As per case facts, Petitioners in two Writ Petitions sought to quash an FIR related to alleged cheating and criminal breach of trust, arguing it was a commercial dispute. The ...
SPG WP-3023-2022 with 3555- 2022.doc
S
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3023 OF 2022
1. Mr. Dharmendra Rathore
S/o. Gore Lal Rathore
Age : 49 years, Occupation : Professional
R/at: 2712, Overseas Apartment, Plot No. F-9
Sector 50, Gautam Buddha Nagar, Noida
Uttar Pradesh 201301
2. Mr. Dheeraj Mehta
S/o. A. K. Mehta
Age : 49 years, Occupation : Professional
R/at: B-1/705, Paradise Apartments,
Plot No.40, I. P. Extn., Patparganj, East Delhi
Delhi 110092. … Petitioners
V/s.
1. The State of Maharashtra
(Through P. I., Yerawada Police Station,
Pune).
2. Mr. Ramdas Anandrao Kamthe
Age : 56 Years, Occupation : Business,
R/o. Plot No.33, Padmachaya Society,
Gulmohar Bungalow, Kharadi, Pune
Maharashtra. … Respondents
WITH
WRIT PETITION NO. 3555 OF 2022
1. Smt. Charu Srivastava
W/o. Late Umang Srivastava
Age : 46 years, Occupation : Business
R/at: G-11, 2
nd
Floor
Green Park Extension
South West Delhi, Delhi 110016
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2. Mr. Neeraj Mittal
S/o. Late S. C. Mittal
Age : 54 years, Occupation : Professional
R/at: 26, Shivalik Apartments
Alaknanda, South Delhi
Delhi 110019
3. Mr. Raj Kumar
S/o. Babu Lal
Age : 56 years, Occupation : Professional
R/at: C-5, Eldeco Residency Greens, First Floor,
Greater Noida, Gautam Buddha Nagar,
Sector 50, Gautam Buddha Nagar, Noida
Uttar Pradesh 201308
… Petitioners
V/s.
1. The State of Maharashtra
(Through P. I., Yerawada Police Station,
Pune).
2. Mr. Ramdas Anandrao Kamthe
Age : 56 years, Occupation : Business
R/at: Plot No.33, Padmachaya Society,
Gulmohar Bungalow, Kharadi, Pune,
Maharashtra
… Respondents
______________________
Mr. Vikram Sutaria a/w. Mr. Hrituraj Singh, Leepika R. i/b Bansal Chorbele
Law Chambers for the Petitioners in both Writ Petitions.
Mr. Ashish I. Satpute, A.P.P. for Respondent No.1-State.
Mr. Drupad Patil for Respondent No.2 in both Petitions.
Mr. Lamkhade, API, Yerwada Police Station, Pune.
______________________
CORAM :A. S. GADKARI AND
RANJITSINHA RAJA BHONSALE, JJ.
RESERVED ON :16
th
OCTOBER 2025
PRONOUNCED ON :11
th
FEBRUARY 2026
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JUDGMENT [Per: RANJITSINHA RAJA BHONSALE, J] :-
1) By the present Petitions under Article 226 of the Constitution of
India read with Section 482 of Code of Criminal Procedure, 1973, the
Petitioners seek to quash the FIR bearing C.R. No.240 of 2022, dated 29
th
May
2022 registered with Respondent No.1 i.e. Yerwada Police Station, Pune,
under sections 406, 420, 120-B read with 34 of Indian Penal Code along with
proceedings therein. The said F.I.R. has been filed by the Respondent No.2 i.e.
original Complainant.
2) Heard Mr. Vikram Sutaria for the Petitioners, Mr. Ashish Satpute,
A.P.P for Respondent No.1-State and Mr. Patil for Respondent No.2. Perused
the record.
3) By Order dated 21
st
October 2022, this Court had issued Notices
to the Respondents. Respondent No.1 was directed to continue with the
investigation but not to file charge-sheet without the leave of this Court. Writ
Petition No. 3023 of 2022 was directed to be tagged alongwith Criminal Writ
Petition No.3555 of 2022.
4) In Writ Petition No 3023 of 2022, the Petitioner No. 1 is the
original Accused No.1 and the Petitioner No.2 is the original Accused No.2 in
C.R. No. 240 of 2022 of which the Petitioners seek quashing. It is the
contention of the Petitioners that a Term Sheet dated 15
th
November 2016 was
executed between the wives of the Petitioners and the Respondent No.2. That,
as per the Term Sheet, the wives of the Petitioners were inducted as Whole
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Time Directors of the Respondent No.2’s company. It was agreed that, the
wives of the Petitioners would be a part of the interactive team of the
Respondent No.2’s company. That, the salary of Rs. 3,00,000/- (Three lakhs)
per month would be paid to them with effect from 1
st
March 2017.
4.1) That, an Agreement was executed on 1
st
September 2018 with the
Petitioner No.1 whereby the Respondent No.2’s company had appointed the
Petitioner No.1 as a Consultant with a lock-in period of 3 years from 1
st
September 2018. That, the Respondent No.2’s company had agreed to pay an
amount of Rs.3,00,000/- per month to the Petitioner No.1 as compensation.
That, the Respondent No.2, has vide an e-mail dated 17
th
July 2018, addressed
to Cosmos Bank specifically admitted that the Petitioner No.1 is an Invitee
Director and that it was agreed/proposed to allot 30% of the company shares
to the Petitioner No.1 as sweat equity. The Petitioners submit that, no prima
facie case is made out against the Petitioners for the offences under the
provisions of the Indian Penal Code as alleged. That, the FIR has been lodged
with ulterior motives to harass the Petitioners. That, the guidelines issued by
the Hon’ble Apex Court in the case of
State of Haryana Vs. Bhajan Lal , 1992
Supp. (1) SCC 335,
would very squarely applicable to the present case.
5) In Writ Petition No 3555 of 2022, the Petitioner No. 1 is the
original Accused No.5 and wife of Mr. Umang Srivastava (since deceased), the
original Accused No.3. The Petitioner No.2 and 3 are the original Accused
Nos.4 and 6 in C.R. No. 240 of 2022. That, the Petitioner No.2 had resigned
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from the directorship of the Casa Brands India Pvt. Ltd., on 31
st
January 2022
and had never actively been involved in the decision making process. That,
Casa Brands India Pvt. Ltd. was totally run by late Shri. Umang Srivastava
(Accused No.1). That, Petitioner No.3 is a professional director in Krsna Home
Products Pvt. Ltd and that Krsna Home Products Pvt. Ltd is not liable to pay
any amount to the Respondent No.2. That, the relationship between
Respondent No.2 and the Petitioners/Casa Brands India Pvt. Ltd is of
contractual nature. That, there is a business agreement for sourcing of ‘Bonita’
branded products of Casa Brands India Pvt. Ltd. That, on 6
th
August 2019, the
Respondent No.2’s company i.e. Perfektion (Asia) Pvt. Ltd. was appointed as a
partner for the purchase of furnished goods from Krsna Home Brands Pvt. Ltd
and was to supply the same to Casa Brands India Pvt. Ltd. That, the said
transaction is purely commercial and business transaction and any dispute
there from would be civil in nature.
6) Learned APP appearing for the State, informed that, the
investigation has been completed and the charge-sheet is ready to be filed in
the concerned Trial Court. Learned APP further submitted that, the
Investigation Agency has prima facie found the involvement of the Petitioners
in the crime and therefore the Petitioners will be charge-sheeted.
7) In the backdrop of the aforesaid submissions of the learned A.P.P
and after considering the said factual position and more particularly in view of
the observations of the Hon’ble Supreme Court in the cases of (i)
Iqbal alias
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Bala and Ors. Vs. State of U.P. and Ors (2023)8 SCC 734: 2023 Online SC
949)
and (ii) Central Bureau of Investigation V/s. Aryan Singh, reported in
(2023) 18 SCC 399 the
learned Advocate for the Petitioner was asked as to
whether the Petitioner would prefer the option of availing the alternate
remedy, which without being unduly onerous provided an equally efficacious
remedy of approaching the learned trial Court under the provisions of the
Code of Criminal Procedure, 1973 or the Bharatiya Nagarik Suraksha Sanhita,
2023. Learned Advocate appearing for the Petitioners, after considering the
observations and the ratio laid down by the Hon’ble Apex Court, in the
aforenoted judgements insisted to go on with the merits of present Writ
Petitions.
8) The facts germane to consider if the Petitioner has been able to
make out a case for quashing of the criminal prosecution under section 482 of
the Code of Criminal Procedure, 1973 are as under:
8.1) The present FIR has been filed by the Respondent No.2, who
conducts his business at Pune in the name of Eagle Logistics and Perfektion
(Asia) Pvt. Ltd. It is contended that, the Respondent No.2 was desirous of
expanding his business/starting a business on larger scale for his children. In
or around June 2016, he through a friend Mr. Shrikant Tanwade, was
introduced to one Mr. Dharmendra Rathod and Mr. Dheeraj Mehta. That, Mr.
Dharmendra Rathod, who was working at a senior/important post in IEKA, a
multinational company, advised him to start a company and that he will
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appoint a Respondent No.2 as an original equipment manufacturer. That, on
the said assurance, Respondent No.2 along with Mr. Dharmendra Rathod and
Mr. Dheeraj Mehta inspected a property at Shikrapur, Pune for establishment
of a company.
8.2) That, Mr. Dharmendra Rathod and Mr. Dheeraj Mehta showed
their inclination to leave their job with IKEA and join the Respondent No.2.
That, they proposed that, they get a partnership of 30% and deposit of
Rs.36,00,000/-.
8.3) That, the Respondent No.2, refused the partnership offer, but
agreed to deposit the amount of Rs.36,00,000/-. That, in the year 2016-2017,
an amount of Rs 36,00,000/- was deposited in the bank account of the wives
of Mr. Dharmendra Rathod and Mr. Dheeraj Mehta. That, Respondent No.2,
had paid an amount of Rs.26,00,000/- by cheque to develop relationship with
the officer of IKEA.
8.4) That, in the year 2019, about 90% of the construction work of the
building of the Respondent No.2 company was completed and the same would
functional in about 5 to 6 months. That, the Mahanagar Co-operative Bank
had sanctioned the Cash Credit Loan of Rs.1,35,00,000/- to Respondent No.2.
8.5) That, Mr. Dharmendra Rathod told Respondent No.2 that, he is
acquainted with the Directors of (i) Casa Brands India Pvt. Ltd and (ii) Krsna
Home Products Pvt. Ltd. That, Respondent No.2 should purchase products
from Krsna Home Products Pvt. Ltd. and sell the same to Casa Brands India
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Pvt. Ltd. That, for the said transaction, Casa Brands India Pvt. Ltd. will pay
6.75% profit on the products purchased by them. The said payment would be
made within the next 3 months and Respondent No.2 would get a good
trading margin, which would be helpful to pay interest on the bank loan, etc.
8.6) That, in the month of July, 2019, Respondent No.2 and his friend
Mr. Shrikant Tanawade went to Delhi for a business meeting/talks with
Petitioner Nos.1 to 3, Directors of companies Casa Brands India Pvt. Ltd and
Krsna Home Products Pvt. Ltd. That, the Petitioner No.1 to 3 represented to
Respondent No.2 that they want to start business transactions with him, and
there would be a huge turnover if he can buys products from Krsna Home
Products Pvt. Ltd and sells them to Casa Brands India Pvt. Ltd. The
Respondent No.2 would get profit of 6.75%.
8.7) That, based on the said representations, Respondent No.2
company placed an order of Rs.2,63,18,554/- to Krsna Home Products Pvt.
Ltd. and paid an amount of Rs.1,39,77,940/- towards the said order. This
amount was paid from Respondent No. 2 cash credit account of Mahanagar
Bank. That, on 8
th
August 2019, Casa Brands India Pvt. Ltd. placed an order of
Rs.2,64,05,456/- with Respondent No.2. For the said sale order the
Respondent No.2’s company raised a bill of Rs.1,63,16,845/ on Casa Brands
India Pvt. Ltd.
8.8) That, from 11
th
November, 2019 till 28
th
February, 2020, Casa
Brands India Pvt. Ltd. paid Rs.61,95,006/- through RGTS to Respondent No.2.
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That, on 24
th
March, 2020, Casa Brands India Pvt. Ltd. transferred an amount
of Rs.1,00,000/- and on 28
th
August, 2020 transferred an amount of Rs.1,00,
955/- thereby paying a total amount of Rs.63,95,061/-. That, an amount of
Rs.75,81,979/- was due from Casa Brands India Pvt. Ltd.
8.9) That, after the Covid-19 Pandemic/lockdown, Respondent No.2
started demanding amount from the Directors of Casa Brands India Pvt. Ltd.
No payments were made. As Respondent No.2 was suspicious, he visited the
Petitioners at Delhi. That, Respondent No.2 could not meet the Directors but
gathered information that, the said companies i.e. Krsna Home Products Pvt.
Ltd. and Casa Brands India Pvt. Ltd. exchanged orders only on paper and that
there was no production and/or selling of any product. That, further inquiries
revealed that the members of the same family are the Directors of Krsna Home
Products Pvt. Ltd. and Casa Brands India Pvt. Ltd. That, these facts were
suppressed and the Respondent No.2 was made to place the orders. That,
Respondent No.2 was made to place purchase orders and make payments to
Krsna Home Products Pvt. Ltd. That, Casa Brands India Pvt. Ltd. paid only
Rs.63,95,061/- out of the total bill of Rs.1,63,16,845/-, leaving an amount of
Rs.75,81,979/- as outstanding. Respondent No.2 and his company were used
by Krsna Home Products Pvt. Ltd. and Casa Brands India Pvt. Ltd. for their
benefit. That, the profit of 6.75% was not paid to Respondent No.2. On these
facts, the FIR has been registered of which quashing is now sought.
9) Learned Advocate for the Petitioner submits that, the transaction
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between Respondent No.2 and Casa Brands India Pvt. Ltd. is a commercial
contract and dispute arising therefrom is a civil dispute. Learned Advocate for
the Petitioner submits that, Petitioner No.1 is the wife of Umang Srivastava
(Accused No.1) who expired on 22
nd
April, 2021. That, Umang Srivastava was
the Director of Casa Brands India Pvt. Ltd. That, Petitioner No.2 has resigned
from the directorship of Casa Brands India Pvt. Ltd on 31
st
January, 2020 and
was never actively involved in decision making process and that the company
was totally run by Umang Srivastava. That, the Petitioner No.3 of Krsna Home
Products Pvt. Ltd. has been dragged in by the Respondent No.2 with ulterior
motives and that Krsna Home Products Pvt. Ltd. is not liable to pay any
amount to Respondent No.2.
9.1) Learned Advocate for Petitioner would then refer to the Notice
dated 2
nd
November, 2020 issued by the Lit Con Legal Associates on behalf of
Complainant/Respondent No.2 to contend that, the tone and tenure of the
notice clearly indicate that, the entire transaction is a commercial transaction
and the disputes arising therefrom are civil in nature. Learned Advocate
further submits that the said FIR is required to be quashed and set aside.
10) We have perused the entire record including FIR. The crux of the
allegations made by the Respondent No.2 is that, it was on the representation
and the assurances of the Petitioners and companies related to the Petitioners
that, the Respondent No.2 incurred huge financial expenses/liability and
advanced monies to the said companies. According to the Respondent No.2,
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subsequent inquiries revealed that, the said assurance and representations
were either false, misleading or incorrect. We note that, FIR has been lodged
under Section 406, 420, 120-B r/w. 34 of Indian Penal Code. The Learned APP
has informed this Court that, the investigation is now completed and a case
has been made out against the Petitioners. The learned APP would submit that
the charge-sheet is ready to be filed.
11) The Hon’ble Apex Court in the case of
Iqbal alias Bala and Ors.
Vs. State of U.P. and Ors (2023)8 SCC 734: 2023 Online SC 949)
has held
that, even if the allegations in the FIR do not inspire any confidence more
particularly in the absence of any specific date, time, etc. of the alleged
offences, the appellants therein should prefer discharge application before the
trial Court under Section 227 of the Code of Criminal Procedure as the
investigation is over and charge sheet is ready to be filed before the
competent Court of jurisdiction. The Hon’ble Apex Court in paragraphs 6 and
7 in the case of
Iqbal alias Bala V/s. State of U. P. reported in (2023) 8 SCC
734
has observed that,
“6. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question
that falls for our consideration is whether we should quash the FIR?
7. It is relevant to note that the victim has not furnished any
information in regard to the date and time of the commission of the
alleged offence. At the same time, we also take notice of the fact
that the investigation has been completed and charge sheet is ready
to be filed. Although the allegations levelled in the FIR do not
inspire any confidence more particularly in the absence of any
specific date, time, etc. of the alleged offences, yet we are of the
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view that the appellants should prefer discharge application before
the Trial Court under Section 227 of the Code of Criminal Procedure
(CrPC). We say so because even according to the State, the
investigation is over and charge sheet is ready to be filed before the
competent court. In such circumstances, the Trial Court should be
allowed to look into the materials which the investigation officer
might have collected forming part of the charge sheet. If any such
discharge application is filed, the Trial Court shall look into the
materials and take a call whether any case for discharge is made out
or not.”
12) In our opinion, the said observations are squarely applicable to
the present case. The arguments advanced on behalf of the Petitioners are the
defences of the Petitioners. We cannot, and ought not, under the jurisdiction
of Section 482 of Criminal Procedure Code, entertain the defences or enter
into that arena. According to us, this is not a case, which calls for exercise of
jurisdiction under section 482 of the Criminal Procedure Code. According to
us, no case for quashing is made out. Perusal of F.I.R. prima facie indicates
that, there is substance in it and it clearly discloses commission of cognizable
offence as alleged. What the Petitioners have raised before us are their
defences, which can only be tested or tried at the trial. The defences raised by
the Petitioners are all required to be raised in evidence at the trial. We have
noted that it is the view of the Hon’ble Supreme Court that, in such
circumstances, the trial Court should be allowed to look into the materials,
which the Investigation Officer might have collected forming part of the
charge sheet.
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13) We have also noted that the Hon’ble Apex Court in the case of
Central Bureau of Investigation V/s. Aryan Singh, reported in (2023) 18 SCC
399 Supreme Court 1987
, has held that, the High Court cannot conduct a
mini trial for appreciation of evidence on record while dealing with an
application under Section 482 of the Code of Criminal Procedure, as if it is a
mini trial and consider the application as if those are against the Judgment
and Orders of the trial Court on conclusion of full fledged trial.
14) We may also make a useful reference to the Judgment of Supreme
Court in the case of
Manik B. V/s. Kadapala Sreyes Reddy & Anr., reported in
(2023) SCC OnLine SC 2540
, wherein the Hon’ble Supreme Court has held
that, the Court would exercise its power to quash a proceeding only if it finds
that taking the case at its face value, no case is made out. The Supreme Court
has observed that, it is not permissible for Court to go into the correctness or
otherwise of the material placed by the prosecution in a chargesheet. The
argument and submissions advanced by the Petitioner across the bar, amount
to entering into the arena of evidence and trial, which in our opinion is not
permitted. We have already noted that, the investigation of the crime is
already completed and chargesheet is ready to be filed.
15) We are of the firm view that at the stage of quashing of the
proceeding while exercising power under Section 482 of Criminal Procedure
Code, the Court is not required to conduct mini trial or test the veracity of the
material collected during the investigation, unless of course there is a strong
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case of malafide or vexatious litigation or the use of the criminal law
machinery for the seeking personal vengeance by filing false cases or initiating
a malicious prosecution. The falsity or the vexatious nature of the case should
be prima facie evident on the face of it and on a bare perusal of the complaint.
16) This Court has in a recent decision, in the case of
Hemendra
Pranjivan Bosmiya vs. The State of Maharashtra and Anr,
in Criminal
Application No.277 of 2023 in Paragraph Nos. 5, 5.1 and 5.2 held that:
"5. In the case of Central Bureau of Investigation vs. Aryan Singh
(AIR 2023 SC 1987), the Apex Court held that, the High Court
cannot conduct a mini trial for appreciation of evidence on record
while dealing with an application under Section 482 of Cr.P.C., as if
it is a mini trial and consider the application as if those are against
the Judgment and Orders of the Trial Court on conclusion of trial.”
5.1) In the case of Manik B Vs. Kadapala Sreyes Reddy, the
Apex Court has held that, the scope of interference while quashing
the proceedings under Section 482 of Cr.P.C. is very limited and the
power would be exercised only if the Court finds that taking the
case at its face value, no case is made out at all. That, it is not
permissible for the Court to go into the correctness or otherwise of
the material placed by the prosecution in the chargesheet.
5.2) In the case of Iqbal @ Bala and Ors. vs. State of U.P.
and Ors., (2023 SCC Online SC 949), the Apex Court declined to
interfere in the order of the High Court rejecting the petition filed
for quashing of the FIR, taking note of the fact that, the
investigation had been completed and chargesheet is required to be
filed. The view taken by the Apex Court is that the Trial Court
should be allowed to look into materials which the investigation
officer might have collected forming part of the chargesheet, despite
the observation of the Apex Court that the allegation leveled in the
FIR do not inspire any confidence.
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17) In view of the aforesaid facts and law as laid down by the
Supreme Court, we are of the opinion that, it would only be appropriate to
relegate the Petitioner to avail the remedy of filing a discharge application
before a trial Court after the Police files charge-sheet. We also note that, it is
not the case that, by refusing to entertain a petition under section 482 of the
Code of Criminal Procedure, the Petitioner is left with no remedy. It is a
settled position of law that, the High Court would not entertain a Petition
under Article 226 of the Constitution of India, where Petitioner has an
alternative remedy, which without being unduly onerous provides an equally
efficacious remedy. It is a well settled law and a recognized principle that, a
party should avail for himself such remedies, which are available under the
law, before he resorts to a constitutional remedy. The purpose and object of a
Petition under Section 482 of Criminal Procedure Code is to prevent the abuse
of process of law and to secure the ends of justice. The same does not mean
that, the remedy available or provided under law ought to be brushed aside
and this Court be directly approached under Section 482 of Criminal
Procedure Code.
18) Considering the above dictum of the Hon’ble Supreme Court, at
this stage, when the investigation is over and the charge-sheet is ready to be
filed, we are not inclined to consider the allegations and the counter
allegations of the parties and look into the detailed facts. In our opinion, the
same would amount to conducting a mini trial while exercising jurisdiction of
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quashing under section 482 of the Code of Criminal Procedure, 1973. The
same is not permissible in law. The arguments of the learned Advocate for the
Petitioners if looked into, would amount to examining the defence of the
Petitioners, which cannot and ought not to be done under the jurisdiction of
Section 482 of Code of Criminal Procedure, 1973.
19) In view of the aforesaid facts and circumstances and by observing
that the alternate remedy available to the Petitioner to approach before the
trial Court, both the Petitions are disposed off.
(RANJITSINHA RAJA BHONSALE, J.) ( A.S. GADKARI, J.)
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