JUDGMENT :

Kamal Khata, J. 

1) By the Writ Petition No.1248 of 2013 filed under Article 226 of the Constitution of India, the Petitioners seek to set aside the investigation initiated against the Petitioner in Crime Register No. 88 of 2011 registered at Valchand-Nagar Police Station, Baramati Pune.

1.1) On the other hand, by Writ Petition No.2415 of 2017, the Petitioners seek transfer of the investigation of CR number 88 of 2011 to CID Pune or any other investigation agency.

2) For ease of reference, the Petitioners in Writ Petition No. 1284 of 2013 are referred to as the “Chougule and ors” and the Petitioner No.1 – Rohit Shivaji Jadhav in Writ Petition No.2415 of 2017 is referred to as “Jadhav” and Petitioner No. 2 - Indapur Taluka Grape Processing and Winery Co-op. Society Ltd. or Indapur Taluka Draksha Prakriya and Winery Sahakari Sanstha Maryadit as described in the Agreement, is referred to as “Indapur Winery Society” in the foregoing paragraphs.

3) Jadhav on behalf of Indapur Winery Society lodged an FIR with Indapur Police Station for offences punishable under Sections 407, 320 read with Section 34 of the Indian Penal Code, 1860 (‘IPC’) against Chougule and ors. on 25th May 2011 and upon being registered was referred to as CR No.88 of 2011. The relevant contentions recorded in the FIR is as follows:

3.1) The Indapur Winery Society consists of farmers from Indapur Taluka to produce grapes, fruit and vegetables in the said area. They formed a Society and started grape processing and winery unit. In 2008, Chougule and ors. approached them and requested to provide them of the wine and agreed to offer them a good rate. Since the Indapur Winery Society had taken several loans, they agreed to supply of wine to Champagne Indage Limited of which Chougule and ors were directors. They entered into an Agreement dated 19th March, 2008.

3.2) As per the Agreement dated 19th March 2008, all the wine produced by the Indapur Winery Society would be lifted by the Company Champagne Indage Limited. (CIL) on or before 30th November every year and latest by 31st December. Under the Agreement, CIL would pay 50% of the amount in advance and the balance within 45 days from the date of lifting the wine. Having lifted the entire stock of wine namely 32,000 liters for Rs.42,81,567/- from the Indapur Winery Society, CIL did not pay a single penny either as advance or even thereafter. According to the Jadhav, Chougule and ors. had entered into such an Agreement with an ulterior motive and malafide intention to cheat the Indapur Winery Society. Jadhav alleged that, with an intention to cheat, the Indapur Winery Society, Chougule and ors. changed the name of CIL and also disposed of all entire stock lifted from the Indapur Winery Society.

4) Mr. Mishra, learned Advocate for Chougule and ors., submitted that the FIR, as it stands, fails to disclose the specific role attributable to each of the accused in commission of the alleged offence. According to him, the allegations are vague and devoid of particulars.

4.1) He submitted that, a mere breach of the terms of the Agreement, without anything more, cannot give rise to criminal liability in the absence of material indicating dishonest or fraudulent intent from inception. In the absence of such material, the offence of cheating under Section 420 of the Indian Penal Code, 1860 (‘IPC’) is rendered nugatory.

4.2) In support of his submission, reliance was placed upon the judgment of Hon’ble Supreme Court judgment in the case of Vesa Holdings Private Limited & Anr. vs. State of Kerala & Ors. reported in (2015) 8 SCC 293 to contend that the allegations in the complaint must clearly disclose the ingredients of the offence of cheating to sustain an FIR.

4.3) Placing further reliance on the decision in State of Haryana vs. Bhajan Lal reported in AIR 1992 SC 604, he submitted that the offences of criminal breach of trust and cheating, arising out of the same transaction, are distinct and cannot be invoked mechanically togeth