Page No.# 1/12 GAHC010258362025 2026:GAU-AS:6584 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1457/2025 ABDUL SALAM SHAH S/O- LATE MOMIR UDDIN SHAH VILL- KHOPATI PART-III PO- HAZIRHAT PS- SUKCHAR DIST- SOUTH SALMARA MANKACHAR, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR TO THE GOVT. OF ASSAM, GAUHATI HIGH COURT. 2:ABDUL BATEN SARKAR S/O- LATE NAZIBUDDIN SARKAR VILL- GOTABARI PO- HAZIRHAT PS- SUKCHAR DIST-SOUTH MANKACHAR ASSAM PIN 783128 SALMAR Advocate for the Petitioner : MR. N J DUTTA, MR Z RAHMAN,MR S PRODHANI,MR. A M KHAN Advocate for the Respondent : PP, ASSAM, MR. MEHUL SHAH (R-2),MR. S C BISWAS (R- 2),MS. R DEVI (R-2) BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 13-05-2026 Page No.# 2/12 Heard Mr. N J Dutta, the learned counsel for the petitioner. Also heard Mr. M P. Goswami, the learned Addl. Public Prosecutor appearing on behalf of the State respondent and Mr. S C Biswas, the learned counsel appearing on behalf of informant. 2. This is an application u/s 528 read with Section 438 and Section 442 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 praying for setting aside and quashing of the PRC Case No. 332/2025 pending before the Chief Judicial Magistrate, South Salmara, Mankachar, Assam and arising out of impugned Charge Sheet No. 57/2025 dated 20.09.2025 (corresponding to Sukchar P.S. Case No. 40/2025 u/s 61(2)/318(4)/316(2) of BNS, 2023. 3. It is submitted by Mr. Dutta that only for personal grudge the FIR has been lodged against the present petitioner with some false and concocted allegation wherefrom it is seen that the informant has some personal enmity with the accused/petitioner being the neighbour of one Sofiqul Islam who is the informant in a case which is registered as Sukchar P.S. Case No. 41/2025 and as the petitioner got elected in Panchayat Election by defeating the son of the informant of above stated case. It has been alleged in the FIR that about 2 years ago the petitioner had taken an amount of Rs. 2,54,000/- from the informant with a promise to give a Tractor. But, no such tractor was given and the money has also not been returned back. He also threatened the informant if he demands to get back the money. 4. Mr. Dutta further raised the issues that the Charge Sheet is submitted u/s 61(2)/318(4)/316(2) BNS but, there is no ingredient to attract Section 61(2), which is criminal conspiracy, as the case has been lodged only against the present petitioner and there is no other person to have any criminal conspiracy Page No.# 3/12 against the informant. Apart from that he submitted that 318(4) and 316(2) is cheating and criminal breach of trust cannot co-exists together. But, the Charge Sheet has been filed under those sections and the cognizance of the offence is also taken by the learned Court below under the said section of law. In that context, Mr. Dutta relied on a decision of Hon’ble Apex Court in the case of Delhi Race Club (1940) Limited and Others v. State of Uttar Pradesh & Another, reported in (2024) 10 SCC 690 and basically emphasized on paragraphs 39, 40, 43 & 55 which reads as under:- “39. 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 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.” 40. 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. 43. There is a distinction between criminal breach of trust and cheating. For cheating, Page No.# 4/12 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. 55. It is high time that the police officers across the country are imparted proper training in law so as to understand the fine distinction between the offence of cheating viz-a-viz criminal breach of trust. Both offences are independent and distinct. The two offences cannot coexist simultaneously in the same set of facts. They are antithetical to each other. The two provisions of the IPC (now BNS, 2023) are not twins that they cannot survive without each other. 5. Citing the above referred judgment it is submitted by Mr. Dutta that it is well settled that both Section 318(4) and Section 316(2) cannot come together in the same time. Thus, he submitted that there is no prima facie case to proceed with the case further against the present petitioner nor there is any material to frame charge against the accused petitioner. He further submitted that if the case is allowed to be continued further will nothing be but the abuse of the process of Court and hence it is a fit case to quash the entire criminal proceeding including the FIR and Charge Sheet by invoking power u/s 528 BNSS. Mr. Dutta further submitted that the objection filed by the informant side also admitted that basically this case is of civil in nature while submitting their written objection. 6. Mr. Goswami, the learned Addl. PP submitted in this regard that after enquiry the case is already charge-sheeted finding prima facie case against the present petitioner. Further he submitted that from the plain reading of the FIR itself it is seen that there is a prima facie case to initiate a proceeding against the present petitioner and it is not a case that the statements made in the FIR does not disclose a prima facie case to quash the entire criminal proceeding. 7. Mr. Goswami further submitted that the Charge Sheet is not yet framed and Page No.# 5/12 the petitioner will get ample opportunity to raise these issues at the time of framing of charge. Further, he submitted that case is charge-sheeted against the accused/petitioner u/s 61(2)/318(4) and 316(2) BNS. But, till date the learned Trial Court below has not framed charge by applying its judicial mind and hence it cannot be held that the charges will be framed according to the sections under which the case has been charge-sheeted. Mr. Goswami also submitted that at the time of taking cognizance, the duty of the Court is to see as to whether any prima facie case is present to take cognizance against the accused/petitioner and there is no need of any appreciation of evidence is required at the stage of taking cognizance or at the stage of disposing an application u/s 528 BNSS. 8. Mr. Goswami also relied on paragraphs 12, 13 & 14 of the above referred judgment wherein it has been observed by the Hon’ble Apex Court that mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. The paragraphs 12, 13 & 14 of the said judgment read as under:- “12. It is by now well settled that at the stage of issuing process it is not the duty of the Court to find out as to whether the accused will be ultimately convicted or acquitted. The object of consideration of the merits of the case at this stage could only be to determine whether there are sufficient grounds for proceeding further or not. Mere existence of some grounds which would be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand, such grounds may indicate the need for proceeding further in order to discover the truth after a full and proper investigation. 13. If, however, a bare perusal of a complaint or the evidence led in support of it shows essential ingredients of the offences alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, then of course, the complaint is liable to be dismissed at that stage only. 14. What the Magistrate has to determine at the stage of issue of process is not the correctness or the probability or improbability of individual items of evidence on disputable grounds, but Page No.# 6/12 the existence or otherwise of a prima facie case on the assumption that what is stated can be true unless the prosecution allegations are so fantastic that they cannot reasonably be held to be true. [See : D.N. Bhattacharjee v. State of West Bengal. ” 9. Mr. Goswami also relied on another decision of Hon’ble Apex Court in Special Leave Petition (Crl) No. 3662/2023[Supriya Jain v. State of Haryana & Anr.] and emphasized in para 17 which reads as under:- “17. This is a case where the charges have been framed and the accused are awaiting trial. Having regard to the totality of the facts and circumstances, noticed above, we are of the considered opinion that the investigation and the follow-up steps are not so patently and unobtrusively defective or erroneous (except to the extent we propose to mention before concluding our judgment) that allowing the trial to progress might cause a miscarriage of justice. This is also not an appropriate stage to delve deep into the records. It is no part of the business of any of the courts to ascertain what the outcome of the trial could be, ~ conviction or acquittal of the accused. The small window that the law, through judicial precedents, provides is to look at the allegations in the FIR and the materials collected in course of investigation, without a rebuttal thereof by the accused, and to form an opinion upon consideration thereof that an offence is indeed not disclosed from it. Unless the prosecution is shown to be illegitimate so as to result in an abuse of the process of law, it would not be proper to scuttle it. The principles to be borne in mind with regard to quashing of a charge / proceedings either in exercise of jurisdiction under section 397, Cr. PC or section 482, Cr. PC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarized by this Court succinctly. In Amit Kapoor vs. Ramesh Chandra1, this Court laid down the following guiding principles: “27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. Page No.# 7/12 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a ‘civil wrong’ with no ‘element of criminality’ and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from Page No.# 8/12 fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist. *** 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.” 10. Accordingly Mr. Goswami submitted that it is not at all a fit case to quash criminal proceeding, the FIR and Charge Sheet at this stage and prayed for disposal of the same. 11. Mr. Biswas, the learned counsel for the informant also submitted in this regard that there are sufficient prima facie materials to take cognizance and to proceed with the hearing of the case against the present petitioner and he further submitted that the petitioner is a politically very powerful man and there are several similar nature of cases are pending against him. He further submitted that considering the materials in the case record, especially in the FIR, it may not be a fit case for quashing by invoking power u/s 528 BNSS. 12. Heard the learned counsels for the parties and also perused the scanned copy of the TCR and other annexure filed along with the petition. It is a case of the petitioner that with false and concocted allegation the FIR has been lodged only due to some earlier personal/political grudge and it is further the case of the petitioner that there cannot be any case u/s 61(2) BNS as no other person is involved to make any criminal conspiracy and the case cannot be prosecuted u/s 318(2) and 316(4) of BNS at the same time against any person. As stated Page No.# 9/12 above, the learned counsel for the petitioner also cited decision in this regard. But, on perusal of the case record it is seen that the allegation of cheating is brought against the present petitioner wherein it is alleged that he had cheated the informant by inducing him to pay an amount of Rs. 2,54,000/- with a promise to provide Tractor. However, it is well settled that the case u/s 318(2) and 316(4) BNS cannot be tried together at a time against any person. But, it is seen that the charge is yet to be framed by the learned Trial Court below and at the time of charge hearing the petitioner will get ample opportunity for praying of his discharge. Thus, at this stage it cannot be held that the petitioner is prosecuted u/s 61(2)/318(2) and 316(4) BNS under which he was charge- sheeted. At the time of taking cognizance it is not necessary for the Magistrate to go for the entire evidence of record or to brush out the statements made by the witnesses during investigation. Cognizance can be taken if prima facie found any cognizable offence against any accused/person. 13. In the judgment relied by the learned counsel for the petitioner in case of Delhi Race Club & Others (supra) the Hon’ble Apex Court has expressed the view that at the time of issuing process or taking cognizance the Magistrate is only to be prima facie satisfied whether there is sufficient ground for proceeding against the accused. The detailed discussion of the merits or demerits of the case is not required at the time of issuing process. In para 15 of the above referred judgment it has been held that:- “15. Further it is also well settled that at the stage of issuing process a Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can the High Court go into this matter in its inherent jurisdiction which is to be sparingly used. The scope of the inquiry under Section 202 of the CrPC is extremely limited — only to the ascertainment of the truth or falsehood of the Page No.# 10/12 allegations made in the complaint — (i) on the materials placed by the complainant before the Court (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out, and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have.” 14. In case of State of Haryana v. Bhajan Lal, reported in 1992 Supple. 1 SCC 335, the Hon’ble Apex Court had provided several guidelines while disposing the criminal petition for quashing. The following guidelines are issued in para 102, which reads 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 channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such powers 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 entirely 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 expert 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. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section Page No.# 11/12 155(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 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.” 15. In the instant case it is seen that on the plain reading of the FIR itself a prima facie case reveals against the accused/petitioner and hence it cannot be held that there is no prima facie case against the present accused/petitioner at the face value of the FIR for quashing or setting aside the criminal proceeding instantly. 16. So, considering all these aspects of the case, materials available in the case record as well as the statement made in the FIR, this Court is of the opinion that it is not a fit case to set aside and quash the entire criminal proceeding i.e. the PRC Case No. 332/2025 pending before the Chief Judicial Magistrate, South Salmara, Mankachar, Assam and arising out of impugned Charge Sheet No. 57/2025 dated 20.09.2025 (corresponding to Sukchar P.S. Case No. 40/2025 u/s 61(2)/318(4)/316(2) of BNS, 2023 and FIR dated 21.06.2025 by invoking the power u/s 528 BNSS. Page No.# 12/12 17. Accordingly, the present petition stands disposed of. JUDGE Comparing Assistant