ORAL ORDER

1. Rule. Learned APP waives service of notice of Rule for respondent State. None appears for respondent No.2.

1.1 By this application under Section 482 of the Code of Criminal Procedure (for short “the Code”), the applicant seeks quashing of the FIR registered as C.R. No.11204046210997 of 2021 with Nadiad Town Police Station for the offence punishable under Sections 420 and 114 of the Indian Penal Code and further proceedings arising thereof.

2. Heard learned advocate Mr.Raxit Dholakia for the petitioner and learned APP Mr.Soham Joshi appearing for the respondent - State.

3. Arguing for quashment of the impugned FIR, learned advocate Mr.Dholakia for the petitioner submit that first of all the transaction alleged in the FIR is of civil nature between the parties and the role of the present petitioner in FIR is that of guarantor who gave guarantee to repay the amount if Dr.Bhavin Parikh would not pay the amount for purchase of mobile. He would further submit that if FIR is taken at its face value, it does not establish the offence under Section 415 i.e. of cheating. The present petitioner is not beneficiary of the alleged transaction. Since the essential ingredients of Section 420 is not attracted in the present case, the petition may be allowed and impugned FIR may be quashed.

4. Learned APP Mr.Joshi while referring to allegation under Section 114 of IPC levelled in the FIR, would submit that even if petitioner has not played active role in commission of the offence, he was hand-in-glow with the main accused Dr.Bhavin Parikh. Therefore, looking to facts, trial is required to assess the allegations levelled in the FIR and contentions raised by learned advocate for the petitioner. He would submit to dismiss this petition.

5. I have heard learned advocates for both sides. I have also perused the papers of record. To appreciate the argument of learned advocate Mr.Dholakia, let me refer relevant portion of the FIR which is in vernacular language Gujarati and the same is translated into English and reproduced as under : “On last 20/06/2019, I was present at my above mentioned shop. At that time Dr. Bhavinbhai R. Parikh of Shriji Hospital, Manjipura Road, Taluka Nadiad, came to my shop. As he wanted to purchase a mobile phone of Samsung company, various models of mobile were shown and he decided to purchase Samsung S-10 Plus mobile phone. It was priced at Rs. 75,000/-. As that time, my friend Mr. Hardik Bhatt made a phone call to me and he told me to give mobile phone on credit of three months on installments to Dr. Bhavinbhai, who was in the shop to purchase mobile phone and that he (Dr. Bhavin) will pay the amount to me as per the decided installment. As such fact was stated, I trusted Hardik Bhatt and gave Samsung S-10 mobile phone to Dr. Bhavinbhai for Rs. 75,000/- and he gave me down payment of Rs. 5,000/- for this and three installment of Rs. 25,000/- each were fixed and for this sale, I had issued bill with GST in the name of my above mentioned shop. Thereafter, when a phone call was made after one month to this Dr. Bhavinbhai to collect the first installment, he stated that he would give the money later on and thereafter, this Bhavinbhai did not pay the remaining amount of three installments of the mobile phone. Therefore, I made payment of the mobile phone to the company using my Credit Card. This Bhavinbhai has not given me the outstanding amount of the mobile phone till date. Moreover, frequent phone calls were also made to Hardikbhai Bhatt in this regard and he used to state that if Bhavinbhai does not pay the money, he will pay. By saying such, he used to give promises till date and used to make excuses regarding payment of outstanding amount. However, he has not paid the outstanding amount to me till date. On last 25/08/2021, I made phone call to Dr. Bhavinbhai and told him that his outstanding amount for purchase of mobile phone including the penalty amounts to total Rs. 1,50,000/- and it was told to pay the mone