Page No.# 1/15 GAHC010069392025 2026:GAU-AS:8208 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./396/2025 ACHINTYA KUMAR BORA SON OF HARESWAR BORA, RESIDENT OF PURANIMATI, KOIBARTA GAON, NEAR CHORACHOWA L.P SCHOOL, PURANI MATI SATRA, KOIBARTA, P.O. AND P.S.- JORHAT , DIST- JORHAT, ASSAM, PIN-785006 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:BIMAL THAKURIA SON OF LATE DHARANIDHAR THAKURIA FLAT NO. A-01 SYNDICATE ARENA NEW SACHAL VIP ROAD GUWAHATI-22 DIST- KAMRUP (METRO) ASSA Advocate for the Petitioner : MR. D BARUAH, MR D KALITA,MS. P HANDIQUE Advocate for the Respondent : PP, ASSAM, MRS S SAIKIA(R-2),MR. R J DAS (R-2) BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 10-06-2026 Page No.# 2/15 Heard Mr. D Baruah, the learned counsel for the petitioner. Also heard Mr. R J Das, the learned counsel for respondent no. 2 and Mr. D P Goswami, the learned Add. PP appearing on behalf of State respondent no. 1. 2. This is an application u/s 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 praying for quashing of the proceeding of C.R. Case No. 589/2024 filed by the complainant/respondent no. 2 pending before the learned Judicial Magistrate, First Class, Kamrup (M) at Guwahati. 3. Mr. Baruah, the learned counsel for the petitioner submitted that the respondent no. 2 filed a complaint case before the learned CJM, Kamrup (M), Guwahati alleging commission of offence by the petitioner u/s 316(2)/318(2)/318(3)/318(4)/314/303/351 of BNS, 2023. It is the case of the complainant that the petitioner approached the respondent/complainant with a request to ply his 2 nos. of Night Super Air-Conditioned buses with Registration Nos. AS-01-QC-1439 and AS-01-QC-1521, which were purchased by the respondent no. 2. Accordingly, respondent no. 2 allowed the petitioner to ply his two buses by executing agreement with the petitioner before the Notary Magistrate on 18.03.2024. As per the agreement the petitioner was supposed to pay the monthly EMI towards the bank loan of the respondent no. 2. In pursuant to the agreement the petitioner also paid two installments i.e. for April and May, 2024 and also made payment for the next three months i.e. June, July and August. But, during that period some dispute arose between the parties and for which the petitioner had stopped plying the buses and there was also default in paying the EMI. However, in the agreement there was a clause for amicable settlement of the dispute through appointing a common arbitrator and on failure to settle the dispute amicably through arbitrator, then only the aggrieved party Page No.# 3/15 may seek necessary relief before the proper forum of law. But, the respondent no. 2 ignored about the clauses in the agreement dated 18.03.2024 executed between the parties and with some ulterior motive only to harass the petitioner the complaint was lodged before the learned CJM. 4. Mr. Baruah, the learned counsel for the petitioner further submitted that in the complaint lodged against him it is stated that the petitioner did not respond though he tried to contact him and he does not know about the whereabouts of the accused/petitioner as well as the 2 nos. of Night Super buses also could not be traced out and it is further alleged that the petitioner had disconnected their GPS devices of the buses to locate it and accordingly it is alleged that the petitioner with a mala fide intention of cheating had executed the agreement and also with an intention for illegal gain had committed fraud on the complainant. But, surprisingly while making the statement before the learned Trial Court below prior to taking cognizance he specifically stated that one bus with Registration No. AS-01-QC-1521 is lying in bay no. 20 of ISBT, Guwahati. Thus in one hand it is alleged that the complainant/respondent no. 2 could not trace out the buses and also could not make any contact with the accused/petitioner but, he himself stated before the learned Court below regarding one bus standing in bay no. 20 of ISBT which is contradictory. From this statement it is seen that he brought some false allegation against the present petitioner and at the time of recording his statement it is well within his knowledge about the availability of the bus in the ISBT. Further, on the same day of taking cognizance the complainant also filed a petition for issuance of search warrant for recovery of those vehicles in spite of the knowledge that one bus is lying in the ISBT. Thereafter the complainant/respondent also filed a petition seeking amendment of the pleadings. But, that was rejected by the Page No.# 4/15 learned Trial Court below. The complainant being aggrieved also approached the learned Sessions Judge with a revision petition but that was also disposed of with a direction to the learned Trial Court below to hear and dispose the petition expeditiously without further delay. 5. It is further submitted by Mr. Baruah that after the order dated 11.04.2025, the bank authority has taken the custody of the bus with Registration No. AS- 01-QC-1521 from the complainant as he is the registered owner of the bus and also a borrower towards the bank authority. Further, the seizure notice for two buses were also issued to the complainant/respondent and the seizure was also made in presence of one Rajib Gogoi for the bus bearing Registration No. AS- 01-QC-1439 and another bus was lying in the bay no. 20 of ISBT. Thus, it is seen that there is neither any criminal breach of trust nor there is any ingredient to fulfill the ingredient of cheating u/s 318(2) of BNS. In the order dated 11.04.2025 also it is seen that the learned Court below had rejected the prayer for issuance of search warrant considering the fact that during the pendency of the said petition one bus has also been seized by the bank authority and other one is still lying in the ISBT. Further he submitted that the petitioner issued a legal notice to the respondent no. 2 on 18.11.2024 after filing of the complaint and before order of cognizance asking the respondent for refund of Rs. 1,82,27,000/- as he suffered huge loss in his business after the transactions made with the present respondent. But, in spite of the issuance of said legal notice the complainant did not refund the said amount and only to harass the present petitioner had made some false statement before the Court on the basis of which the cognizance was taken against the present petitioner. He further submitted that from the plain reading of the complaint as well as considering the other materials on record it is seen that an agreement was executed Page No.# 5/15 between the parties and if there is any dispute on the said agreement the parties can well approach before the civil forum or before the arbitrator for dissolution of dispute and only to harass the present petitioner a civil dispute has given a criminal colour. 6. Mr. Baruah further submitted that the learned Court below had taken cognizance without applying his judicial mind and only on the basis of statement made in the complaint petition as well as the statement of the witnesses recorded therein. He further submitted that a case of cheating and criminal breach of trust cannot come together and there are various observations made by the Apex Court that a case of cheating and criminal breach of trust cannot exists together, though the learned Trial Court below without considering those aspects of the case have taken cognizance against the present petitioner u/s 314/316(2)/318(3)/318(4) of BNS after examining the complaint u/s 223(1) of BNS and to substantiate the plea the learned counsel relied on the decision of Delhi Race Club (1940) Ltd. and Ors. v. State of Uttar Pradesh and Another, reported in (2024) AIR(SC) 4531 and basically emphasized on paragraphs 24, 25, 26, 27, 28, 29, 30, 42, 43, 44 & 45. The para 30 of the said judgment clearly speaks about the distinction between criminal breach of trust and cheating and the same read as under:- “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 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 Page No.# 6/15 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.” 7. He further relied on another decision of Apex Court reported in 2025 LiveLaw (SC) 950 [Arshad Neyaz Khan v. State of Jharkhand and Another] wherein also the Apex Court had expressed the same view. 8. Citing the above referred judgments it is submitted by Mr. Baruah that in the given circumstances the possibility of conviction of the accused/petitioner is very remote and bleak. Rather, it will be an abuse of the process of Court if the proceeding is further allowed to be continued. From the ingredients as discussed above it is seen that the case neither establishes u/s 316 nor there is any ingredient to attract Section 318 of the BNS. The two Night Super buses have already been seized and recovered by the bank authority. Rather, it was well within the knowledge of the respondent regarding the availability of the buses and there may be at best a civil dispute which has been given a criminal colour only to harass the present petitioner. 9. The learned counsel appearing for the respondent no. 2 Mr. R.J. Das submitted that the learned Trial Court below had taken cognizance after proper appreciation of the statement made in the complaint petition as well as the statement of the witnesses and thus there is no reason to interfere with the order passed by the learned Trial Court below. He further submitted that before taking cognizance a pre-cognizance notice was also issued to the petitioner and they accordingly appeared and after an extensive hearing from both the sides Page No.# 7/15 the cognizance was accordingly taken by the learned Court below finding prima facie materials against the petitioner u/s 314/316(2)/318(3)/318(4) of BNS. 10. Mr. Das further submitted that the complaint was ledged on 05.09.2024 and in that period of time the complainant was not aware about the whereabouts of his two Night Super vehicles nor the respondent made any response to his contact and with a view to cheat the present respondent he also removed the GPS tracker from the two Night Super buses. After lodging of the complaint only the petitioner issued a legal notice to the complainant directing him for payment of Rs. 1,82,27,000/- which he is not legally authorized to do so. Further he stated that from the Notice itself it is seen that the two Night Super buses were in the custody of the present petitioner at the time of issuing Notice and he was ready to hand over those buses only with a condition if the petitioner is ready to pay Rs. 1,82,27,000/- as claimed by the respondent. Thereafter the cognizance was taken after hearing both sides only on 21.12.2024 in which day there was no recovery of vehicle and finding prima facie material the cognizance was taken by the learned Trial Court below. He further submitted that the complaint was lodged on 05.09.2024 and the respondent no. 2 gave his statement on 21.12.2024 i.e. on the day when the cognizance was taken and without suppressing the fact the complainant/respondent no. 2 had revealed that as per his information the bus with the Registration No. AS-01-QC-1521 was lying in the bay no. 20 of ISBT. But, till that period there was no recovery of the buses who made the genuine statement of information regarding the availability of one bus in ISBT. He further submitted that only the cognizance of the case was taken by the learned Trial Court below and thus it is in very pre-matured stage for quashing of the petition and the petitioner will get ample opportunity to bring his case at the time of Page No.# 8/15 charge hearing and also at the time of recording evidence. He further submitted that both the vehicles were seized by the bank authority and after lodging of the complaint by the present respondent. Further he submitted that from the legal notice it is seen that both the vehicles were in possession of the petitioner but, what prevented him from delivering those vehicle legally to the respondent no. 2 and without having any authority he demanded Rs. 1,82,27,000/- for returning the vehicle which otherwise proves that at the time of institution of the complaint both the vehicles were in possession of the petitioner. 11. Mr. Das accordingly submitted that there is a prima facie material establishes against the present petitioner and on the basis of which after hearing both sides at pre-cognizance stage the learned Trial Court below had taken cognizance and hence there cannot be any reason for quashing the entire criminal case at this stage. However, he submitted that whether the case attracts Section 316 or 318 of BNS may be decided subsequently at the time of charge hearing or at the time of trial. But, this is at very pre-matured stage wherein the case cannot be quashed and it is not at all a fit case for quashing by invoking power u/s 528 of BNSS. 12. Mr. D P Goswami, the learned Addl. PP appearing on behalf of State respondent no. 1 also submitted that the learned Trial Court below had rightly took cognizance of the offence after hearing both the parties at the pre- cognizance stage and finding a prima facie case, the cognizance is accordingly taken and hence there is no need of any interference in the order of cognizance passed by the learned Trial Court below. Further he submitted that it is also not a fit case to quash the proceeding which is at a very initial and premature stage. Mr. Goswami accordingly submitted that the petition for quashing may be dismissed. Page No.# 9/15 13. Hearing the submission made by learned counsel for both sides, I have also perused the scanned copy of the TCR and other relevant documents. It is the case of the petitioner that after entering into an agreement with the respondent no. 2, he was plying the Night Super vehicle on the road and in pursuant to the agreement also he was paying the monthly EMI before the Bank. But, subsequently some dispute arose between the parties and for which he stopped plying the vehicle and also stopped making payment of EMI. But, there was clause in the agreement itself for resolution of the dispute by approaching a common arbitrator if any dispute arises and in the same time if there is any failure by the arbitrator for resolving the dispute, the aggrieved party may approach the appropriate forum of law for legal help. But, without approaching any appropriate forum, a criminal case has been instituted against the present petitioner with the allegation of criminal breach of trust and cheating. It was purely a civil dispute which has been given a criminal colour by the respondent no. 2 only to harass the present petitioner for his wrongful gain. That apart, it is also the case of the petitioner that he issued a legal notice to the respondent to return back his vehicle by giving Rs. 1,82,27,000/- which he incurred loss after he entered into an agreement. But, without responding to the said notice, case has been instituted against the present petitioner. 14. On the other hand, it is the case of the respondent that after agreement between the parties, the two Night Super buses were allowed to ply by the petitioner. But, thereafter he stopped making any contact with the respondent. Though he tried to contact him, the petitioner did not make any response and the GPS devices of two buses were also disconnected which created another problem to locate the Night Super buses. It is further allegation of the respondent no. 2 that the petitioner with mala fide intention had cheated and Page No.# 10/15 with a view of cheating only the agreement was also executed only for illegal gain and also committed fraud on the respondent. 15. From the submission as well as from the record itself it is seen that the complaint was lodged on 05.09.2024, with a statement that the two Night Super buses could not be located as the GPS system have been disconnected by the petitioner and also there was a prayer for issuing of search warrant against the petitioner. But, it is fact that while giving the statement by the respondent no. 2 on 21.12.2024 he made a statement that one Night Super bus is lying in the bay no. 20 of ISBT. Thus, at the time of recording his statement it was within his knowledge that one bus is lying in the bay no. 20 of ISBT. But, at the same time it also cannot be denied that at the time of lodging the complaint i.e. on 05.09.2024, there was no information regarding location of the two Night Super buses though at the time of giving his statement he could locate one bus in bay no. 20 of ISBT. Thus, it is seen that without suppressing the fact he made a genuine statement before the learned Trial Court below stating that one bus could be located which was lying in the bay no. 20 of ISBT. But, during the pendency of the case it is seen that two buses were recovered by the bank authority. 16. Further it is seen that after receiving the pre-cognizance notice by the petitioner by issuing the notice the petitioner demanded Rs. 1,82,27,000/- and asked the respondent to take back his vehicle on payment of the said amount. Thus, from the notice itself it is seen that at the time of institution of the complaint the two Night Super buses were within the possession of the petitioner and for that only he issued a legal notice demanding Rs. 1,82,27,000/- saying that he incurred a huge loss after execution of the said agreement. But, after institution of the complaint he issued those notices Page No.# 11/15 without any authority and rather he could have been informed the Court regarding the availability of two buses within his possession. But instead of informing the Court he issued a Demand Notice wherein he demanded Rs. 1,82,27,000/- for returning his two Night Super buses. 17. It is also seen that before taking cognizance by the learned Trial Court below, had issued pre-cognizance notice to the petitioner and after receiving the pre-cognizance notice he appeared and giving an extensive hearing to both the parties the learned Trial Court below had took cognizance, finding a prima facie material for the same. Thus, it also cannot be stated that without giving an opportunity of hearing to the other side or without applying the judicial mind, the learned Trial Court below had taken cognizance of the offence. 18. The learned counsel for the petitioner also raised the issue that in a case two sections i.e. the cheating and criminal breach of trust cannot come together. But, in the instant case the cognizance has been taken u/s 314/316(2)/318(3)/318(4) of BNS with the allegation of both criminal breach of trust as well as cheating. The learned counsel for the petitioner while making his submission also relied on a decision of the Apex Court wherein it is held that the cheating and the criminal breach of trust cannot exist together. It is a fact that both the sections of criminal breach of trust and cheating cannot exist together. For criminal breach of trust, the property must have been entrusted to the accused or must have domain over it. There is distinction between criminal breach of trust and cheating and for cheating the criminal intention is necessary at the time of making false or misleading representation that is since inception. On the other hand, in the criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriate the same. 19. But, it is a case of very pre-matured and initial stage wherein only Page No.# 12/15 cognizance has been taken finding a prima facie material and it is also well settled that at the stage of issuing process it is not the duty of the Court to evaluate or appreciate the evidence on record or to make any conclusion as to whether the accused would be convicted or acquitted The only object at this stage is to determine whether the sufficient ground for proceeding the case further is present or not. In case of Delhi Race Club (1940) Ltd. and Ors. v. State of Uttar Pradesh and Another, reported in (2024) 10 SCC 690 held in paragraph 15 as herein under:- “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 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.” 20. In the instant case also it is seen that finding some prima facie material at the time of pre-cognizance hearing, the learned Trial Court below had took cognizance under the sections as referred above. 21. 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 Page No.# 13/15 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 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. Page No.# 14/15 (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.” 22. In the instant case also it is seen that on the plain reading of the complaint itself it is seen that there is a prima facie case against the accused/petitioner and hence it cannot be held that there is no prima facie case against the petitioner at the face value of the complaint for quashing or setting aside the criminal proceeding instantly. More so, it is seen that the charge is yet to be framed by the learned Trial Court below and hence at the time of charge hearing also the petitioner will get ample opportunity, praying for his discharge. Thus at this stage it cannot be held that the petitioner will be prosecuted under the above referred sections under which the cognizance was taken by the learned Trial Court below. At the time of taking cognizance it is not necessary for a Magistrate to go for the entire evidence on record or to brush out the statement made by the witnesses during investigation. Cognizance can be taken if prima facie found any cognizable offence against the accused/petitioner. 23. So considering all these aspects of the case, materials available in the case record as well as the statement made in the complaint and the witnesses, this Court is of opinion that it is not a fit case to set aside and quash the entire criminal proceeding of C.R. Case No. 589/2024 filed by the complainant/respondent no. 2 pending before the learned Judicial Magistrate, First Class, Kamrup (M) at Guwahati by invoking power u/s 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Page No.# 15/15 24. Accordingly, the present petition stands dismissed and disposed of. JUDGE Comparing Assistant