The mere failure to pay for goods in a commercial transaction does not constitute criminal breach of trust or cheating under IPC without evidence of dishonest intention.

ORDER :

1. By this application under Section 482 of the Code of Criminal Procedure (for short “the Code”) the applicant seek quashing of the FIR registered as C.R.No. I-90 of 2011 registered with Madhavpura Police Station, Ahmedabad for the offence punishable under Sections 406 , 420 and 114 of the INDIAN PENAL CODE and further proceedings arising thereof.

2. Brief facts of the case are as under;

2.1 The complainant, residing with his mother and operating Shop No. 1/8 at Madhavpura Marketing Yard, filed a complaint alleging that on 14.03.2011, the applicants—who also run a grain wholesale business named Valina Enterprise—visited his shop. Later, on 16.03.2011, applicant No.1 placed an order over the phone for 50 kg sugar, 60 tins of Tirupati oil and 50 tins of live oil, promising to pay upon delivery. The goods were delivered via a Tata 407 vehicle by the complainant, but made excuses to avoid payment. As a result, the complainant filed a formal complaint on 18.03.2011. Following the complaint, an investigation was conducted, and statements were recorded from the complainant, the driver, laborers and the Investigating Officer. A charge sheet was filed on 20.05.2011.

3. Seeking quashment of FIR, learned advocate Mr. Jeet V. Patel appearing for the petitioner on behalf of learned advocate Mr. Hriday Buch for the petitioner submitted that on plain reading of FIR, it fails to disclose any essential ingredient of criminal breach of trust or cheating defined in section 405 and 415 of IPC having punishment defined in section 406 and 420 of IPC. He would submit that FIR on its face value indicates, the complainant, residing with his mother and operating Shop No. 1/8 at Madhavpura Marketing Yard, filed a complaint alleging that on 14.03.2011, the applicants—who also run a grain wholesale business named Valina Enterprise—visited his shop. Later, on 16.03.2011, applicant No.1 placed an order over the phone for 50 kg sugar, 60 tins of Tirupati oil and 50 tins of live oil, promising to pay upon delivery. The goods were delivered via a Tata 407 vehicle by the complainant, but made excuses to avoid payment. As a result, the complainant filed a formal complaint on 18.03.2011. Following the complaint, an investigation was conducted, and statements were recorded from the complainant, the driver, laborers and the Investigating Officer. A charge sheet was filed on 20.05.2011. It is argued that FIR taken on its face does disclose only commercial transaction between the parties, face of FIR does not spell any of ingredient of criminal breach of trust or cheating. It also argued that by filing the FIR, complainant instead of resorting civil remedy, adopted criminal remedy to pressurize petitioner. In a way, complainant has given color of criminal proceeding to purely civil dispute. Therefore, it is submitted to quash the FIR. In support of his submission, learned advocate Mr. Jeet V. Patel appearing for the petitioner has relied on judgment of Hon’ble Apex Court in the case of Delhi Race Club (1940) Ltd. vs. State of Uttar Pradesh, 2024 INSC 626 .

4. Though notice is served to respondent no.2 - complainant, none remained present.

5. Learned APP for respondent - State would submit that correctness of FIR would be tested in trial but in given circumstances, FIR should not be scuttle at this stage. Therefore, he submits to dismiss the petition.

6. I have heard learned advocates for the parties and perused the record. In the case on hand, quashing petition was filed on filing of FIR against the petitioner. On 24.09.2013, this Court has passed following order :-

"1. Notice returnable on 21.10.2013. Learned APP Mr. R.C. Kodekar waives service of notice on behalf of respondent No.1 – State.

2. It would be open for the applicants to request the concerned Trial Court for adjournment."

7. It is relevant to refer order dated 11.02.2019 by which, Coordinate Bench has confirmed interim relief as under:

“It appears that the first informant is not available at his known addr