Bombay High Court

JAYESH SHAHversusMILAN A. KUSUMGAR AND ORS.

Decided: 17 January 2026
Disposal: Dismissed
Bench: R N LADDHA

Holding

The issuance of process was improper as the complaint lacked the essential elements of cheating and the matter was civil in nature, warranting dismissal of the revision.

Summary

The revision challenged the order of the Additional Sessions Judge that had set aside a process issued by the Additional Metropolitan Magistrate in a complaint alleging non‑payment of commission. The complainant alleged that the accused had made false representations regarding payment, but the complaint did not specify a contractual sum or fraudulent inducement. The magistrate, after invoking Section 202 of the CrPC, directed a police inquiry which reported that no prima facie case existed and the dispute was civil in nature. Despite this, the magistrate issued process without providing reasons for departing from the police report. The High Court held that the complaint did not disclose the essential elements of cheating under Section 420 IPC and that invoking criminal law in a civil dispute amounted to abuse of process. Consequently, the revision application was dismissed.

Issues considered

Whether the complaint discloses sufficient facts to constitute an offence under Section 420 read with Section 34 of the IPC.
Whether the Additional Metropolitan Magistrate was justified in issuing process despite the police report finding no prima facie case.
Whether the invocation of criminal proceedings in a civil dispute amounts to an abuse of process.

Legislation cited

Code of Criminal Procedure, 1973 — s. 202
Indian Penal Code, 1860 — s. 34, 420

Subjects

cheating
Section 420 IPC
Section 202 CrPC
civil dispute
criminal revision
abuse of process
breach of contract

Judgment

Mamta Kale 43-revn-4-2008.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

Criminal Revision Application No. 4 of 2008
Jayesh Shah
doing business in the name and
style of J. Manubhai & Co. and
J. M. International, having his
office at 104, Prashant Chambers,
74/78, Bhandari Street,
Mumbai – 400 003. … Applicant
Versus
1. Milan A Kusumgar – Partner
M/s Generation Next,
307, Pragati Industrial Estate,
316, N M Joshi Marg,
Mumbai – 400 013.

2. Ms Meghna M Kusumgar – Partner
M/s Generation Next,
307, Pragati Industrial Estate,
316, N M Joshi Marg,
Mumbai – 400 013.

3. M/s Generation Next – Partnership
Company
Digitally
signed by
MAMTA
MAMTA AMAR
307, Pragati Industrial Estate,
AMAR KALE
KALE Date:
2026.01.17
20:38:54
+0530
316, N M Joshi Marg,
Mumbai – 400 013.

4. State of Maharashtra …Respondents
----

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17 January 2026
Mamta Kale 43-revn-4-2008.docx

None present for the applicant and respondents No.1 to 3.
Ms Anagha A Deshmukh, APP, for the Respondent / State.
----
Coram: R.N. Laddha, J.
Date: 17 January 2026.
P.C.:
. The present revision application assails the order dated 3
August 2007 passed by the Additional Sessions Judge, Sewree,
Mumbai, whereby the order dated 26 March 2004 passed by
the learned Additional Metropolitan Magistrate, 2 nd Court,
Mazgaon, Mumbai, in CC No.2/I&R/2004(71/M/2000),
issuing process for the offence punishable under Sections 420
read with 34 of the Indian Penal Code, came to be quashed and
set aside.

2. Today, when the matter is called out, none present for the
applicant and respondents No.1 to 3. With the able assistance
of the learned APP, I have meticulously perused the record and
proceedings.

3. From the material on record, it emerges that the gravamen
of the complainant’s allegation is that he has not been paid
commission allegedly due to him in respect of certain
commercial transactions. The complainant appears to assert
that he rendered certain services to the accused persons’
company and, having not been adequately compensated for the
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Mamta Kale 43-revn-4-2008.docx

same, now claims to be aggrieved.

4. Although the complaint contains references to alleged
false representations made by the accused, it is pertinent to
note that there is no specific allegation that such
misrepresentations pertained to the fundamental nature of the
accused company’s business or to any fraudulent inducement
regarding the existence of export orders. The purported
misrepresentations, if any, appear to relate solely to the aspect
of payment or non-payment of commission. Crucially, the
complaint lacks any categorical or unambiguous averment that
a specific sum was agreed upon as payable to the complainant.
In the absence of a clearly pleaded contractual obligation or a
defined quantum of consideration, the dispute, at its core,
appears to be of a civil nature, arising out of an alleged breach
of a commercial understanding, if any. It is further seen that the
learned Magistrate, upon initial examination of the complaint,
did not deem it appropriate to issue process forthwith. Instead,
he invoked the provisions of Section 202 of the Code of
Criminal Procedure, 1973, and directed an enquiry to be
conducted by the police. It is well settled that such a course is
adopted by the Magistrate when he entertains doubt as to the
sufficiency of grounds for proceedings against the accused and
seeks further material to arrive at a judicious decision.

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Mamta Kale 43-revn-4-2008.docx

5. In the present case, the police, upon conducting the
inquiry as directed, submitted a report opining that no prima
facie case warranting issuance of process was made out and that
the dispute appeared to be of a civil nature. The said report did
not furnish any additional material or evidence which could
have dispelled the Magistrate’s initial reservations or fortified
the complainant’s allegations to the extent of justifying criminal
prosecution. Despite the absence of any fresh incriminating
material in the police report, the learned Magistrate proceeded
to issue process against the accused. The order issuing process
against the accused is bereft of any cogent reasoning or
discussion as to how the Magistrate arrived at a conclusion
contrary to the police report. In the event that the Magistrate
intended to disagree with the findings of the police, it was
incumbent upon him to record specific reasons delineating the
basis of such disagreement, in consonance with the settled
principle of law.

6. The invocation of a criminal law in a matter essentially
civil in nature amounts to an abuse of the process of the law
and is liable to be interdicted at the threshold. The complaint
does not disclose any intention to deceive or fraudulent
inducement at the inception of the transaction, which is a sine-
qua-non for the offence of cheating under Section 420 of the

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Mamta Kale 43-revn-4-2008.docx

IPC. The complaint appears to be vague and bereft of specific
particulars regarding the alleged misrepresentation and the
precise terms of the alleged agreement. It is trite law that mere
breach of contract, without more, does not constitute a
criminal offence.

7. In view of the foregoing, the present revision application
stands dismissed.

(R.N. Laddha, J.)

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17 January 2026

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