JUDGMENT :

1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant seeks to invoke inherent powers of this Court, praying for quashment of the chargesheet, filed in connection with the FIR being C.R.No.I-37 of 2016 registered with Gorva Police Station, Vadodara for the offences punishable under Sections 406, 420, 504 and 506(1) of the Indian Penal Code.

2. Facts and circumstances giving rise to file present application are that the applicant - Nilesh Seth is the Director and/or owner of M/s.Nivida Web Solution Pvt. Ltd. doing business in the I.T. Sector at Vadodara. Respondent no.2 – Future Link Visa Consultant Pvt. Ltd. is doing Visa Consultancy Work and rendering coaching for different foreign courses. Respondent no.2 approached the applicant for designing and development of a website for online application system for CAIPS/FOSS/GCMS. Parties entered into mutual agreement on 13.02.2015 and 30 days’ time limit was agreeable to the parties. Initial payment as agreed was made by the respondent no.2- complainant. Respondent no.2 lodged an FIR against the applicant under Sections 406, 420, 504 and 506(1) of the Indian Penal Code stating inter alia that despite making a full payment, the applicant herein failed to develop website as per the terms and conditions of the agreement and repeatedly asked to pay more amount despite the payment of additional amount, the applicant herein failed to provide software for the web-portal and also did not redesign the website. It is further alleged that the complainant was lured to part with the money and with dishonest intention, made a false promise to develop the website, thereby, he has committed offence of cheating and criminal breach of trust.

3. In the aforesaid facts, the FIR came to be registered against the applicant herein and after completion of investigation, chargesheet came to be filed against the applicant for the offences as referred hereinabove.

4. The applicant herein preferred the instant application invoking inherent powers of this Court, seeking quashment of the criminal proceedings mainly on the ground that merely a breach of contract cannot give rise to a criminal proceedings for cheating and criminal breach of trust and therefore, the allegations levelled, do not prima facie constitute an offence under Sections 406, 420, 504 and 506(1) of the Indian Penal Code.

5. This Court has heard Mr.J.M. Malkan, learned advocate appearing for and on behalf of the applicant herein, Mr.P.P. Majmudar, learned advocate appearing for respondent no.2 and Ms.Vrunda Shah, learned APP for the respondent-State.

6. Mr.J.M. Malkan, learned advocate has urged that in order to attract the offence of criminal breach of trust, defined in Section 405 of the IPC, the complainant has to prima facie establish that the accused must have been entrusted with the property and must have misappropriated the property in violation of the trust and therefore, an offence under Section 405 can be said to have been committed only when all the ingredients of offence as defined in the statute are found to have been satisfied. In the facts of present case, nothing being alleged that at the time of making money, fraudulent intention was there on the part of applicant-accused.

7. Mr.Malkan further submitted that in the facts of present case, it is alleged that the applicant accused has breached the terms of the contract, however, every failure in complying with the terms of the agreement, would not attract the provisions of cheating and criminal breach of trust.

8. Mr.Malkan further submitted that looking to the averments made in the complaint, essential ingredients of cheating as defined in Section 415 of the IPC are not attracted; that before lodgement of the FIR, respondent no.2-complainant served a notice through his lawyer called upon the applicant herein either complying with the conditions of the contract or return back the paid amount. Pursuant to the notice, the applican