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2024 Supreme(Online)(GUJ) 22601
HIGH COURT OF GUJARAT
DIVYESH A. JOSHI, J
JIVRAJBHAI BHIKHABHAI GADHIYA – Appellant
Versus
STATE OF GUJARAT – Respondent
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 23472 of 2019
MR RATHIN P RAVAL(5013) for the Applicant(s) No. 1, MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
The court held that mere non-payment of a debt does not constitute criminal breach of trust or cheating, emphasizing the need for specific ingredients to establish such offences.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 482 - Indian Penal Code, 1860 - Sections 406, 420, 409, and 114 - Quashing of FIR - The applicant, not being a partner of the firm and having no direct involvement in the transaction, sought to quash the FIR registered against him. The court found that the allegations did not establish the essential ingredients of the offences charged, particularly the lack of entrustment necessary for criminal breach of trust. The court emphasized that mere non-payment of a debt does not constitute a criminal offence. (Paras 1, 4, 10, 11)
(B) Criminal Law - Ingredients of Offences - The court delineated the essential elements required to establish offences under Sections 406 and 420 IPC, highlighting the necessity of mens rea and the distinction between civil and criminal liability. (Paras 24-36)
Facts of the case:
The applicant was accused of being involved in a business transaction where goods worth Rs. 8,82,000/- were supplied, but payment was not made. The applicant claimed he had no connection with the transaction and was falsely implicated based on statements from co-accused.
Findings of Court:
The court found no evidence of the applicant's involvement in the alleged offences and determined that the FIR was based on insufficient grounds.
Issues: The main issues were whether the applicant was correctly implicated in the FIR and whether the allegations constituted a criminal offence.
Ratio Decidendi: The court ruled that the FIR lacked the necessary elements to support the charges of criminal breach of trust and cheating, emphasizing that a mere failure to pay a debt does not amount to a criminal offence.
Result: FIR quashed against the applicant.
ORAL ORDER
1. By way of preferring present application under section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused No.3, seeks to invoke the inherent powers of this Court, inter alia, praying for quashing of the FIR being C.R.No.I-142 of 2019 registered with Keshod Police Station, District Junagadh for the offence punishable under Sections 406, 420, 409 and 114 of the Indian Penal Code, qua the applicant.
2. Heard learned advocate Mr. Rathin P. Raval for the applicant and learned APP Mr. Soaham Joshi for the respondent - State.
3. Learned advocate Mr. Rathin Raval submits that the complainant is a businessman and he supplied goods of groundnut worth Rs.8,82,000/- to accused Nos.1 and 2 - partners of Shrinath Traders and at the time of entering into transaction, accused No.1 assured that he will pay the said amount within two to three days. However, as the complainant did not get his money, he demanded the said amount from the accused Nos. 1 and 2 but by assigning one or another reason, accused Nos. 1 and 2 evaded to pay the said amount and thereafter they also switched off their mobile phones. He further submits that at the time of demanding the amount, number of times conversation took place between the complainant and accused persons and at the relevant point of time complainant came to know that all the four accused persons are partners of the said partnership firm. Therefore, complaint is registered against all the four accused persons wherein applicant accused is shown as accused No.3.
4. Learned advocate Mr. Raval submits that present applicant is not directly or indirectly connected with the commission of crime. He is also not the partner of the said partnership firm. The applicant is also not having any business relations with the other accused persons. He further submits that in fact the accused No.4 - broker had taken Rs.5 lakh from the applicant and on number of occasions reminders were sent by the applicant to accused No.4 to repay the amount but instead of repaying the said amount, he administered threat to the applicant that if applicant will demand the said amount in that event he has to face dire consequences and he will not return the said money. Learned advocate Mr. Raval has further submitted that if the Court would make cursory glance upon the allegations levelled against the applicant in the FIR in question, in that event, it would be found out that only on the basis of information provided by other co-accused - accused No.4 present applicant accused has been arraigned as an accused by the complainant. The present applicant has never got any opportunity to discuss about any business transaction with the complainant and said fact itself proves that solely on the count of certain information provided by accused No.4, present applicant has been shown as accused in the body of the FIR. Learned advocate Mr. Raval further submits that if the recitals of the allegations levelled in the body of the FIR are to be read in toto, in that event, it would be found out that the transaction took place between the accused persons and complainant is commercial transaction and complainant has tried to give criminal colour to the civil dispute. He further submits that if after supplyment of certain goods to the accused persons, complainant could not be able to recover the amount of the said goods, the complainant has to file civil suit to recover the said amount but instead of instituting civil suit, criminal complaint is registered against the accused persons to exert pressure upon the accused persons and with a sole intent to recover the amount. Learned advocate Mr. Raval further submits that if the allegations levelled against the present applicant are to be read in its entirety, in that event, it would be found out that basic, essential and requisite ingredients of the charges levelled against the applicant are found missing. Hence, prosecution instituted against the present applicant is required
