1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicantaccused has prayed for anticipatory bail in connection with the FIR being C.R. No. I– 110/2018 registered with Kalupur Police Station, Ahmedabad City for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code.

2. Heard learned Senior Counsel, Mr. S.V. Raju appearing with learned counsel, Mr. Bhadrish Raju for the applicant, learned APP Mr. L.B. Dabhi for the respondent – State and learned advocate, Mr. A.S. Timbalia for the original complainant.

3. The gist of the allegations leveled in the FIR are as under, The accused persons in connivance with each other have reposed the trust of the complainant and purchased goods worth of Rs.9,52,08,402/from the complainant and did not pay the said amount and thereby the accused have committed an offence of cheating and criminal breach of trust.

4. Learned Senior Counsel, Mr. S.V. Raju appearing for the applicant submits that the applicant is working as broker in the Cloth Industries and he used to charge the brokerage on the transactions made between the parties. It is submitted that the FIR in question is filed against the applicant with a view to extort money towards the monetary transaction made by the complainant with other accused persons. It is submitted that the dispute between the parties is of civil nature. It is submitted that if the complainant has sold the goods to the concerned accused and if the amount is not paid for the said transaction by the concerned accused, the complainant can file civil proceedings before the competent civil court. It is further submitted that even otherwise, the alleged offences are punishable with imprisonment upto seven years and, therefore considering the law laid down by the Hon’ble Supreme Court in case of Arneshkumar Vs. State of Bihar, reported in (2014) 8 SCC 273 this Court may exercise the discretion in favour of the applicant.

5. It is further submitted that the transactions in question are in the nature of sale transaction and, therefore as per the decision rendered by the Hon’ble Supreme Court in case of State of Gujarat Vs. Jaswantlal Nathalal, reported in AIR 1968 SC 700, in a sale transaction, even if it is alleged that the goods have been diverted and there is no entrustment, no criminal breach of trust can be made out. At this stage, it is further contended that so far as the offence of cheating is concerned, the original buyers have made the payment to the complainant through their bank accounts and when the cheques issued by the concerned coaccused are dishonoured, the complainant has issued legal notices to the concerned coaccused under the provision of Section 138 of the Negotiable Instrument Act, 1881, hence, allegation of cheating may not be accepted.

6. At this stage, it is submitted that another FIR is filed against one of the buyers viz., Rishabh Enterprise by some other party, which clearly establishes that the buyer, Rishabh Enterprise existed.

7. Learned counsel thereafter would submit that the complainant has changed his stance to suit himself on several occasions and the allegations leveled by the complainant in the FIR are inconsistent with further statement of the complainant recorded by the Investigating Officer. Learned counsel referred to the allegations made in the FIR and pointed out that the original version of the complainant is that the goods were delivered to the respective parties through Dilip and Tejendra and they used to get delivery chalan signed through respective parties, however in the further statement recorded by the Investigating Officer, the complainant has stated that the goods were taken by Dilip to the present applicant and that the delivery chalans were signed by the applicant and that also payments were made by the applicant to the original complainant. At this stage, learned advocate has referred to the notice issued under Section 138 of the Negotiable Ins