Bombay High Court
MOHAMMAD SUFIYANA MOHAMMAD YAKUB AND ORSversusSTATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Disposed Off
- Bench
- ASHWIN D BHOBE
Holding
The FIR does not disclose a criminal offence and is quashed as the matter is a civil dispute.
Summary
The applicants filed a criminal application under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (equivalent to Section 482 CrPC) seeking to quash FIR No. 0042 of 2023, which alleged offences under Sections 420 and 120B IPC arising from a dispute over a sale deed of 43.20 acres of land. The dispute concerned non‑payment of the full sale consideration and was already before a civil court (Special Civil Suit No. 193/2022) where an injunction restraining the applicants’ rights had been granted. The court held that the FIR described a purely civil contractual dispute and did not disclose any fraudulent or dishonest intention required for cheating under Section 420 IPC. Relying on Supreme Court precedents (Vesa Holdings and Hridaya Ranjan Prasad Verma), the court concluded that a breach of contract without initial dishonest intent cannot constitute a criminal offence. Consequently, the FIR was quashed and the criminal proceedings were closed as an abuse of process.
Issues considered
- Whether the FIR alleging offences under Sections 420 and 120B IPC discloses a criminal offence or merely a civil contractual dispute.
- Whether the presence of a pending civil suit and injunction precludes the continuation of criminal proceedings.
- Whether the High Court can exercise its inherent powers under Section 528 of the Bharatiya Nagarik Suraksha Sanhita/Section 482 CrPC to quash the FIR.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 528
- Code of Criminal Procedure, 1973 — s. 482
- Indian Penal Code, 1860 — s. 120B, 420
Subjects
- breach of contract
- cheating
- Section 420 IPC
- Section 482 CrPC
- civil dispute
- abuse of process
- quash FIR
Judgment
Gitalaxmi 28-APL-127-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 127 OF 2024
Mohammad Sufiyana Mohammad Yakub
& Ors. ...Applicants
Versus.
The State of Maharashtra & Anr. ...Respondents
-------
Mr. Chetan S. Damre a/w Mr. Omkar S. Banbe, learned Advocates for
the Applicants.
Ms. Poonam P. Bhosale, learned A.P.P. for the State/Respondent.
Mr. Ashish S. Gabhale i/b Jay & Co., learned Advocate for Respondent
No. 2.
-------
CORAM : ASHWIN D. BHOBE, J.
DATE : 4th MARCH 2026.
P.C. :
1. Heard Mr. Chetan Damre, learned Advocate for the
Applicants, Ms. Poonam Bhosale, learned A.P.P. for the
State/Respondent and Mr. Ashish Gabhale, learned Advocate for
Respondent No. 2.
2. This Criminal Application is filed by the Applicants under
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(Section 482 of the Criminal Procedure Code, 1973), seeking to
quash the First Information Report bearing No. 0042 of 2023 dated
16.02.2023 registered with Malegaon Chavani Police Station,
District-Nashik Gramin, for offences punishable under Sections 420
& 120-B of the Indian Penal Code, 1860 (“impugned FIR”).
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Gitalaxmi 28-APL-127-2024.doc
3. Material facts relevant to the adjudication of this Criminal
Application are that Respondent No. 2 (the original
Complainant/Informant) owns the land bearing Gat No. 173/1/A,
measuring 43.20 acres. The allegations state that on 12.05.2020, a
Sale Deed was executed between Respondent No. 2 and Applicant
Nos. 1 & 5 to 13. The agreed sale consideration of Rs.
2,89,67,000/-, payable for the sale transaction, was not paid by
Applicant Nos. 1 & 5 to 13. Instead of full payment, Applicants Nos.
1 & 5 to 13 transferred Rs. 52,00,000/- to Respondent No. 2’s
account. Respondent No. 2 claims the remaining amount payable
by Applicant Nos. 1 & 5 to 13 for the sale transaction. Applicant
Nos. 2 and 4 are said to be witnesses to the Sale Deed dated
12.05.2020. Applicant No. 3 is said to hold a Power of Attorney.
4. Mr. Chetan Damre, learned Advocate for the Applicants,
submits that the subject matter of the impugned FIR is a civil
dispute. To clarify, he states that Respondent No. 2 has ascribed a
criminal character to the civil dispute. He submits that Respondent
No. 2 is already before the Civil Court through a Special Civil Suit
No. 193/2022, seeking to cancel the Sale Deed dated 12.05.2022.
He submits that the Civil Court has granted an injunction in favour
of Respondent No. 2, thereby restraining the creation of third-party
rights by Applicant Nos. 1 & 5 to 13 through an order dated
13.09.2023 in Special Civil Suit No. 193/2022 by the Civil Judge,
Senior Division at Malegaon, District Nashik. He submits that,
although the Sale Deed dated 12.05.2022 was executed, possession
of the subject property was never handed over to Applicant Nos. 1
& 5 to 13. He submits that the complaint does not reveal any
dishonest intention or any elements of Section 420 or Section 120-
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Gitalaxmi 28-APL-127-2024.doc
B of the IPC.
5. Mr. Ashish Gabhale, learned Advocate for Respondent No. 2,
submits that the Applicants are involved in fabricating documents.
He, however, fairly admits that Respondent No. 2 has filed Special
Civil Suit No. 193/2022 against the Applicants, seeking
cancellation of the Sale Deed, which is the subject of the impugned
FIR, and that the case is pending before the Civil Judge, Senior
Division, at Malegaon, District Nashik. He states that in the said
Civil Suit, Respondent No. 2 is protected by an injunction. He
further states that Respondent No. 2 is in possession of the entire
suit property. He submits that Applicant Nos. 1 & 5 to 13, although
they agreed to purchase the suit property for a total consideration
of Rs. 2,89,67,000/-, paid only Rs. 52,00,000/- to Respondent No.
2 at the time of executing the Sale Deed. He contends that the
grievance of Respondent No. 2 in the impugned FIR is essentially
against Applicant Nos. 1 & 5 to 13 for non-compliance with the
said contractual obligation.
6. Ms Poonam Bhosale, learned A.P.P. for the State/Respondent,
submits that the allegations in the FIR, although they indicate a
contractual dispute, the Investigating Officer thought it fit to
investigate the matter by registering the FIR.
7. Arguments heard, records perused with the assistance of
learned Advocates of the parties.
8. The subject matter of the Impugned FIR involves a
contractual dispute. Apparently, Respondent No. 2 and the
Applicant Nos. 1 & 5 to 13 are in conflict over the non-payment of
Page 3 of 6
Gitalaxmi 28-APL-127-2024.doc
the remaining consideration under the sale Deed dated
12.05.2022. Such a dispute can hardly constitute a criminal
offence.
9. In the case of Vesa Holdings Private Limited and Another v/s.
The State of Kerala and Others. 1, the Hon’ble Supreme Court in
Paragraph Nos. 12 and 13 has observed as under :-
“12. From the decision cited by the appellant, the settled
proposition of law is that every breach of contract would not
give rise to an offence of cheating and only in those cases
breach of contract would amount to cheating where there was
any deception played at the very inception. If the intention to
cheat has developed later on, the same cannot amount to
cheating. In other words for the purpose of constituting an
offence of cheating, the complainant is required to show that
the accused had fraudulent or dishonest intention at the time
of making promise or representation. Even in a case where
allegations are made in regard to failure on the part of the
accused to keep his promise, in the absence of a culpable
intention at the time of making initial promise being absent,
no offence under Section 420 of the Penal Code, 1860 can be
said to have been made out.
13. It is true that a given set of facts may make out a civil
wrong as also a criminal offence and only because a civil
remedy may be available to the complainant that itself cannot
be a ground to quash a criminal proceeding. The real test is
whether the allegations in the complaint disclose the criminal
offence of cheating or not. In the present case there is nothing
to show that at the very inception there was any intention on
behalf of the accused persons to cheat which is a condition
precedent for an offence under Section 420 IPC. In our view
the complaint does not disclose any criminal offence at all.
The criminal proceedings should not be encouraged when it is
found to be mala fide or otherwise an abuse of the process of
the court. The superior courts while exercising this power
should also strive to serve the ends of justice. In our opinion,
in view of these facts allowing the police investigation to
1 (2015) 8 SCC 293
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Gitalaxmi 28-APL-127-2024.doc
continue would amount to an abuse of the process of the
court and the High Court committed an error in refusing to
exercise the power under Section 482 of the Criminal
Procedure Code to quash the proceedings.”
10. In the case of Hridaya Ranjan Prasad Verma and Others v/s.
The State of Bihar and Another 2, the Hon’ble Supreme Court in
Paragraph No. 15 has observed as under :-
“15. In determining the question it has to be kept in mind
that the distinction between mere breach of contract and the
offence of cheating is a fine one. It depends upon the
intention of the accused at the time of inducement which may
be judged by his subsequent conduct but for this subsequent
conduct is not the sole test. Mere breach of contract cannot
give rise to criminal prosecution for cheating unless
fraudulent or dishonest intention is shown right at the
beginning of the transaction, that is the time when the offence
is said to have been committed. Therefore it is the intention
which is the gist of the offence. To hold a person guilty of
cheating it is necessary to show that he had fraudulent or
dishonest intention at the time of making the promise. From
his mere failure to keep up promise subsequently such a
culpable intention right at the beginning, that is, when he
made the promise cannot be presumed.”
11. In the present case, neither the complaint nor the impugned
FIR shows that, from the beginning, Applicant Nos. 1 & 5 to 13
intended to cheat, which is a required element for an offence under
Section 420 of the IPC. The allegations in the complaint and the
impugned FIR, taken at face value, do not reveal the essential
elements of cheating. As submitted by Mr. Ashish Gabhale, learned
Advocate for Respondent No. 2, possession of the suit property was
not transferred to Applicant Nos. 1 & 5 to 13, and it remained with
Respondent No. 2. Admittedly, Respondent No. 2 is before the Civil
2 (2000) 4 SCC 168
Page 5 of 6
Gitalaxmi 28-APL-127-2024.doc
Court seeking cancellation of the Sale Deed, in which the
Applicants are protected by an interim order. The rights arising
from the Sale Deed will be determined in the said Civil Suit.
12. Applicant Nos. 2 and 4 are said to be witnesses to the Sale
Deed dated 12.05.2020. Applicant No. 3 is claimed to hold a
constituted Power of Attorney. There is no material on record to
demonstrate any ingredients of the offence against Applicants Nos.
2 to 4.
13. Respondent No. 2 has used criminal law to settle personal
scores related to a primarily civil dispute. Respondent No. 2 has
pursued civil remedies to enforce contractual rights. Allowing
criminal proceedings to continue against the Applicants would
amount to an abuse of process and result in a miscarriage of
justice.
14. This Criminal Application is therefore allowed in terms of
prayer clause (a). Consequently, the impugned FIR bearing No.
0042 of 2023, dated 16.02.2023, registered with the Malegaon
Chavani Police Station, District-Nashik Gramin, against the
Applicants is quashed. Criminal proceedings arising out of the
impugned FIR against the Applicants are closed.
15. Criminal Application No. 127 of 2024 is disposed of. No
order as to costs.
[ASHWIN D. BHOBE, J.]
Digitally signed
by GITALAXMI
GITALAXMI KRISHNA
KRISHNA KOTAWADEKAR
KOTAWADEKAR Date:
2026.03.16
21:03:23 +0530 Page 6 of 6
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