Gujarat High Court
Kishan Hakimsing Ujela vs Ajay Hariprashad Vadodariya on 6 December, 2023
NEUTRAL CITATION
R/SCR.A/13558/2023 ORDER DATED: 06/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 13558 of 2023
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KISHAN HAKIMSING UJELA
Versus
AJAY HARIPRASHAD VADODARIYA
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Appearance:
MR SP KOTIA(5687) for the Applicant(s) No. 1
for the Respondent(s) No. 1
MS MONALI BHATT, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 06/12/2023
ORAL ORDER
1. By way of this petition, the petitioner has prayed for quashing
and setting aside the order dated 02.11.2021 passed by ld. 7 th Addl.
Chief Judicial Magistrate, Bhavnagar in Criminal Inquiry Case
No.3/2020, which came to be confirmed by learned Principal
Sessions Judge, Bhavnagar, in Criminal Revision Application
No.615/2021 vide order dated 07.06.2023.
2. Mr. S.P. Kotia, learned counsel for the petitioner has
contended that the learned Courts below have committed error in
passing the impugned orders though the contract was on record and
inquiry report filed under Section 202 of Cr.P.C in in favour of the
petitioner, wherein, it is clearly stated that contract of colour work is
executed and the offence is made out. Therefore, the learned
Magistrate has ignored the material facts as well as the bills and
contract and erred in dismissing the complaint filed by the
Petitioner. Even learned Sessions Judge has also not properly
appreciated the fact that the contract came to be executed and
accused is having tendency to commit such type of offence and he
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R/SCR.A/13558/2023 ORDER DATED: 06/12/2023
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cheated many labourers. Contract of labour works between the
complainant and accused executed and labour work came to be
entrusted. He submitted that the amount of labour work of Rs.7.50
lakhs is due. Out of the said amount, Rs.1.50 lakh came to be paid
and remaining amount is yet to be paid. He also submitted that the
learned Courts below have ignored the fact that prima facie offence
of breach of trust and cheating is made out. The main ground of
learned counsel for the petitioner is that though the offence is prima
facie made out, ld. trial court has not properly dealt with the bills
and learned Sessions Judge has also not dealt with all contentions
raised by the petitioner.
3. Mr. Kotia has relied on the judgment rendered in case of
TATA, Chairman, TATA Iron and Steel Company Ltd. Vs. Mrs. Payal
Kumar, reported in 1987 Cri.L.J 447 (Del.).
4. Having heard learned counsel for the petitioner and perusing
the impugned orders passed by learned Courts below, prima facie it
appears that police inquiry report came to be filed in Criminal
Inquiry Case No.3/2020 and the statement of the witnesses and
complainant came to be recorded. After perusing the statements,
learned Magistrate came to a conclusion that no offence is made out
as the complaint is filed against Vadodariya Aegis in 2020 and color
work contract for the building was given in the year 2016 and work
was completed in the year 2018. Total bill amount of Rs.7.5 lacs.
Out of the said amount, Rs.1.5 lacs was paid.
5. Considering the aforesaid facts of the case, it appears that as
part payment has been made, then there was no any intention from
inception to cheat the complainant. So far as second aspect is
concerned, the petitioner has not proved on record that the contract
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R/SCR.A/13558/2023 ORDER DATED: 06/12/2023
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is executed even though bills are produced on record before the
learned trial Court. Learned courts below have rightly come to the
conclusion that on record it is not proved that when contract was
executed and considering the provisions of Sections 406 and 420 of
Indian Penal Code, 1860, there is no iota of evidence to suggest that
the offence is made out for criminal breach of trust. Further, the
judgment as relied upon by learned counsel for the petitioner would
not avail any assistance to the case on hand. For the offence of
cheating, essential aspect is that intention to cheat should be from
inception and no any evidence or any allegation qua
misrepresentation is made, so court come to the conclusion that the
offence is committed.
6. In the case of Rajnikant Ambalal Patel Vs. State of
Gujarat, reported in 1987 (2) GLH 334, this Court held that the
offence of criminal breach of trust and cheating both cannot go
together and further observed thus:-
"For constituting an offence of cheating, it is necessary that the
person should be deceived and fraudulently or dishonestly induced
to deliver the property or to consent to retain the property or
intentionally induced to do or omit to do anything which he would
not do or omit to do if he were not so deceived, and such act or
omission caused or likely to cause damage or harm to that person
in body, mind, reputation or property. Deception of the person is
the main ingredient of the offence of cheating, but that by itself is
not sufficient to constitute the offence of cheating, and it is further
required to establish that the person deceiving other person,
fraudulently or dishonestly induced that person so deceived to
deliver the property to any person or to consent that any person
shall retain any property, or intentionally induce the person so
deceived to do or omit to do anything which he would not do or
omit to do if not deceived...... "
7. Further, the dispute is of civil in nature. Considering the
evidence collected by the Investigating Officer as well as going
through the record, it reveals that learned Courts below have not
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committed any error in absence of any material like contract, bills
etc.
8. For the foregoing reasons, present petition does not deserve
any consideration and is hereby dismissed at admission stage.
(HASMUKH D. SUTHAR,J)
SUCHIT
