IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION NO. 14888 of 2016 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA ==========================================================

1 Whether Reporters of Local Papers may be allowed YES

1	Whether Reporters of Local Papers may be allowed to see the judgment ?	YES
2	To be referred to the Reporter or not ?	YES
3	Whether their Lordships wish to see the fair copy of the judgment ?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

==========================================================

NILAY S/O ARVINDBHAI SHETH Versus SHRI KAPIL KISHORBHAI JOSHI, & 1 other(s)

==========================================================

Appearance:

VATSAL M PARIKH(9340) for the Applicant(s) No. 1 VISMAY V MALKAN(9284) for the Applicant(s) No. 1 MR P P MAJMUDAR(5284) for the Respondent(s) No. 1 MS VRUNDA SHAH, APP for the Respondent(s) No. 2 ==========================================================

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA Date : 01/03/2023

ORAL JUDGMENT

1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant seeks to invoke inherent powers of this Court, praying for quashment of the chargesheet, filed in connection with the FIR being C.R.No.I-37 of 2016 registered with Gorva Police Station, Vadodara for the offences punishable under Sections 406, 420, 504 and 506(1) of the Indian Penal Code.

2. Facts and circumstances giving rise to file present application are that the applicant - Nilesh Seth is the Director and/or owner of M/s.Nivida Web Solution Pvt. Ltd. doing business in the I.T. Sector at Vadodara. Respondent no.2 – Future Link Visa Consultant Pvt. Ltd. is doing Visa Consultancy Work and rendering coaching for different foreign courses. Respondent no.2 approached the applicant for designing and development of a website for online application system for CAIPS/FOSS/GCMS. Parties entered into mutual agreement on 13.02.2015 and 30 days’ time limit was agreeable to the parties. Initial payment as agreed was made by the respondent no.2- complainant. Respondent no.2 lodged an FIR against the applicant under Sections 406, 420, 504 and 506(1) of the Indian Penal Code stating inter alia that despite making a full payment, the applicant herein failed to develop website as per the terms and conditions of the agreement and repeatedly asked to pay more amount despite the payment of additional amount, the applicant herein failed to provide software for the web-portal and also did not redesign the website. It is further alleged that the complainant was lured to part with the money and with dishonest intention, made a false promise to develop the website, thereby, he has committed offence of cheating and criminal breach of trust.

3. In the aforesaid facts, the FIR came to be registered against the applicant herein and after completion of investigation, chargesheet came to be filed against the applicant for the offences as referred hereinabove.

4. The applicant herein preferred the instant application invoking inherent powers of this Court, seeking quashment of the criminal proceedings mainly on the ground that merely a breach of contract cannot give rise to a criminal proceedings for cheating and criminal breach of trust and therefore, the allegations levelled, do not prima facie constitute an offence under Sections 406, 420, 504 and 506(1) of the Indian Penal Code.

5. This Court has heard Mr.J.M. Malkan, learned advocate appearing for and on behalf of the applicant herein, Mr.P.P.

Majmudar, learned advocate appearing for respondent no.2 and Ms.Vrunda Shah, learned APP for the respondent-State.

6. Mr.J.M. Malkan, learned advocate has urged that in order to attract the offence of criminal breach of trust, defined in Section 405 of the IPC, the complainant has to prima facie establish that the accused must have been entrusted

Click Here to Read the rest of this document