R/SCR.A/9451/2025 ORDER DATED: 14/08/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 9451 of 2025 With CRIMINAL MISC.APPLICATION (FOR AMENDMENT) NO. 1 of 2025 In R/SPECIAL CRIMINAL APPLICATION NO. 9451 of 2025 ========================================================== BIPINBHAI KUMUDBHAI AADESRA Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: MR. AADIT R SANJANWALA(9918) for the Applicant(s) No. 1 MS DHWANI TRIPATHI, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 14/08/2025 ORAL ORDER 1) By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), the applicants have prayed to quash and set aside the FIR being C.R.No.11208050250477 of 2025 registered with ‘A’ Division Police Station, Rajkot, for the o昀昀ence under Sections 316(5) of BNS and other proceedings arising therefrom qua him. 2) It is the case of the prosecution is that, the petitioner had business relation with the complainant, where the complainant used to give gold ornaments to the petitioner for sale in the market and after selling and deducting his commission, the petitioner was to return back 昀椀ne gold to the complainant. But the petitioner has neither returned back 387.371 gms. Fine gold nor the amount of Rs.37,51,500/- to the complainant. In this regard, FIR came to be 昀椀led. 3) Learned counsel for the petitioner has submitted that the petitioner has not committed an o昀昀ence as alleged in the FIR. There was business relation between the petitioner and complainant and R/SCR.A/9451/2025 ORDER DATED: 14/08/2025 dispute is purely a commercial transaction. Transaction was going on between them since last 2 years, where the complainant provided gold ornaments to the petitioner and the petitioner after selling the same into the market and after deducting his commission, had to return to the complainant. During the said period, the petitioner had been returning gold in exchange for the ornaments supplied to him and therefore, there was no dishonest intention on the part of the petitioner at the inception or during its continuation. However, it is alleged that the petitioner had not returned 387.371 gms. Gold valued at Rs.37,51,500/-, which is purely a commercial transaction and dispute is civil in nature. It is further submitted that, there was oral agreement that if the petitioner fails to return the goods, then complainant has to 昀椀le proceedings. 4) Learned counsel for the petitioner has further submitted that, the petitioner has no past antecedent and this is a simple case of breach of trust and for that, civil action is required to be initiated. Therefore, he has submitted that, in case of breach of contract, no prosecution is permissible under criminal law as the dispute is civil in nature. Every breach of contract would not give rise to the o昀昀ence of cheating. Therefore, present FIR is 昀椀led, giving a cloak of criminality. In such circumstances, present petition may be allowed, as prayed for. 5) Per contra, learned APP for the State has opposed the present petition and contended that, the petitioner has committed serious o昀昀ence and pocketed the huge amount of the complainant. Gold ornament was entrusted to the petitioner for the purpose of selling, however, the petitioner with mala昀椀de intent, neither returned the gold nor paid the amount. Investigation is nascent stage. As per the business relation, the complainant gave gold ornaments to the petitioner for selling in the market and the petitioner has to return the same after deducting his commission, but the petitioner failed to R/SCR.A/9451/2025 ORDER DATED: 14/08/2025 return the same and pocketed lacs of rupees and thereby, committed an o昀昀ence under Section 316 of BNS. It is further submitted that after winning over the trust of the complainant, the petitioner obtained gold ornaments and then did not return or make the payment. Hence, prima facie o昀昀ence of criminal breach of trust is made out. Whatever material is collected during investigation would su昀케ce to establish the involvement of the petitioner in the alleged o昀昀ence. In such facts of the case and considering the conduct of the petitioner, no case is made out to exercise extraordinary jurisdiction of this Court under Section 482 of the Cr.P.C and therefore, present petition deserves to be dismissed. 6) Having heard learned counsel for the parties and perusing the material placed on record, it appears that there was a business relations between the complainant and petitioner and during that period, the complainant has handed over various gold ornaments to the petitioner for selling on commission basis and complainant was receiving back 昀椀ne gold from the petitioner, however, the petitioner after receiving the gold from the petitioner, neither returned the gold nor paid an amount of Rs.37,51,500/- i.e. value of the said gold. Prima facie, entrustment of the gold ornaments is not in dispute. It is also not in dispute that said gold is not returned to the complainant and no any explanation in this regard is o昀昀ered. Nor any money is paid by the petitioner. Hence, prima facie involvement of the petitioner is there. 7) It is a clear-cut case of criminal breach of trust. It is settled position of law that the o昀昀ence of cheating and criminal breach of trust cannot go together and each case is required to be considered on its own merit and based on the facts. 8) So far criminal breach of trust is concerned, it is also imperative to examine the ingredients of the said o昀昀ence and whether the R/SCR.A/9451/2025 ORDER DATED: 14/08/2025 allegations made in the complaint, read on their face, attract those o昀昀ences under the Penal Code. “Section 405 of IPC de昀椀nes Criminal Breach of Trust which reads as under: - “405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully su昀昀ers any other person so to do, commits “criminal breach of trust”. The essential ingredients of the o昀昀ense of criminal breach of trust are:- (1) The accused must be entrusted with the property or with dominion over it, (2) The person so entrusted must use that property, or; (3) The accused must dishonestly use or dispose of that property or wilfully su昀昀er any other person to do so in violation, (a) of any direction of law prescribing the mode in which such trust is to be discharged, or; (b) of any legal contract made touching the discharge of such trust. 24. “Entrustment” of property under Section 405 of the Indian Penal Code, 1860 is pivotal to constitute an o昀昀ence under this. The words used are, ‘in any manner entrusted with property’. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of ‘trust’. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code. 9) To establish the o昀昀ence of criminal breach of trust, it is essential that the entrustment of the property to the accused and dominion or power over it. Here the complainant had entrusted the gold to the petitioner and after giving or entrustment of the property, dominion or power was of the accused. The petitioner was supposed to return the gold ornaments after deducting his commission, but he neither returned the gold nor paid the amount, which clearly depicts his dishonest intention. 10) The contention of the learned counsel for the petitioner is that this is a civil dispute and does not constitute a case of criminal breach of trust. However, it is well settled law that there is a distinction R/SCR.A/9451/2025 ORDER DATED: 14/08/2025 between a civil wrong and a criminal o昀昀ence. While certain actions may give rise to civil liability, they can also attract criminal liability if the requisite mens rea is present. In the present case, it is clearly a case of criminal breach of trust. Although there may be elements of a civil wrong, the presence of mens rea gives rise to criminal liability as well. In this regard, it is refer to the decision of the Hon’ble Supreme Court in case of Sudhir Shantilal Mehta Vs. CBI, reported in 2009 (8) SCC 1, wherein, it is held as under:- “The criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or has otherwise dominion thereover. Such an act must not only be done dishonestly but also in violation of any direction of law or any contract express or implied relating to carrying out the trust…” 11) So far as the other contention that for civil dispute, criminal proceedings is not maintainable, is not acceptable. In this regard, reference is required to be made on the decision of Kamal Shivaji Pokarnekar Vs. State of Maharashtra, reported in (2019) 14 SCC 350. Alleged dispute is not simple purchase of gold or ornament and payment being not made. Here it is a clear cut case of entrustment of the property. Gold property was entrusted and it was retained by the accused rather to return to the complainant. Considering the same, Prima facie criminal breach of trust is made out and criminal complaint cannot be quashed on the ground of alleged speaking allegation made therein are of civil nature. 12) So far as argument canvassed by learned counsel for the petitioner that, it is a commercial transaction is not acceptable in absence of any bill or agreement. Here no commercial transaction took place. Property was entrusted and after selling it in the market, he has return back the gold after deducting commission. Therefore, this is not a commercial transaction and no any contract is executed between them. In absence of any contractual obligation or any contract, question does not arise to 昀椀le any civil proceedings. Hence, R/SCR.A/9451/2025 ORDER DATED: 14/08/2025 said argument is not acceptable. 13) Here is a clear cut case of cheating. It is needless to say at this stage that, court should not hold mini trial, but prima facie involvement of the accused is found and complaint is not 昀椀led with mala昀椀de intention or with a view to tarnish the image of the petitioner, then question does not arise to invoke the power under Section 482 of the Cr.P.C. 14) Further, criminal proceeding would have to proceed entirely based on the allegations made in a complaint or the evidence collected during the investigation. It is not justi昀椀ed to embark inquiry or to hold mini trial qua genuineness or credibility of the material collected during the investigation and Court cannot go into correctness or otherwise of the material collected by the prosecution. In this regard, reference is required to be made to the decision of the Hon’ble Apex Court in the case of Manik B. vs. Kadapala Sreyes Reddy & Ors. reported in 2023 Live Law 642 (3 Judges’ Bench). 15) It is also worthwhile to refer to the decision of Hon’ble Supreme Court in the case of Supriya Jain vs. State of Haryana reported in 2023 LiveLaw (SC) 494. Further, in the case of Ramveer Upadhyay & Anr. vs. State of U.P. & Anr. reported in 2022 OnLine SC 484, Central Bureau of Investigation Vs. Aryan Singh etc., reported in 2023 SCC Online Sc 379 and Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra reported in 2021 SCC OnLine SC 315, it is observed and held as under: “Even though, the inherent power of the High Court under Section 482 of the CrPC, to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 of the CrPC is not be exercised for the asking.” 16) The investigation is at a nascent stage, and as per the settled law, the Court should not thwart or interfere with the investigation process R/SCR.A/9451/2025 ORDER DATED: 14/08/2025 prematurely. The Court must exercise extreme caution and restraint while considering any intervention at this stage. Unless and until no cognizable o昀昀ence is disclosed, the Court cannot exercise its powers to stop the investigation. It is not open to the Court to embark upon an inquiry into the truth or falsity of the allegations made in the FIR at this stage; such issues are to be examined only after the investigation is concluded. In this regard, reference may be made to the decision in King Emperor vs. Khwaja Nazir Ahmad, reported in 1994 SCC OnLine PC 29. 17) It is also appropriate to refer to the decision of the Hon’ble Supreme Court in the case of State v. M. Maridoss reported in (2023) 4 SCC 338 wherein it is held that quashing of FIR exercising power under Section 482 of the Cr.P.C without giving any reasonable time or opportunity to the Investigating agency to investigate into the allegations made in the FIR is not permissible. 18) Whatever contentions raised by the petitioner are defences of the petitioner, which cannot be looked into at this stage in exercise of power under Section 482 of the Cr.P.C and this Court should not hold mini-trial while exercising inherent jurisdiction under Section 482 of the Cr.P.C. Even, present case does not satisfy any of the parameters laid down by the Hon’ble Supreme Court in the case of State of Haryana vs. Bhajan Lal reported in (1992) Supp (1) SCC 335 warranting the exercise of jurisdiction under Section 482 of the CrPC vis-à-vis the quashing of impugned FIR. Further, the Court will not be justi昀椀ed in embarking upon any enquiry as to the reliability of genuineness / otherwise of the allegations made in the complaint and also that, the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and caprice. Page 7 of 8 R/SCR.A/9451/2025 ORDER DATED: 14/08/2025 19) In wake of aforesaid discussion, present petition fails and same is hereby dismissed. However, it is needless to say that, the observations made in the order are tentative in nature. Accordingly, allied Misc. Application stands also disposed of. (HASMUKH D. SUTHAR, J.) SUCHIT Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: PATEL SUCHIT JAYESHBHAI(HC01083), Private Secretary, at High Court of Gujarat on 19/08/2025 11:36:08