IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 11503 of 2020 ==========================================================

BHARATBHAI MANUBHAI LAKUM Versus STATE OF GUJARAT & ANR.

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Appearance:

MR AB GATESHANIYA(3766) for the Applicant(s) No. 1 MR HK PATEL, APP for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 02/09/2024

ORAL ORDER

1. Considering the facts and circumstances of the case, the matter is taken up for final disposal forthwith.

2. By way of this application under Article 226 and 227 of Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), the applicant, has prayed to quash and set aside the impugned complaint being C.R. No.I-11211030200245 of 2020 registered with Lakhtar Police Station, District : Surendranagar for the offence under Sections 406 and 420 of Indian Penal Code, 1860 and other proceedings arising therefrom qua them.

3. Heard learned advocates for the respective parties.

4. Learned advocate for the applicant has submitted that the present application is nothing but an abuse of process of law.

Learned advocate for the applicant has submitted that the present applicant is partner of one Abhishek Seeds Delating and Processing. The go-down of the aforesaid partnership firm was let out to the Government with consent of the present applicant and thereby the present applicant has committed the offence of criminal breach of trust and cheating. Further, it is alleged that though Power-of-Attorney was executed in favour of the present applicant-accused by the complainant – respondent No.2, but subsequently, it was cancelled and though the public notice came to be issued in the newspaper and on the second day, rent agreement came to be executed with the Government. In this regard, the complaint came to be filed. Considering the aforesaid fact, no offence is made out. Hence, he has requested to exercise the jurisdiction under Section 482 of the Cr.P.C.

4.1. Learned counsel for the applicant has further submitted that the allegations levelled against the applicant is nothing, but an abuse of process of law. He further submitted that, there is no nexus or relationship or rather no amount is entrusted to the applicant by the complainant and therefore, the applicant has not committed any offence of criminal breach of trust and fraud. Further, the applicant has not played any mischief or abetted the offence. Therefore, without any nexus or evidence, no offence of cheating and fraud is being attracted qua the present applicant. In view of the above contentions, learned advocate prays to allow present application and quash the FIR against the applicant, as prayed for, in this application.

5. Learned APP has vehemently opposed the present application and submitted that without consent of the other partners, the applicant has let out the premises and tried to siphoned the amount and thereby by he has committed an offence of criminal breach of trust and cheating. Therefore, this is not a fit case to exercise the jurisdiction. Thus, prima facie involvement of the applicant is established. Therefore, present application may not be entertained.

6. Having heard learned counsel for both the sides and going through the allegations levelled against the applicant, it prima facie appears that there is no nexus or relationship between the applicant and complainant and no material is on record, which connects the applicant in the alleged offence.

7. In the present case, complaint is filed under Sections 406 and 420 of the IPC. To make out an offence under Sections 406 and 420 of the IPC, it is worth to refer to provisions of sections

405, 406, 415 and 420 of the IPC, which read as under:

(i) 405. Criminal breach of trust.- Whoever, being i