[2025:RJ-JP:51972] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 4269/2021 Ajeet Jain S/o Mahaveer Jain, R/o Malviya Nagar, Jaipur City (East) Rajasthan. ----Accused-Petitioner Versus 1. State Of Rajasthan, Through Public Prosecutor. 2. Arun Goyal S/o Ghanshyam Prasad Goyal, R/o A 94, Malviya Nagar, Jaipur City (East) Rajasthan. ----Complainant-Respondents Connected With S.B. Criminal Miscellaneous (Petition) No. 3599/2021 1. Jitendra Jain S/o Shri Manakchand Jain, R/o XYZ Malviya Nagar, Jaipur City (East), Presently R/o 112, 80 Feet Road, Avadhpuri-I, Mahesh Nagar, Jaipur (Raj.). 2. Sandeep Agarwal S/o Shri Satyanarayan, Aged About 34 Years, R/o XYZ Malviya Nagar, Jaipur City (East), Presently R/o 72/141, Patel Marg, Mansarovar, Jaipur (Rajasthan). ----Accused-Petitioners Versus 1. State Of Rajasthan, Through Public Prosecutor. ----Respondent 2. Arun Goyal S/o Shri Ghanshyam Prasad Goyal, Aged About 41 Years, R/o A-94, Malviya Nagar, Jaipur City (East), Rajasthan. ----Complainant/Respondent For Petitioner(s) : Mr. Ashish Kumar, Adv., and Mr. Suresh Kumar Sahni, Adv., with Mr. Ram Mohan Sharma, Adv. For Respondent No.1 For Respondent No.2 Investigating Officer : : : Mr. N.S. Dhakar, PP with Mr. M.S. Shekhawat, PP Mr. Ashvin Grag, Adv. Mr. Veerendra Singh Dhakad, SHO, PS Malviya Nagar, Jaipur City (East) HON'BLE MR. JUSTICE ANIL KUMAR UPMAN Order 1. Date of conclusion of arguments : 27.11.2025 2. Date on which the judgment was reserved : 27.11.2025 3. Whether the full judgment or only the operative part is pronounced : Full Judgment 4. Date of pronouncement : 08.01.2026 **** [2025:RJ-JP:51972] (2 of 27) [CRLMP-4269/2021] 1. These criminal misc. petitions under Section 482 Cr.P.C. have been filed on behalf of the petitioners herein for quashing FIR No.139/2021 registered at Police Station Malviya Nagar, District Jaipur City (East), for offences punishable under Sections 43, 66, 72 & 72A of the Information Technology Act, 2000 (hereinafter referred to as the ‘IT Act’, 2000) and Sections 420 & 120B of the IPC and all subsequent proceedings arising out of it. 2. Brief facts of the case are that the complainant-respondent No.2 lodged a report at Police Station Malviya Nagar, District Jaipur City (East) which is being reproduced as under-: “We are running an IT company by the name Octal IT Solution LLP in Jaipur since 2007 specializing in software development. Recently, I found two of our ex-employees Mr. Jitendra Jain and Mr. Sandeep Agarwal breached the contract signed with us. They have stolen our client leads and source code while working with us. They have been using the stolen information for their personal gain by defrauding us from past few years and have also registered a company providing services similar to us by the name Inventcolabs Infotech Pvt. Ltd. in the year 2020. Mr. Jitendra Jain and Mr. Sandeep Agarwal have been contacting our clients and offering them services with lower cost. Being on a senior position in Octal they were having access to the all the records including client contact numbers, nature of client, project Information, project source code information which they stole and misused. Due to this fraud, we are facing a huge loss as it highly effects to company business and its reputation. I have also come to know that our current employee Mr. Ajit Jain is also involved in this conspiracy. I would also like to highlight few incidents here our client Mr. Raphael Reich (raphael activegain.fit), started a project on 27th Feb. 2019 worth around USD 32K with us. We started working on this project and suddenly the client stopped responding to our e-mails and did not ask for the source code of the completed task as well, which was unusual. After which, recently we came to know that the source code and other project execution related documents of the client have been stolen by Mr. [2025:RJ-JP:51972] (3 of 27) [CRLMP-4269/2021] Jitendra Jain and Mr. Sandeep Agarwal and they have started working with this client directly from their new firm for the same projects and other new projects as well. We are attaching the screenshots of clutch.co as a reference for the client in business with their new firm and our e-mails showing our business connect with Mr. Raphael Reich (raphael activegain.fit). Similarly, we received a project related enquiry from Mr. Vladimir Kolessov on 25th Jan 2020. It was a potential lead to get new business for our company. But Mr. Jitendra who used to manage Leads receiving and distribution department, transferred the relevant detail of the lead to his own company (Inventcolabs Infotech Pvt Ltd), he converted it from there and started working on it. We are attaching screenshots for your reference. They have their profile on upwork.com with the name Inventcolabs infotech since 2016 while they were the employees of Octal. Upwork is a platform that offers opportunities to find IT services requirements of the clients globally, to work on it and earn money. As per our company agreement an employee is not allowed to work as a freelancer by their own or at any such third-party platform that offers IT services. It shows they were defrauding us for their personal benefits. On the basis of these fact which we found over internet and the ones which came into our notice, we believe that they may have our source code and client information beyond what we can even think off. I request you to take appropriate action at earliest.” 3. Learned Counsel appearing for the petitioners contended that the dispute is essentially civil in nature and does not attract the ingredients of any criminal offence. It was submitted that the alleged dispute arose solely from the fact that the petitioners tendered their resignations and thereafter, commenced an independent business. The petitioners are presently dealing with their own clients and have no concern whatsoever with the clients of the complainant’s company. Moreover, the Counsel for the petitioners emphasized that a bare reading of the FIR itself would [2025:RJ-JP:51972] (4 of 27) [CRLMP-4269/2021] reveal that the allegations stem from a service-related dispute between an employer and his former employees. The only reason for lodging the present FIR is that the petitioners are now independently carrying on business in the same area, which has resulted in the complainant initiating the proceedings with malafide intent. 4. The Counsel for the petitioners further submit that the petitioners have been made accused for offences punishable under Sections 43/66, 72 and 72A of the IT Act, 2000 and therefore, could not be prosecuted under the Indian Penal Code, 1860. Further the offences under the IT Act, 2000, are bailable and offences under Sections 420 and 120B of the IPC have been added only to make out a non bailable offence. 5. The learned Counsel arguing on behalf of the petitioners submit that the criminal proceedings in the impugned FIR against the petitioners are misconceived. They submit that Section 43 of the IT Act, 2000 read with Section 66 of the IT Act, 2000 is sufficient to take care of the acts alleged against the present petitioners. It is the submission of the learned Counsel that the offences under the IT Act are compoundable and bailable. They invite attention of this Court to Sections 77A and 77B of the IT Act, 2000. Their precise submission is that by invoking and applying the provisions of the Indian Penal Code, attempt is made to deprive them of benefit of bail and compounding, which is available under the IT Act, 2000. The learned Counsel submit that in light of the binding precedent laid down by Hon’ble [2025:RJ-JP:51972] (5 of 27) [CRLMP-4269/2021] Supreme Court, the provisions of the IT Act, 2000 has been given an overriding effect to cover criminal acts contained in the Indian Penal Code and this law which is a special law must prevail over the general law and therefore, invocation of provisions of Indian Penal Code against the petitioners in the facts of the case is ex facie erroneous and without jurisdiction. As per their submission, the continuation of the proceedings against the petitioners under the provisions of the Indian Penal Code is nothing but abuse of process of law and therefore, they pray for quashing of the criminal proceedings in the impugned FIR qua the petitioners only to the extent of invocation and application of the offences punishable under the Indian Penal Code. 6. To buttress their contentions, the Counsel for the petitioners have relied upon the judgment of Hon’ble Supreme Court in the case of Sharad Babu Digumarti versus Government (NCT of Delhi) reported in 2017 (2) SCC 18, wherein, Hon’ble Supreme Court while deciding the petition for quashing proceedings for offences punishable under Section 292 of the Indian Penal Code, 1860, and Sections 66, 67 and 69 of the IT Act, 2000, held that: “It has to be borne in mind that IT Act is a special enactment. It has special provisions. Section 292 of the IPC makes offence sale of obscene books, etc. but once the offence has a nexus or connection with the electronic record the protection and effect of Section 79 cannot [2025:RJ-JP:51972] (6 of 27) [CRLMP-4269/2021] be ignored and negated. We are inclined to think so as it is a special provision for a specific purpose and the Act has to be given effect to so as to make the protection effective and true to the legislative intent.” 7. The Counsel for the petitioners further place reliance upon the judgment passed by Hon’ble Division Bench of the Bombay High Court in the case of Gagan Harsh Sharma & Ors. versus State of Maharashtra through Senior Police Inspector & Ors. reported in 2018 SCC OnLine Bom 17705, wherein the Hon’ble Division Bench placed heavy reliance upon the judgment passed by Hon’ble Supreme Court in the case of Sharad Babu Digumarti (Supra) and stated: “When such Act is done dishonestly and fraudulently it would attract the punishment under Section 66 of the Information Technology Act, such Act being held to be an offence. The ingredients of dishonesty and fraudulently are the same which are present if the person is charged with Section 420 of the Indian Penal Code. The offence of Section 379 in terms of technology is also covered under Section 43. Further, as far as Section 408 is concerned which relates to criminal breach of trust, by a clerk or servant who is entrusted in such capacity with the property or with any dominion over property, would also fall within the purview of Section 43 would intents to cover any act of accessing a computer by a person without permission of the owner or a person in charge of computer and/or stealing of any data, computer data base or any information from such computer or a computer system including information or data held or stored in any removable storage medium and if it is done with fraudulent and dishonest intention then it amounts to an offence. The ingredients of an offences under which are attracted by invoking and applying the [2025:RJ-JP:51972] (7 of 27) [CRLMP-4269/2021] Sections 420, 408, 379 of the Indian Penal Code are covered by Section 66 of the Information Technology Act, 2000 and prosecuting the petitioners under the both Indian Penal Code and Information Technology Act would be a brazen violation of protection against double jeopardy.” 8. Learned Counsel appearing for the petitioners submit that a bare perusal of the FIR would reveal that there was a contract between the petitioners and the complainant, and if there is any breach of the contract or the terms of the contract on the part of the petitioners, it does not automatically bring the petitioners under the purview of criminal liability. If any loss has occurred on account of breach of contract, then the party who has suffered the loss may initiate civil proceedings for damages and injunction before the competent civil Court. 9. With these submissions, learned Counsel appearing for the petitioners, pray that these criminal misc. petitions may be allowed and the impugned FIR may be quashed. 10. Per contra, learned Public Prosecutor as well as learned Advocate Shri Ashvin Garg, firmly oppose the submissions advanced by learned counsel for the petitioners. It is submitted that impugned FIR clearly discloses commission of cognizable offence punishable under Section 420 of IPC and as such, invoking of powers under Section 482 Cr.P.C. so as to quash impugned FIR is totally unwarranted. Counsel further contended that in the given facts and circumstances of the case, this Court cannot deviate from the decision of the learned Division Bench of the Bombay High Court in the case of Gagan Harsh Sharma [2025:RJ-JP:51972] (8 of 27) [CRLMP-4269/2021] (supra), as doing so would violate the principle of stare decisis and the norms of judicial propriety. The Division Bench only took into account the elements of Explanation (v) to Section 43 (j) of the Information Technology Act, 2000, though it did not take into account the fact that electronic data is distinct from computer resource. They further submit that Section 43 of the Information Technology Act, 2000 does not address the scenarios involving inducement to defraud, which would lead a person to act or refrain from acting in a way they otherwise would not, as described in Section 415 of the IPC nor does it cover the induced delivery of property, as in Section 420 of the IPC. Section 43 pertains to unauthorized computer usage for certain listed actions. If a complainant is deceived into copying data or handing over property (which should also encompass data), due to the fraudulent actions of the accused, he would be liable under Sections 415, 417, and 420 of the IPC, along with Section 43 of the IT Act. The ingredients of the offences punishable under the Indian Penal Code, 1860, with which the petitioners have been charged, are different from the ingredients of the offences punishable under the Information Technology Act, 2000, therefore the principles enunciated in the case of Gagan Harsh Sharma (supra) may not apply to the facts of the case at hand. 11. I have considered the submissions advanced by both the parties and scanned the material available on record. 12. For a thorough evaluation of the pending dispute, it would be appropriate to reproduce Sections 43, 65, 66, 72, 72A & 81 of [2025:RJ-JP:51972] (9 of 27) [CRLMP-4269/2021] the IT Act, 2000 and Sections 415 & 420 of the IPC which read as under:- Section 43: [Penalty and compensation] for damage to computer, computer system, etc:- If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network, (a) accesses or secures access to such computer, computer system or computer network [or computer resource]; (b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium; (c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network; (d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network; (e) disrupts or causes disruption of any computer, computer system or computer network; (f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means; (g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder; (h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network, (i) destroys, deletes or alters any information residing in a computer resource or diminishes [2025:RJ-JP:51972] (10 of 27) [CRLMP-4269/2021] its value or utility or affects it injuriously by any means;] (j) steal, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage;] [he shall be liable to pay damages by way of compensation to the person so affected]. Explanation.- For the purposes of this section, (i) “computer contaminant” means any set of computer instructions that are designed (a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or (b) by any means to usurp the normal operation of the computer, computer system, or computer network; (ii) “computer database” means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network; (iii) “computer virus” means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource; (iv) “damage” means to destroy, alter, delete, add, modify or rearrange any computer resource by any means; [(v) “computer source code” means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.] Section 65: Tampering with computer source documents:- [2025:RJ-JP:51972] (11 of 27) [CRLMP-4269/2021] Whoever knowingly or intentionally conceals, destroys or alters or intentionally or knowingly causes another to conceal, destroy or alter any computer source code used for a computer, computer programme, computer system or computer network when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend upto two lakh rupees, or with both. Explanation- For the purposes of this section, “computer source code” means the listing of programmes, computer commands, design and layout and programme analysis of computer resource in any form.” Section 66: Computer related offences:- If any person, dishonestly or fraudulently, does any act referred to in Section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakhs rupees or with both. Explanation-For the purposes of this section- (a) the word “dishonestly” shall have the meaning assigned to it in Section 24 of the Penal Code, 1860. (b) the word “fraudulently” shall have the meaning assigned to it in Section 25 of the Penal Code, 1860”. Section 72: Penalty for Breach of confidentiality and privacy:- Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made thereunder, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to [2025:RJ-JP:51972] (12 of 27) [CRLMP-4269/2021] two years, or with fine which may extend to one lakh rupees, or with both. Section 72A: Punishment for disclosure of information in breach of lawful contract:- Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both. Section 81: Act to have overriding effect:- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. [Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 (14 of 1957) or the Patents Act, 1970 (39 of 1970).] Section 415: Cheating:- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". [2025:RJ-JP:51972] (13 of 27) [CRLMP-4269/2021] Explanation.- A dishonest concealment of facts is a deception within the meaning of this section." Section 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.” 13. Perusal of the aforesaid provisions of the IT Act, 2000 would reveal that it provides mechanism for protection of data in a computer system or a computer network. The computer system is intended to cover a device or a collection of devices, including input and output support devices capable of being used in conjunction with external files, containing computer programs, electronic instructions, input and output data, data storage and retrieval. The said enactment is a code which deals with electronic governance and confers a legal recognition on electronic records and the manner in which such records can be secured. The IT Act, 2000, makes certain acts punishable under its Chapter IX and XI which enumerate the offences related to a computer including the source documents. Thus, the said enactment constitutes a complete code in itself and comprehensively addresses various aspects relating to electronic data, computer systems, and cyber- related offences. However, insofar as the applicability of the penal provisions of the Indian Penal Code is concerned, the same must [2025:RJ-JP:51972] (14 of 27) [CRLMP-4269/2021] be determined by a careful examination of the contents of the First Information Report or the complaint. If, upon such examination, it is found that by a deceitful or fraudulent act, the accused has derived wrongful gain and correspondingly caused wrongful loss to the complainant, there exists no legal impediment to the registration of an FIR for the offence punishable under Section 420 of the IPC. The overriding provision contained in Section 81 of the IT Act, 2000 does not operate as a bar to the applicability of the IPC in such circumstances. 14. A bare perusal of the FIR in the present case reveals serious and specific allegations. It is alleged that during the course of their employment with the complainant’s company, the accused petitioners not only dishonestly and unauthorisedly copied and stole the proprietary source code on which they were working, but also deliberately contacted the clients of the complainant’s company and offered identical or substantially similar services at a lower cost through a company whose directors were the family members of the petitioners. Such acts, prima facie, disclose elements of deception and inducement, thereby resulting in defrauding of the complainant’s company. It is further alleged that sensitive and confidential records of the complainant’s company, including client database, project details, and source code information, were stolen and misappropriated by the accused petitioners for their personal commercial benefit. These acts are stated to have caused substantial wrongful loss to the complainant’s company while conferring corresponding wrongful [2025:RJ-JP:51972] (15 of 27) [CRLMP-4269/2021] gain upon the accused. Such allegations, by their very nature, necessitate a thorough investigation by the Investigating Agency. 15. The word “deceiving” in Section 415 of the IPC is used in furtherance of the words “fraudulently” or “dishonestly” in the Section. A close reading of the provision would also make it abundantly clear that in order for an act to amount to “cheating” under Section 415 of the IPC, the element of deceit is an independent element, that is, in furtherance of the fact that the act was committed fraudulently or dishonestly. In light of this, while Section 66 of the IT Act satisfies the requirements for acts that are done “fraudulently” or “dishonestly”, it does not, in so many words, nor by implication, require the additional element of deceit that is a necessity for an offence for cheating that falls under Section 415 of the IPC. It, thus, becomes necessary to emphasize that although some ingredients of the offence punishable under Section 43 read with Section 66 of the IT Act overlap with those of the crime of cheating as Section 415 defines it, punishable under Section 420 of the Indian Penal Code, the offences are not the same in their constitutional elements. Even when some elements of Section 415 are covered in the provisions of the IT Act, the latter lacks the element of deception which differentiates the two. Now in this case, a bare perusal of the FIR would reveal there to be the elements of fraudulence and dishonesty, but additionally there are incidents like that of the petitioners allegedly taking the clients’ information and thereby also convincing these clients to work with the petitioners’ company instead, which involve not only fraudulent and dishonest elements, [2025:RJ-JP:51972] (16 of 27) [CRLMP-4269/2021] but also the key element of deception. Thus, it can be concluded that while the provisions of the IT ACT may cover some of the elements mentioned in the penal code, they do miss out on covering the offence of cheating as defined under Section 415 of the IPC, punishable under Section 420 of the IPC, because it lacks the mention of the element of deception. Even if the ingredients overlap, the offences cannot be considered to be the same, since each deal with a different issue and the proof of which demands different specific ingredients to be proven independent of each other. It may thus mean that only because dishonest or fraudulent acts exist within the context of the IT Act, per se, cheating cannot be said to automatically exist within the context of the Indian Penal Code unless the essential ingredient exists independent of each other. 16. In the considered opinion of this Court, the Investigating Agency was fully justified in registering the FIR for offences punishable under Sections 43, 66, 72, and 72A of the IT Act, 2000, and Sections 420 & 120B of the Indian Penal Code. The allegations disclosed in the FIR clearly make out a prima facie case warranting investigation under both statutory regimes, and no legal infirmity can be found in the initiation of such proceedings. 17. The factual report of the investigation is also available on record. While granting interim protection to the petitioners, this Court had directed them to join the investigation, which they duly complied with. According to the investigation conducted so far, it has been revealed that petitioner- J remained in the employment [2025:RJ-JP:51972] (17 of 27) [CRLMP-4269/2021] of the complainant’s company until 25.04.2020, petitioner- S continued in employment until 30.11.2020, and petitioner- A remained employed with the complainant’s company until 11.05.2021. It has further come on record that on 28.04.2020, a new company was incorporated in which family members of all the petitioners were appointed as directors. Notably, none of these directors belong to or possess any background in the Information Technology sector. During the said period, petitioners S and A were simultaneously working with both the complainant’s company and the newly formed company. It is alleged that during this time, they diverted project leads of the complainant’s company to their own company. However, there is no documentary record available with the petitioners’ company to substantiate any direct contractual engagement or communication with the clients. Ordinarily, such dealings would have been reflected in project documentation or official records maintained by the petitioner’s company, but no such record has been produced or found during the course of investigation which reflects off the book dealings with the clients who originally were the clients of the complainant’s company. 18. I fortify my view from the reference answer given by Hon’ble Full Bench of the Bombay High Court in the case of Awadhesh Kumar Parasnath Pathak Vs State of Maharashtra reported in AIR 2024 (BOM) 177 which observed as under-: “18. As can be understood, section 43 makes various acts punishable wherein a person without permission of the owner or any other person in charge of the computer, computer [2025:RJ-JP:51972] (18 of 27) [CRLMP-4269/2021] system or computer network either accesses, downloads or introduces virus or damages the computer, computer system network data or creates disruption or refuses access, destroys or deletes the information or steals, conceals or alters the computer source code. 19. By virtue of section 66, additionally, any act as is defined under section 43 is done dishonestly and fraudulently attracts a greater punishment. However, neither section 43 nor section 66 take within its sweep a situation where the acts done thereunder as done by resorting to inducement, which is an additional ingredient for the offences under section 415 and 420 of the Indian Penal Code, if a person accesses or secures access to computer, computer system or downloads something, by inducing the owner or any other person who is in charge. The offence under section 43 read with section 66 only contemplates a situation where someone dishonestly or fraudulently does any act under section 43. However, if it is done with permission accorded, labouring under some inducement, in our considered view, such an act would be an offence under section 415 and 420 of the Indian Penal Code and section 43 read with section 66 of the IT Act fall short to cover such offences. It is in this context, the definition of cheating under section 415 will have to be understood, simultaneously, with the definitions of 'dishonestly' contained in section 24 and 'fraudulently' contained in section 25 of the Indian Penal Code. 20. Sections 24, 25 and 415 of the Indian Penal Code read thus: - 24.“Dishonestly”.- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". 25.”Fraudulently".- A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. [2025:RJ-JP:51972] (19 of 27) [CRLMP-4269/2021] 415.”Cheating”.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Explanation. - A dishonest concealment of facts is a deception within the meaning of this section." 21. The use of word 'deceiving' in section 415 is in addition to the words 'fraudulently' or 'dishonestly' used therein. A plain reading would clearly indicate that in order to constitute 'cheating' as defined under section 415, element of deceit is an additional requirement, over and above the intention of the person resorting to such deceit being fraudulent and dishonest. It is, therefore, apparent that though section 66 of the IT Act covers the ingredients of 'fraudulently' and 'dishonestly', it does not cover the element of 'deceit' which is an additional concomitant for constituting the act as 'cheating' as defined under section 415 of the Indian Penal Code. 22. It would be necessary to emphasize that though some ingredients of offence punishable under section 43 read with section 66 of the Indian Penal Code are overlapping with the offence of cheating defined under section 415 and the one punishable under section 420, those are not exactly the same offences. 23. As we have indicated herein-above, the observations which we emphasized from paragraph no. 37 of Sharat Babu Digumarti (supra) comprehend the situation where the offence under the special act having a [2025:RJ-JP:51972] (20 of 27) [CRLMP-4269/2021] overriding effect and the one under the general law are the same. 24. It is in this context that a reference to section 26 of the General Clauses Act, as has been done in several matters including Aman Mittal (supra) would be relevant, which reads as under:- “26. Provision as to offences punishable under two or more enactments. -Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence." 25. In the matter of Aman Mittal, reference to the decision in the matter of Syyed Hassan was made, which was a matter in respect of section 55 of the Food and Safety Standards Act, 2006 in juxtaposition to section 188 of the Indian Penal Code, Sangeetaben Mahendrabhai Patel which was a similar issue regarding section 138 of the Negotiable Instruments Act and section 406, 420 read with section 114 of the Indian Penal Code; and the doctrine of harmonious construction resorted to by referring to the decision in the matter of Macquarie Bank Limited v. Shilpi Cable Technologies Ltd.; (2018) 2 SCC 674. Referring to these decisions, while considering the offences punishable under the Legal Metrology Act, 2009, in comparison to the offences under section 415, 467, 468, 477 of the Indian Penal Code as also the element of common intention under section 34 or conspiracy under section 120B of the Indian Penal Code, following conclusions in paragraph no. 35 of Aman Mittal were made and would be the guiding factors even for deciding the questions referred to us:- "35. The scheme of the Act is for the offences for use of weights and measures which are non-standard and for tampering with or altering any [2025:RJ-JP:51972] (21 of 27) [CRLMP-4269/2021] standards, secondary standards or working standards of any weight or measure. The Act does not foresee any offence relating to cheating as defined in Section 415 IPC or the offences under Sections 467, 468 and 471 IPC. Similarly, an act performed in furtherance of a common intention disclosing an offence under Section 34 is not covered by the provisions of the Act. An offence disclosing a criminal conspiracy to commit an offence which is punishable under Section 120B IPC is also not an offence under the Act. Since such offences are not punishable under the provisions of the Act, therefore, the prosecution for such offences could be maintained since the trial of such offences is not inconsistent with any of the provisions of the Act. Similar is the provision in respect of the offences under Sections 467, 468 and 471 IPC as such offences are not covered by the provisions of the Act." 19. The question as to whether criminal proceedings are permissible while civil litigation is pending or decided, or whether civil and criminal litigation can go on simultaneously with regard to the same allegations, has been decided by the Hon'ble Supreme Court. The Hon'ble Supreme Court has held that civil and criminal cases can go on simultaneously, if the allegation of criminality exists in the FIR. Reference of the judgments of Hon'ble Supreme Court in the case of “MS Sheriff versus the State of Madras & Ors.” reported in AIR 1954 SC 397 and in the case of “P Swaroopa Rani versus M Hari Harayan @ Hari Babu” reported in (2008) 5 SCC 765 are relevant. Paras 13 to 17 of the judgment in the case of P Swaroopa Rani (supra) are quoted hereunder for ready reference :- [2025:RJ-JP:51972] (22 of 27) [CRLMP-4269/2021] “13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case. [See M.S. Sheriff v State of Madras AIR 1954 SC 397, Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370 and Institute of Chartered Accountants of India v. Assn. of Chartered Certified Accountants (2005) 12 SCC 226] 14. It is furthermore trite that Section 195(1) (b)(ii) of the Code of Criminal Procedure would not be attracted where a forged document has been filed. It was so held by a Constitution Bench of this Court in Iqbal Singh Marwah (supra) stating: 25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by the said provision would also operate where after commission of an act of forgery the document is subsequently produced in Court, is capable of great misuse. As pointed out in Sachida Nand Singh after preparing a forged document or committing an act of forgery, a person may manage to get a proceeding instituted in any civil, criminal or revenue Court, either by himself or through someone set up by him and simply file the document in the said proceeding. He would thus be protected from prosecution, either at the instance of a private party or the police until the Court, where the document has been filed, itself chooses to file a complaint. The litigation may be a prolonged one due to which the actual trial of such a person may be delayed indefinitely. Such an interpretation would be highly detrimental to the interest of the society at large. 26. Judicial notice can be taken of the fact that the C ourts are normally reluctant to direct filing of a criminal [2025:RJ-JP:51972] (23 of 27) [CRLMP-4269/2021] complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in Clause (b)(ii) is either not placed for trial on account of non- filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (3rd Edn.), para 313, the principle has been stated in the following manner: “The Court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes, however, there are overriding reasons for applying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong.” In regard to the possible conflict of findings between civil and criminal Court, however, it was opined: “32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal Courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle [2025:RJ-JP:51972] (24 of 27) [CRLMP-4269/2021] that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.” It was concluded: 33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195 (1) (b) (ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis. 15. Filing of an independent criminal proceeding, although initiated in terms of some observations made by the civil Court, is not barred under any statute. 16. The High Court, therefore, in our opinion, was not correct in staying the investigation in the said matter. Reliance has been placed by Mr. Gupta on Mahar Jahan and Ors. v. State of Delhi and Ors.(2004) 13 SCC 421wherein this Court was dealing with a proceeding under Section 145 of the Code of Criminal Procedure. This Court noticed that a civil dispute was given the colour of a criminal case. As therein a proceeding under Section 145 of the Code of Criminal Procedure was pending, when a civil suit was also pending before a competent Court of law, it was opined: “4. It is not disputed by the learned Counsel for the parties that this very property which is the subject-matter of these criminal proceedings is also the [2025:RJ-JP:51972] (25 of 27) [CRLMP-4269/2021] subject-matter of the civil suit pending in the civil Court. The question as to possession over the property or entitlement to possession would be determined by the civil Court. The criminal proceedings have remained pending for about a decade. We do not find any propriety behind allowing these proceedings to continue in view of the parties having already approached the civil Court. Whichever way proceedings under Section 145 CrPC may terminate, the order of the criminal Court would always be subject to decision by the civil Court. Inasmuch as the parties are already before the civil Court, we deem it proper to let the civil suit be decided and therein appropriate interim order be passed taking care of the grievances of the parties by making such arrangement as may remain in operation during the hearing of the civil suit. It was furthermore observed: “7. We have simply noted the contentions raised by the parties. The civil Court, in our opinion, would be the most appropriate forum to take care of such grievances and pass such interim order as would reasonably protect the interests of both the parties. The civil Court may issue an ad interim injunction, may appoint a Commissioner or Receiver or may make any other interim arrangement as to possession or user of the property which is the subject matter of proceedings in the civil Court exercising the power conferred on it by Sections 94 and 151 of the Code of Civil Procedure.” It was, therefore, a case where this Court quashed a proceeding under Section 145 of the Code of Criminal Procedure as the matter pending before it arose out of a civil proceeding. Such observations were made [2025:RJ-JP:51972] (26 of 27) [CRLMP-4269/2021] keeping in view the fact that possession of the parties over the property in suit was in question. 17. The impugned order, therefore, cannot be sustained which is set aside accordingly. Civil Appeal arising out of SLP (C) No. 15670 of 2006 is allowed.” 20. Invariably, in the case relating to cheating and fraud, there is generally some element of civil nature. It has been well settled by Hon'ble Supreme Court in catena of judgments that civil and criminal proceedings can be proceeded simultaneously. Both cases are to be decided by adopting separate yardsticks. It is settled that where the factual foundation for the offence has been laid down in the complaint, the High Court should not hasten to quash criminal proceedings merely on the premise that one of the ingredients have been stated with the details or that the facts narrated reveal the existence of commercial or money transaction between the parties. Criminal complaint cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. It is a settled principle of law that where the ingredients of the offences alleged against the accused-petitioner are prima facie made out from a reading of the complaint or the FIR, the criminal proceedings ought not to be interdicted. 21. In wake of discussion made hereinabove, this Court is of the considered opinion that it is not a fit case, warranting exercise of inherent powers under Section 482 of Cr.P.C for quashing the impugned FIR No.139/2021 registered against the petitioners at Police Station Malviya Nagar, Jaipur City (East). 22. Accordingly, these criminal misc. petitions stand dismissed. [2025:RJ-JP:51972] (27 of 27) [CRLMP-4269/2021] 23. Since, both the misc. petitions have been dismissed by this Court, the stay operating in favour of the petitioners is hereby vacated and consequently, the stay applications are also dismissed. 24. Pending application(s), if any, stands dismissed. 25. The observations made hereinabove are only prima facie and shall not prejudice investigation/trial in any manner. (ANIL KUMAR UPMAN),J MANOJ SOLANKI/116-117