Absence of 'entrustment' negates prosecution for Section 406 IPC, while sufficient allegations of deception necessitate continuation of Section 420 IPC charges.

ORDER :

L.VICTORIA GOWRI, J.

Criminal Original Petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (corresponding to Section 482 Cr.P.C.), to call for the records pertaining to the final report in C.C.No.1600 of 2025 on the file of the learned Judicial Magistrate–VI, Madurai, arising out of Crime No.32 of 2024 dated 18.01.2024 on the file of the first respondent police, and to quash the same as illegal.

Preface:

2. The petitioner is the sole accused in C.C.No.1600 of 2025, pending on the file of the learned Judicial Magistrate–VI, Madurai, arising out of Crime No.32 of 2024 registered on 18.01.2024. The final report alleges commission of offences under Sections 406 and 420 IPC (corresponding to Sections 316 (2) and 318(4) of the Bharatiya Nyaya Sanhita, 2023).

3. The petitioner seeks quashment of the final report contending that the dispute is purely civil/money transaction and that a civil suit O.S.No.12 of 2020 (filed by the petitioner against the second respondent) ended in petitioner’s favour and that the ingredients of Sections 406 and 420 are not made out.

Case of the prosecution:

4. The prosecution case, as reflected in the complaint, FIR, statements recorded during investigation (including the statement under Section 161 Cr.P.C., 1973), and the final report, is that the second respondent/de facto complainant paid an aggregate sum of Rs.8,13,000/- to the petitioner on various occasions on the representation that the petitioner would sell certain plots/land stated to be in the petitioner’s name.

5. It is the further case of the prosecution that, the petitioner had already obtained bank loans and mortgaged the property/properties which were promised to be sold to the de-facto complainant. And that on suppression of such fact, the petitioner induced the de facto complainant to part with money and thereafter failed to execute the sale and did not return the money, thereby committing criminal breach of trust and cheating.

Case of the petitioner / grounds for quash:

6. The petitioner contends that there was no entrustment, no formal sale agreement, and that the complaint is a retaliatory step after the petitioner succeeded in O.S.No.12 of 2020 against the de facto complainant. It is also urged that the alleged transaction is said to be of the year 2019, whereas the FIR was lodged only on 18.01.2024, after about five years.

7. The petitioner placed reliance on the decision of the Hon’ble Supreme Court inDelhi Race Club (1940) Ltd. v. State of U.P. (2024) 10 SCC 690, to contend that in the absence of entrustment, Section 406 cannot be attracted and further that, on the facts, the dispute is at best contractual/civil and does not disclose the offence of cheating. The petitioner also invoked the principles in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, contending that the case falls within the categories warranting interference under inherent jurisdiction.

Submissions:

8. The learned counsel for the petitioner submitted that the final report itself shows the dispute to be essentially a money transaction arising from alleged non-execution of sale and that the petitioner had already obtained a civil decree in O.S.No.12 of 2020 against the de facto complainant. The learned counsel insisted that the criminal case is an abuse of process and that both Sections 406 and 420 are unsustainable and will not get along together. The learned counsel laid particular emphasis on the proposition that Section 406 requires “entrustment” and that, even otherwise, the facts do not show dishonest intention at inception.

9. The learned Additional Public Prosecutor sub