ORDER

Heard Mr. N J Dutta, the learned counsel for the petitioner. Also heard Mr. M P. Goswami, the learned Addl. Public Prosecutor appearing on behalf of the State respondent and Mr. S C Biswas, the learned counsel appearing on behalf of informant.

2. This is an application u/s 528 read with Section 438 and Section 442 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 praying for setting aside and quashing of the PRC Case No. 362/2025 pending before the learned SDJM(M), South Salmara Mankachar and arising out of impugned Charge Sheet No. 65/2025 dated 31.10.2025 (corresponding to Sukchar P.S. Case No. 41/2025 u/s 61(2)/318(4)/316(2) of BNS, 2023.

3. It is submitted by Mr. Dutta that only for personal grudge the FIR has been lodged against the present petitioner with some false and concocted allegation wherefrom it is also seen that the cause of action of the case started from the 1st week of June, 2023, when, it is alleged that out of an agreement the present petitioner promised to deliver 100 nos. of Roof Top Solar Panel, per cost about Rs. 7,000/- and pursuant to that agreement the present accused/petitioner had fraudulently taken away Rs. 1,61,000/- from him with a promise to provide 32 nos. of solar panels within 1 week. But, in spite of receiving the entire amount of money i.e. Rs. 1,61,000/- the accused/petitioner neither provided the solar panels to the informant nor returned back the money. But, he submitted that there is no explanation as to why the FIR was lodged after one year of the incident, when the money was delivered to the present petitioner. He further raised that in the Election of Anchalik Panchayat Member for Gaon Panchayat Constituency, the informant had lost the election and son of the petitioner got elected of the said Anchalik Panchayat Election and for that grudge also the FIR has been lodged with false and concocted story.

4. Mr. Dutta further raised the issues that the Charge Sheet is submitted u/s 61(2)/318(4)/316(2) BNS but, there is no ingredient to attract Section 61(2), which is criminal conspiracy, as the case has been lodged only against the present petitioner and there is no other person to have any criminal conspiracy against the informant. Apart from that he submitted that 318(4) and 316(2) is cheating and criminal breach of trust cannot co-exists together. But, the Charge Sheet has been filed under those sections and the cognizance of the offence is also taken by the learned Court below under the said section of law. In that context, Mr. Dutta relied on a decision of Hon’ble Apex Court in the case of Delhi Race Club (1940) Limited and Others v. State of Uttar Pradesh & Another, reported in (2024) 10 SCC 690 and basically emphasized on paragraphs 39, 40, 43 & 55 which reads as under:-

“39. Every act of breach of trust may not result in a penal offence of criminal breach of trust unless there is evidence of manipulating act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person may seek his remedy for damages in civil courts but, any breach of trust with a mens rea, gives rise to a criminal prosecution as well. It has been held in Hari Prasad Chamaria v. Bishun Kumar Surekha & Ors., reported in (1973) 2 SCC 823 as under:

“4. We have heard Mr. Maheshwari on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 Penal Code, 1860. For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. Even after making that allowance, we find that the complaint does not disclose the commission of any offence on the part of the respondents under Section 420 Penal Code, 1860. There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs. 35.000/- There is also nothing to indicate that the respondents indu