RUSHALI JEEVAN BARDIYA AND ANOTHERversusTHE STATE OF MAHARASHTRA AND ANOTHER

2026:BHC-AUG:38695-DB
                                                                            938-APPLN-4219-24.odt




                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                           CRIMINAL APPLICATION NO. 4219 OF 2024

          1. Rushali Jeevan Bardiya
          2. Amit Padamkumar Jain                                  ..APPLICANTS
                VERSUS
          1. State of Maharashtra
          2. Akshay Bhausaheb Pawar                                ..RESPONDENTS

                                                 ....
          Mr. M.K. Bhosale, Advocate for applicants
          Mr. S.P. Joshi, A.P.P. for respondent no.1 – State
          Mr. S.S. Patunkar, Advocate i/b J.P. Legal Associates for respondent no.2
                                                 ....

                                                       CORAM : R.M. JOSHI, J.
                                                       DATE : 27th AUGUST, 2026

          PER COURT :

          1.         This application is filed under Section 482 of Code of Criminal

          Procedure seeking quashment of F.I.R. bearing Crime No. 422 of 2024

          registered with Cantonment Police Station, Aurangabad for the offence

          punishable under Section 406 read with Section 34 of the Indian Penal Code.


          2.         The F.I.R. indicates that it is the case of informant that he has

          acquaintance with the present applicants and at their instance some money

          was invested with the co-accused i.e. Accused No.1.


          3.         Learned counsel for the Applicants submits that the allegations in

          the F.I.R. do not attract offence of criminal breach of trust against the present

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applicants. It is his submission that in order to apply said offence, there has

to be entrustment of any property which is absent in the present crime. He

relied upon the judgment of the Hon’ble Supreme Court in case of Ankur

Gupta Vs. State of U.P., 2019(3) Crimes 81(SC). He, therefore, contends that

in absence of any evidence in order to attract the provisions of Section 406 of

the I.P.C., the Applicants cannot be compelled to undergo rigors of criminal

trial.


4.         Learned A.P.P. and learned counsel for Respondent No.2 –

Informant opposed the application. According to them, the statement in the

F.I.R. indicates that it was the present Applicants, who instigated the

informant to invest money with the co-accused. This according to him is

sufficient for the Applicants to undergo rigors of criminal trial.


5.         In order to attract the offence punishable under Section 406 of the

I.P.C., the act of Applicants prima facie must prove criminal breach of trust. It

would be relevant to take note of Section 405 of the I.P.C., which defines

criminal breach of trust, which reads thus :-

           “Whoever, being in any manner entrusted with property, or with
           any dominion over property, dishonestly misappropriates or
           converts to his own use that property, or dishonestly uses or
           disposes of that property in violation of any direction of law
           prescribing the mode in which such trust is to be discharged, or of
           any legal contract, express or implied, which he has made
           touching the discharge of such trust, or wilfully suffers any other
           person so to do, commits “criminal breach of trust”.


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6.         Perusal of the above definition indicates that entrustment of the

property is a pre-condition in order to apply the said provision. In this

backdrop, case of the informant does not indicate any entrustment with the

Applicants. As such, no offence under Section 406 of the I.P.C. is prima facie

made out against the Applicants.


7.         At this stage, it would be useful to refer to judgment of Hon’ble

Supreme Court in case of State of Haryana and Ors. Vs. Bhajan Lal and Ors.,

1992 SCC (SUPP) 1 335, which gives guidelines for the decision of quashment

of criminal proceedings. Relevant observations made therein read thus :

         “ 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 channelised and
         inflexible guidelines or rigid formulae and to give an exhaustive list
         of myriad kinds of cases wherein such power 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 entirety 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 except under an order of a Magistrate within the
         purview of Section 155(2) of the Code.


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         (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 the accused.
         (6) Where there is an express legal bar engrafted in any of the
         provisions of the Code of 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.”


8.         The guidelines laid down in the above judgment squarely apply to

the present case. Even if the case of prosecution is accepted to be true, offence

punishable under Section 406 of the Indian Penal Code does not get attracted.

The applicant therefore cannot be forced to undergo rigors of trial.


9.         As such, the Criminal Application deserves to be allowed and

accordingly allowed in terms of prayer clause [B].




                                                     ( R.M. JOSHI, J. )
SSD


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