for the disposal of
the application are as under :-
3. The Khasra No.39, P. H. No.35 admeasuring 0.95 HR
situated at Mouza Goni, Tahsil Nagpur Rural was originally owned
by the co-accused Sanjay Pendharkar. Out of that, he has
demarcated total 19 plots on 0.55 HR of land and agreed to sell
plot No.7 out of total 19 plots to the complainant for total
consideration amount of Rs.9,07,200/- and also executed a sale
deed on 14/02/2017. Thereafter, time and again, complainant has
paid total consideration of amount of Rs.9,07,200/- to the accused
No.1. Therefore, the agreement of sale is registered on
14/02/2017 as well as accused No.1 executed power of attorney
in favour of the complainant in respect of the said land.
4. It is further alleged that the accused No.1 Sanjay
Pendharkar has agreed to sell plots to the prospective purchasers
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by accepting the amount from them. It is alleged that in the month
of June, 2020, one plot purchaser Ishwar Dhirde has taken search
report for his Plot Nos.1, 2 and 3 and came to know that co-
accused Sanjay has already sold the said plot to the present
applicant and other two persons by way of registered sale deed to
the extent of 0.95 HR of land. Thus, it was alleged that despite he
has sold the said land to the present applicant initially, again he
entered into an agreement and sold the said plot and the present
applicant acted as a power of attorney. On the basis of said report,
police have registered a crime against the present applicant.
5. Heard learned Senior Counsel Shri S. V. Manohar for
the applicant. He submitted that the agreement of sale which
entered into with the present applicant by the original owner is
dated 25/07/2014. Thereafter, the present applicant has issued
public notice on 17/01/2016. Thereafter, the co-accused executed
a modified agreement in favour of the present applicant on
18/02/2016. The Power of attorney was also executed in favour of
the present applicant only to the extent of presentation of the
documents and thereafter, the sale deed was executed in favour of
the present applicant by the original owner by executing a sale
deed on 16/08/2019. Thus, he submitted that the applicant is
purchaser prior in time. In fact, the original owner entered into an
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agreement with the present complainant by dividing his land into
plots. The present applicant is a victim. The agreement which
allegedly executed in favour of the complainant is 3 years later.
Thus, he submitted that as far as the present applicant is
concerned who is the purchaser and by no stretch of imagination,
he can be said to have committed an offence under Sections 420
and 406 of the IPC. He submitted that moreover, in catena of
decisions, now it is held that Sections 406 and 420 of the IPC will
not co-exist. He placed reliance on the decision of this case in
Criminal Application (APL) No.356/2019 and more particularly
observations in Para Nos.13, 14 and 15 of the said judgment and
submitted that by considering the entire investigation papers, no
prima facie case is made out against the present applicant and the
continuation of the criminal proceeding against him would be an
abuse of process of law. In view of that, application deserves to be
allowed.
6. Per contra, learned APP strongly opposed the said
contention and submitted that considering that with the help of
power of attorney, present applicant has with an intention to
deceive the complainant executed the sale deed. In view of that,
prima facie case is made out and hence, application deserves to be
rejected.
5 6-J-APL-843-2021.doc
7. Per contra, learned counsel for the complainant has
invited my attention towards the written complaint filed by the
non-applicant No.2 as well as reply filed before this Court and the
pleading in the civil suit. He submitted that though the land was
non-agricultural one, it was sold out as an agricultural land and
present applicant as well as other co-accused have deceived the
Government also. He submitted that considering that there was
conspiracy between the present applicant and other co-accused
and in pursuance of the conspiracy, other co-accused entered into
an agreement and therefore, application deserves to be rejected.
8. On hearing both the sides and on perusal of the entire
investigation papers, it reveals that the present applicant is the
purchaser. It also reveals from the record that the present
applicant has purchased the said land prior in time and the power
of attorney was executed in his favour only to the extent of
presentation of the documents.
9. Before entering into the merits of the case, it is
necessary to see the parameters which are laid down by the
Hon'ble Apex Court in the case of State of Haryana & Ors. Vs.
Bhajan Lal & Ors., 1992 Supp.(1) SCC 335 , which reads as
under :-
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"(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."
10. Thus, the parameters which are laid down by the
Hon'ble Apex Court are concerned, while considering the
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application for quashing of the FIR, whether there is prima facie
case or not that is to be looked into and if the prima facie case is
not made out, the powers under Section 482 of Cr.P.C. requires to
be exercised.
11. On examination of the entire investigation papers, there
is no dispute to the fact that the present applicant has agreed to
purchase the property owned by the other co-accused admeasuring
0.95 HR from the Khasra No.39 and P.H.No.35, the said agreement
was executed on 25/07/2014. Thereafter, the public notice was
issued in the newspaper on 17/01/2016. Again, modified
agreement was executed in favour of the present applicant and
subsequent to that, the power of attorney was also executed in
favour of the present applicant. On going through the power of
attorney, it reveals that the power of attorney was executed only to
the extent of presentation of the documents and subsequently, the
sale deed was executed in favour of the present applicant on
16/08/2019. Thus, the documents on record sufficiently show that
on 16/08/2019 itself, the sale deed was executed in favour of the
applicant and the possession was handed over to him. As per the
allegations in the complaint, the present complainant entered into
an agreement subsequent to the agreement which was entered
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with the present applicant i.e. agreement dated 14/02/2017. As
far as the allegations regarding the misuse of the power of
attorney or the forged power of attorney is concerned, the accused
No.1 Sanjay Pendharkar nowhere alleges that the power of
attorney which was used for the presentation of the documents is
a forged power of attorney. Therefore, the contention of the
learned counsel that on the basis of forged power of attorney, the
present applicant has executed the documents is not sustainable.
12. On perusal of the entire charge sheet, it reveals that the
present applicant is one of the purchasers and i.e. also purchaser
prior in time. Therefore, question would arise whether such an act
would constitute an offence punishable under Sections 420, 467
and 471 of the IPC. Even it is assumed that the property was sold
by the persons after executing the agreement and the sale deed in
favour of the present applicant to the third person, then also,
present applicant is only a purchaser of the said property and
therefore, interpreting the ingredients of the offence criminally, the
applicant cannot be said to be associated with the offence of
cheating. It is settled principle of law that for attracting the
offence under Section 420 of the IPC what is important is
intention to deceive right from the inception. In the present case,
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there is no such averment nor can it be inferred from the
meaningful reading of the First Information Report and supporting
the documents that there was intention nurtured by the applicant
from the inception of the transaction itself. Therefore, in my view,
offence under Section 420 of the IPC is not made out.
13. The prosecution has further come with a case that the
applicant has also committed an offence under Section 406 of the
IPC. The ingredients of offence punishable under Section 406 of
IPC are - 1] There must be entrusting a person for property or
dominion over property. (2) the 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) any direction of law
prescribing the method in which the trust is discharged or (ii)
legal contract touching the discharge of trust.
14. Similarly to constitute an offence under Section 420 of
IPC, there has to be (1) Deception of any person, either by making
a false or misleading representation or by other action or by
omission; (2) Fraudulently or dishonestly inducing any person to
deliver any property, or (3) The consent that any person shall
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retain any property and finally intentionally inducing that person
to do or omit to do anything which he would not do or omit to do.
15. Thus, in both the aforesaid Sections, mens rea i.e.
intention to defraud or the dishonest intention must be present,
and in the case of cheating it must be there from the very
beginning or inception.
16. On the plain reading of the complaint fails to spell out
any of the aforesaid ingredients noted above. If it is a case of the
Complainant that offence of criminal breach of trust as defined
under Section 405 of IPC, punishable under Section 406 of IPC, is
committed by the accused, then in the same breath it cannot be
said that the accused has also committed the offence of cheating as
defined and explained in Section 415 of IPC, punishable under
Section 420 of IPC.
17. The Hon'ble Apex Court in the case of Delhi Race Club
Vrs. State of Uttar Pradesh (2024) 10 SCC 690 , wherein the
Hon'ble Apex Court has held in para 39 which reads as under:
"39. 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
11 6-J-APL-843-2021.doc
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
Chamaria v. Bishun Kumar Surekha & Ors., reported in
(1973) 2 SCC 823 as under:
18. To put it in other words, the case of cheating 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.
19. Thus, the Hon'ble Apex Court in catena of judgments
has considered 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
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when the offence is said to have been committed. Therefore, it is
this intention, which is the gist of the offence.
20. Mere allegation against the present applicant is that he
entered into conspiracy with the other co-accused and in
pursuance of that conspiracy, he has committed the said offence.
Admittedly, no direct evidence would be available as far as
conspiracy is concerned, when there has to be some circumstances
on record to show that they entered into an agreement to do an
illegal act and in pursuance of that, they entered into transaction.
Thus, the ingredients of the offence punishable under Section 120-
B of the IPC are also absent in the present case.
21. Thus, I am of the view that the dispute is essentially
pertaining to the execution of the sale deed in favour of the
complainant. Therefore, it is at the most as far as the present
applicant is concerned, which is of civil nature. Now, there is
growing tendency of converting civil matters into criminal one and
the litigants resort to filing of the FIR without there being any
offence or mens rea in that regard. In view of that application
deserves to be allowed. Accordingly, I proceed to pass following
order :-
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ORDER
i] The application is allowed.
ii] The FIR in connection with Crime No.220/2021
registered under Sections 420, 406, 467, 471 and 120-B
of the Indian Penal Code and the consequent proceeding
arising out of the same bearing Final Report No.159/2025
is hereby quashed and set aside to the extent of present
applicant.
22. The application is disposed of.
23. The applications, pending if any, are disposed of
accordingly.
[JUDGE]
Choulwar
Signed by: V.M. Choulwar (VMC)
Designation: PS To Honourable Judge
Date: 24/02/2026 10:47:00
