The distinction between civil liability and criminal liability is critical; in cases involving mens rea and actions constituting conspiracy or fraud, criminal prosecution is warranted despite the potential civil nature of the dispute.

ORDER :

HASMUKH D. SUTHAR, J.

1) By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), the applicants have prayed to quash and set aside the FIR being C.R.No.11196041240421 of 2024 registered with Akota Police Station, Vadodara, for the offence under Sections 406 and 120(b) of INDIAN PENAL CODE , 1860 and other proceedings arising therefrom qua them.

2) The accused No.1 - Atonu Datta and present petitioner - Heen Thakkar, in collusion with each other, hatched a conspiracy with the intent to commit financial embezzlement and cheating. During his tenure at the complainant company, Atonu Datta used the name of the complainant company's unit - Alceon, to establish two companies under the names “Alceon Meditech” and “Design Logic.” The accused misled the customers of the complainant company and diverted payments that were due to the complainant from client companies into the bank accounts of his own companies and other personal accounts, totaling an amount of Rs.1,33,69,750.82/-. Furthermore, by misusing the official email ID and laptop provided by the complainant company to the petitioner, the accused carried out a technically sophisticated fraud against the complainant Company. In this regard, an FIR came to be filed against Atonu Datta and the present petitioner.

3) Learned counsel for the petitioner has submitted that no charge of cheating is levelled against the petitioner and no material is collected. The petitioner and other 16 were the employees of the complainant company. The petitioner had tendered her resignation which was accepted by HR Manager of the company. No property was entrusted to the petitioner and had not breached any trust. Therefore, she has not committed any offence as alleged against her. The complaint is cleverly drafted only with a view to cause harassment to the petitioner. The petitioner has no past antecedent. He has also submitted that, this is a simple case of breach of service contract and for that, civil action is required to be initiated. Therefore, he has submitted that, in case of breach of contract, no prosecution is permissible under criminal law as the dispute is civil in nature. Every breach of contract would not give rise to the offence of cheating. Further, there is no material to prove the allegation of conspiracy. Therefore, present FIR is filed, giving a cloak of criminality.

4) Over and above the above submissions and to buttress his arguments, learned counsel for the petitioner has also relied on (1) Hari Prasad Chamaria Vs. Bishun Kumar Surekha & Ors, reported in 1973 (2) SCC 823 , (2) Vijay Kumar Ghai vs. State of W.B. , reported in 2022 (7) SCC 124 , (3) Harmanpreet Singh Ahluwalia Vs. State of Punjab , reported in 2009 (7) SCC 712 , (4) Rajiv Thapar Vs. Madan Lal Kappor , reported in 2013 (3) SCC 330 , (5) Arvindbhai Maganlal Master Vs. State of Gujarat & 1, reported in 2014 SCC Online Guj. 13301 , (6) Kairunaben Jamaluddin Kadri Vs. State of Gujarat & Ors, reported in 2017 (4) GLR 3553 , (7) Naresh Kumar & Anr. Vs. State of Karnataka, reported in 2024 Online SC 268 (8) Vesa Holdings Pvt. Ltd. & Anr. Vs. State of Kerala, reported in 2015 (8) SCC 293 and (9) Sarabjit Kaur Vs. State of Punjab & Ors, reported in 2023 (5) SCC 360 .

5) Per contra, learned APP for the State has opposed the present petition and contended that, the petitioner is named in the FIR. Now chargesheet is filed and sufficient material is collected. Statement of the witnesses have been recorded, which clearly suggests the involvement of the petitioner. This is not a case where without evidence and material, the petitioner has been falsely implicated in the offence. Therefore, present petition does not deserve any consideration.

6) Mr. D. M. Varandani, learned counsel for the complainant has adopted the arguments made by ld. APP and contended that, accused No.1 Atonu Datta used the name of the complainant company's unit – Alceon and established two c