The main legal point established in the judgment is that a mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction.

JUDGMENT

M. S. Sonak, J. - Heard Mr. Nitin Sardessai, learned Senior Advocate with Mr. Vibhav R. Amonkar, learned Counsel for the Petitioner, Mr. Pravin N. Faldessai, learned Additional Public Prosecutor for the respondents No.1 and 2 and Mr. E. Abrol with Mr. Jatin Ramaiyya, learned Counsel for the respondent No.3.

2. Rule. The Rule is made returnable forthwith at the request and with the consent of the learned Counsel for the parties. Even otherwise, by our order dated 25.03.2021, we had made it clear that this writ petition will be listed for final disposal after three weeks.

3. This petition is for quashing FIR bearing No.144 of 2019 and the consequent criminal proceedings initiated in the Court of Judicial Magistrate First Class, Mapusa qua the petitioner herein. The petitioner, in terms of the impugned FIR, has been charged with offenses under Sections 406 and 420 r/w. Section 34 of the Indian Penal Code.

4. Mr. Sardessai, learned Senior Advocate for the petitioner submits that this is a case where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not constitute any offense or make out any case against the petitioner-accused. He submits that this is a civil dispute having no criminal profile whatsoever at least qua the petitioner. He submits that even the allegations in the FIR/complaint at the highest suggest that there was some breach of contract. There are no allegations that suggest any dishonest intention on the part of the petitioner at the very time when he entered into the contract in question. He submits that at a later point of time, the parties executed an agreement, in terms of which the petitioner was expressly excluded from discharging the contractual obligations, and in fact, the complainant-respondent No.3 along with the remaining accused persons promised to make payments or refunds to the petitioner. He submits that the continuance of criminal proceedings against the petitioner would amount to an abuse of the process and therefore, this is a fit case where the impugned FIR must be quashed and the criminal proceedings in pursuance of the same are stopped as against the petitioner. Mr. Sardessai relies on State of Haryana Vs. Bhajan Lal,1992 Supp1 SCC, International Advanced Research Centre For Powder Metallurgy And New Materials (Arch) And Others Vs. Nimra Cerglass Technics Private Limited And Another, (2016) 1 SCC 348 and Anand Kumar Mohatta Vs. State (Govt. of Nct of Delhi, (2019) 11 SCC 706 in support of his contentions.

5. Mr. E. Abrol, the learned Counsel for respondent No.3 submits that there is more than sufficient material on record which establishes the complicity of the petitioner in the offenses under Sections 406 and 420 of the IPC. He submits that there is enough material on record to establish that the petitioner, right from the beginning, with a dishonest intention, induced the complainant-respondent No.3 to invest an amount of Rs. 76,50,000/- for operating in the hotel business at La Habbana Beach Resort, Calangute, Bardez-Goa, but thereafter failed to admit the complainant as a partner in the hotel business or even failed to allow the complainant and her husband to effectively undertake the hotel business thereby committing the offenses of criminal breach of trust and cheating. He referred to the various agreements to elaborate on the complicity of the petitioner in the transactions relating to the hotel business and submitted that there was sufficient material on record to draw the inference that the petitioner, right from the beginning, had a dishonest intention of cheating and criminally breaching the trust reposed in him by the complainant-respondent No.3. Mr. Abrol submitted that quashing of an FIR can be allowed only in rare circumstances and this was not a fit case for quashing of the FIR.

6. Mr. Faldessai learned Additional Public Prosecutor also submitted that the charge sheet has been filed in the matter and