PRATIK GULSHANBHAI ALLAWADI vs STATE OF GUJARAT

Court
Gujarat High Court

R/SCR.A/14190/2025 JUDGMENT DATED: 02/11/2026
(GJHC240716642025)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 14190 of 2025
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PRATIK GULSHANBHAI ALLAWADI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. HERSCHELLE K. RAVAL(18164) for the Applicant(s) No. 1
MR. SURAJ A SHUKLA(7185) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 02/11/2026

JUDGMENT
1. By way of this application under Article 226 and Article
227 of the Constitution of India, the petitioner has prayed for
quashing and setting aside FIR being C.R.No.I –
11214020241297 of 2024 registered with Kamrej Police Station,
Surat for the offences punishable under Sections 409, 420, 504,
506(2) and 120(B) of the IPC as well as all other consequential
proceedings arising out of the aforesaid FIR qua the petitioner

herein.
2. Brief facts of the case are as under:-
2.1 The complainant / the respondent no. 2 is in business of
manufacturing and trading of grey cloth and is running his
business. Before three years, complainant came in contact with
with the petitioner through accused no.1. The complainant
started supplying grey cloth material to accused no.1 towards
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which he used to make payment on time. It is alleged that
during 10.07.2023 till 16.01.2024, the complainant through his
three different firms supplied goods to accused no.1 to the tune
of Rs.1,42,67,882/-, however, till date said amount is not paid to
complainant. Therefore, impugned FIR came to be lodged against
the petitioner and other accused.
3. Learned advocate for the petitioner submitted that on plain
reading of FIR, it fails to disclose any essential ingredient of
criminal breach of trust or cheating, having punishment defined
in section 409 and 420 of IPC. He would submit that FIR on its
face value indicates that the complainant / the respondent no. 2
herein used to supply grey cloth material to the accused no.1
and the accused no.1 used to make payment to that effect. It is
submitted that apart from introducing original accused no.1
with first informant, no specific role is attributed against the
petitioner. It is submitted that prior to registration of FIR,
original accused no.1 has already issued cheques of outstanding
dues in favour of first informant, however, the said cheques got
dishonored and first informant has already filed complaint under
the provisions of Negotiable Instrument Act. It is further
submitted that in absence of any essential ingredient of section
409 and 420 of IPC, civil transaction has been given color of
criminality. Therefore, it is submitted to quash the FIR. In
support of his submission, learned advocate for the petitioner
has relied on judgment of Hon’ble Apex Court in the case of
Delhi Race Club (1940) Ltd. v/s. State of Uttar Pradesh [2024
INSC 626].
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3.1 Upon such submission, learned advocate for the petitioner
requests to allow the petition.
4. When the matter is called out, none present for the
respondent No.2.
5. Learned APP submits that it is case where the petitioner
has cheated the complainant and therefore, offence u/s 409 and
420 are made out. Therefore, it is submitted to dismiss the
petition.
6. I have heard learned advocates for the parties and perused
the record. Bare reading of FIR demonstrate that upon say of
the petitioner, the complainant supplied goods of grey cloth
material to accused no.1 and since accused no.1 did not pay the
amount to the complainant, present FIR is filed under section
409 and 420 of IPC. Section 409 and 420 being relevant
provision of law defines criminal breach of trust and cheating as
under :-
“409. Criminal breach of trust by public servant, or by
banker, merchant or agent —
Whoever, being in any manner entrusted with property, or with any
dominion over property in his capacity of a public servant or in the way
of his business as a banker, merchant, factor, broker, attorney or agent,
commits criminal breach of trust in respect of that property, shall be
punished with imprisonment for life , or with imprisonment of either
description for a term which may extend to ten years , and shall also be
liable to fine.”
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420. Cheating and dishonestly inducing delivery of
property.—
Whoever cheats and thereby dishonestly induces the person
deceived to deliver any property to any person, or to make,
alter or destroy the whole or any part of a valuable security,
or anything which is signed or sealed, and which is capable
of being converted into a valuable security, shall be
punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to
fine.
7. Punishment of criminal breach of trust and cheating are
slated in section 409 and 420. If any person has been dominion
over the property in his capacity of public servant or in the way
of his business as banker, merchant, factor, broker, attorney or
agent, commits criminal breach of trust in respect of that
property, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend
to ten years, and shall also be liable to fine.
8. In background of above provision of law, if we again see
contents of FIR, at no point of time, it appears that no offence is
made out and it becomes amply clear that instead of filing a
money recovery suit, the respondent No.2 has filed the FIR.
Thus, FIR is filed giving color of criminality. It is significant to
note that first informant feels duped, he could have filed civil
suit for recovery of outstanding amount.
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9. What could be noticed that police authorities have misused
powers and added section 409 and 420 of IPC for the purpose of
recovery of outstanding amount which alleged to have been due
in commercial transaction. This Court has time and again
deprecated approach of police authorities for filing such kind of
FIR whereby civil dispute has been converted into criminal
proceedings. Even highest police officer of State in the rank of
DGP has issued circular to police personnel for not registering
FIR where civil dispute are given color of criminal proceedings.
But for the reason best known to the police officers concerned
without following those circulars, FIR of such kind are
registered.
10. Hon’ble Apex Court recently examined the issue in the case
of Delhi Race Club (1940) Ltd. (supra). The finding and
observation of Hon’ble Apex Court are in para 24 to 41, which
reads as under :
“ 24. This Court in its decision in  S.W. Palanitkar & Ors. v.
State of Bihar & Anr.  reported in (2002) 1 SCC 241
expounded the difference in the ingredients required for
constituting an of offence of criminal breach of trust ( Section
406  IPC) viz-a-viz the offence of cheating ( Section 420 ). The
relevant observations read as under: -
“9. The ingredients in order to constitute a criminal breach of
trust are: (i) entrusting a person with property or with any
dominion over property, (ii) that person entrusted (a)
dishonestly misappropriating or converting that property to
his own use; or (b) dishonestly using or disposing of that
property or wilfully suffering any other person so to do in
violation (i) of any direction of law prescribing the mode in
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which such trust is to be discharged, (ii) of any legal contract
made, touching the discharge of such trust.
10. The ingredients of an offence of cheating are: (i) there
should be fraudulent or dishonest inducement of a person
by deceiving him, (ii)(a) the person so deceived should be
induced to deliver any property to any person, or to consent
that any person shall retain any property; or (b) the person
so deceived should be intentionally induced to do or omit to
do anything which he would not do or omit if he were not so
deceived; and (iii) in cases covered by (ii)(b), the act
of omission should be one which causes or is likely to cause
damage or harm to the person induced in body, mind,
reputation or property.”
25. What can be discerned from the above is that the
offences of criminal breach of trust ( Section 406  IPC) and
cheating ( Section 420  IPC) have specific ingredients. In
order to constitute a criminal breach of trust ( Section
406  IPC): -
1) There must be entrustment with person for property or
dominion over the property, and
2) The person entrusted: -
a) dishonestly misappropriated or converted property to his
own use, or
b) dishonestly used or disposed of the property or willfully
suffers any other person so to do in violation of:
i. any direction of law prescribing the method in which the
trust is discharged; or ii. legal contract touching the
discharge of trust (see:  S.W.P. Palanitkar  (supra).
Similarly, in respect of an offence under  Section 420  IPC,
the essential ingredients are: -
1) deception of any person, either by making a false or
misleading representation or by other action or by omission;
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2) fraudulently or dishonestly inducing any person to deliver
any property, or
3) the consent that any persons shall retain any property
and finally intentionally inducing that person to do or omit to
do anything which he would not do or omit
(see:  Harmanpreet Singh Ahluwalia v. State of Punjab ,
(2009) 7 SCC 712 : (2009) Cr.L.J. 3462 (SC))
26. Further, in both the aforesaid sections, mens rea i.e.
intention to defraud or the dishonest intention must be
present, and in the case of cheating it must be there from the
very beginning or inception.
27. In our view, the plain reading of the complaint fails to
spell out any of the aforesaid ingredients noted above. We
may only say, with a view to clear a serious misconception
of law in the mind of the police as well as the courts below,
that if it is a case of the complainant that offence of criminal
breach of trust as defined under  Section 405  of IPC,
punishable under  Section 406  of IPC, is committed by the
accused, then in the same breath it cannot be said that the
accused has also committed the offence of cheating as
defined and explained in  Section 415  of the IPC,
punishable under  Section 420  of the IPC.
28. 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
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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 induced the
appellant to pay them Rs. 35,000/- by deceiving him. It is
further not the case of the appellant that a representation
was made, the respondents knew the same to be false. The
fact that the respondents subsequently did not abide by
their commitment that they would show the appellant to be
the proprietor of Drang Transport Corporation and would
also render accounts to him in the month of December might
create civil liability on the respondents for the offence of
cheating.”
29. To put it in other words, the case of cheating and
dishonest intention starts with the very inception of the
transaction. But in the case of criminal breach of trust, a
person who comes into possession of the movable property
and receives it legally, but illegally retains it or converts it to
his own use against the terms of the contract, then the
question is, in a case like this, whether the retention is with
dishonest intention or not, whether the retention involves
criminal breach of trust or only a civil liability would depend
upon the facts of each case.
30. The distinction between mere breach of contract and the
offence of criminal breach of trust and cheating is a fine one.
In case of cheating, the intention of the accused at the time
of inducement should be looked into which may be judged
by a subsequent conduct, but for this, the subsequent
conduct is not the sole test. Mere breach of contract cannot
give rise to a criminal prosecution for cheating unless
fraudulent or dishonest intention is shown right from the
beginning of the transaction i.e. the time when the offence is
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said to have been committed. Therefore, it is this intention,
which is the gist of the offence. Whereas, for the criminal
breach of trust, the property must have been entrusted to the
accused or he must have dominion over it. The property in
respect of which the offence of breach of trust has been
committed must be either the property of some person other
than the accused or the beneficial interest in or ownership’
of it must be of some other person. The accused must hold
that property on trust of such other person. Although the
offence, i.e. the offence of breach of trust and cheating
involve dishonest intention, yet they are mutually exclusive
and different in basic concept. There is a distinction between
criminal breach of trust and cheating. For cheating, criminal
intention is necessary at the time of making a false or
misleading representation i.e., since inception. In criminal
breach of trust, mere proof of entrustment is sufficient. Thus,
in case of criminal breach of trust, the offender is lawfully
entrusted with the property, and he dishonestly
misappropriated the same. Whereas, in case of cheating, the
offender fraudulently or dishonestly induces a person by
deceiving him to deliver any property. In such a situation,
both the offences cannot co-exist simultaneously.
31. At the most, the court of the Additional Chief Judicial
Magistrate could have issued process for the offence
punishable under  Section 420  of the IPC i.e. cheating but in
any circumstances no case of criminal breach of trust is
made out. The reason being that indisputably there is no
entrustment of any property in the case at hand. It is not
even the case of the complainant that any property was
lawfully entrusted to the appellants and that the same has
been dishonestly misappropriated. The case of the
complainant is plain and simple. He says that the price of
the goods sold by him has not been paid. Once there is a
sale,  Section 406  of the IPC goes out of picture. According
to the complainant, the invoices raised by him were not
cleared. No case worth the name of cheating is also made
out.
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32. Even if the Magistrate would have issued process for the
offence punishable under  Section 420  of the IPC, i.e.,
cheating the same would have been liable to be quashed
and set aside, as none of the ingredients to constitute the
offence of cheating are disclosed from the materials on
record.
33. It has been held in  State of Gujarat v. Jaswantlal
Nathalal  reported in (1968) 2 SCR 408, “The term
“entrusted” found in  Section 405  IPC governs not only the
words “with the property” immediately following it but also
the words “or with any dominion over the property”
occurring thereafter—see  Velji Raghvaji Patel v. State of
Maharashtra  [(1965) 2 SCR 429]. Before there can be any
entrustment there must be a trust meaning thereby an
obligation annexed to the ownership of property and a
confidence reposed in and accepted by the owner or
declared and accepted by him for the benefit of another or of
another and the owner. But that does not mean that such
an entrustment need conform to all the technicalities of the
law of trust — see  Jaswantrai Manilal Akhaney v. State of 
Bombay  [1956 SCR 483]. The expression “entrustment”
carries with it the implication that the person handing over
any property or on whose behalf that property is handed
over to another, continues to be its owner. Further the
person handing over the property must have confidence in
the person taking the property so as to create a fiduciary
relationship between them. A mere transaction of sale
cannot amount to an “entrustment””.
34. Similarly, in  Central Bureau of Investigation, SPE,
SIU(X), New Delhi v. Duncans Agro Industries Ltd.,
Calcutta  reported in (1996) 5 SCC 591 this Court held that
the expression “entrusted with property” used in  Section
405  of the IPC connotes that the property in respect of
which criminal breach of trust can be committed must
necessarily be the property of some person other than the
accused or that the beneficial interest in or ownership
thereof must be in the other person and the offender must
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hold such property in trust for such other person or for his
benefit. The relevant observations read as under: -
“27. In the instant case, a serious dispute has been raised
by the learned counsel appearing for the respective parties
as to whether on the face of the allegations, an offence of
criminal breach of trust is constituted or not. In our view, the
expression “entrusted with property” or “with any dominion
over property” has been used in a wide sense in  Section
405  IPC. Such expression includes all cases in which goods
are entrusted, that is, voluntarily handed over for a specific
purpose and dishonestly disposed of in violation of law or in
violation of contract. The expression ‘entrusted’ appearing
in  Section 405  IPC is not necessarily a term of law. It has
wide and different implications in different contexts. It is,
however, necessary that the ownership or beneficial interest
in the ownership of the property entrusted in respect of
which offence is alleged to have been committed must be in
some person other than the accused and the latter must hold
it on account of some person or in some way for his benefit.
The expression ‘trust’ in  Section 405  IPC is a
comprehensive expression and has been used to denote
various kinds of relationships like the relationship of trustee
and beneficiary, bailor and bailee, master and servant,
pledger and pledgee. When some goods are hypothecated by
a person to another person, the ownership of the goods still
remains with the person who has hypothecated such goods.
The property in respect of which criminal breach of trust can
be committed must necessarily be the property of some
person other than the accused or the beneficial interest in or
ownership of it must be in the other person and the offender
must hold such property in trust for such other person or for
his benefit. In a case of pledge, the pledged article belongs to
some other person but the same is kept in trust by the
pledgee. [...]” (Emphasis supplied)
35. The aforesaid exposition of law makes it clear that there
should be some entrustment of property to the accused
wherein the ownership is not transferred to the accused. In
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case of sale of movable property, although the payment may
be deferred yet the property in the goods passes on delivery
as per  Sections 20  and  24  respectively of the  Sale of
Goods Act, 1930 .
“20. Specific goods in a deliverable state. — Where there is
an unconditional contract for the sale of specific goods in a
deliverable state, the property in the goods passes to the
buyer when the contract is made and it is immaterial
whether the time of payment of the price or the time of
delivery of goods, or both, is postponed.
xxx xxx xxx
24. Goods sent on approval or “on sale or return”. — When
goods are delivered to the buyer on approval or “on sale or
return” or other similar terms, the property therein passes to
the buyer—(a) when he signifies his approval or acceptance
to the seller or does any other act adopting the transaction;
(b) if he does not signify his approval or acceptance to the
seller but retains the goods without giving notice of rejection,
then, if a time has been fixed for the return of the goods on
the expiration of such time, and, if no time has been fixed,
on the expiration of a reasonable time.”
36. From the aforesaid, there is no manner of any doubt
whatsoever that in case of sale of goods, the property
passes to the purchaser from the seller when the goods are
delivered. Once the property in the goods passes to the
purchaser, it cannot be said that the purchaser was
entrusted with the property of the seller. Without
entrustment of property, there cannot be any criminal breach
of trust. Thus, prosecution of cases on charge of criminal
breach of trust, for failure to pay the consideration amount
in case of sale of goods is flawed to the core. There can be
civil remedy for the non-payment of the consideration
amount, but no criminal case will be maintainable for it. [See
:  Lalit Chaturvedi and Others v. State of Uttar Pradesh and
Another  : 2024  SCC OnLine SC 171 & Mideast Integrated
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Steels Ltd. (MESCO Steel Ltd.) and Others v. State of
Jharkhand and Another  :2023 SCC OnLine Jhar 301]
37. The case at hand falls in category No. 1 as laid in  Smt.
Nagawwa  (supra) referred to in para 7 of this judgment.
38. If it is the case of the complainant that a particular
amount is due and payable to him then he should have filed
a civil suit for recovery of the amount against the appellants
herein. But he could not have gone to the court of Additional
Chief Judicial Magistrate by filing a complaint of cheating
and criminal breach of trust.
39. It appears that till this date, the complainant has not
filed any civil suit for recovery of the amount which
according to him is due and payable to him by the
appellants. He seems to have prima facie lost the period of
limitation for filing such a civil suit.
40. In such circumstances  referred to above , the
continuation of the criminal proceeding would be nothing but
abuse of the process of law.
41. Before we close this matter, we would like to say
something as regards the casual approach of the courts
below in cases like the one at hand. The  Indian Penal
Code  ( IPC ) was the official Criminal Code in the Republic of
India inherited from the British India after independence.
The  IPC  came into force in the sub-continent during the
British rule in 1862. The  IPC  remained in force for almost a
period of 162 years until it was repealed and replaced by
the Bharatiya Nyaya Sanhita (“BNS”) in December 2023
which came into effect on 1st July 2024. It is indeed very
sad to note that even after these many years, the courts
have not been able to understand the fine distinction
between criminal breach of trust and cheating.”
11. Applying aforesaid ratio, in the present case, FIR appears
to be complete misuse of power.
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12. This Court may gainfully refer to the following observations
of this Court in the case of State of Haryana v. Bhajan Lal
[1992 Suppl (1) SCC 335] , and the law laid down therein has
been consistently followed. In para 102, the Hon’ble Apex Court
held as under :-
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced above,
we give the following categories of cases by way of
illustration wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be possible to
lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value
and accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section 155(2)
of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out
a case against the accused.
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(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a noncognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under which
a criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge."
14. In wake of above reasons, the petition deserves
consideration and accordingly, it is allowed. The impugned FIR
being C.R.No.I – 11214020241297 of 2024 registered with
Kamrej Police Station, Surat and further proceedings arising
thereof are hereby quashed and set aside qua the petitioner
herein. Rule is made absolute. Direct service is permitted.
(J. C. DOSHI,J)
SATISH
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