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Bombay High Court

ROHIT SHIVAJI JADHAV AND ANRversusTHE STATE OF MAHARASHTRA AND ORS

Decided
Disposal
Allowed

Holding

The FIR is defective and does not disclose a cognizable offence; therefore the petition to set aside the investigation is allowed and the request to transfer the investigation is dismissed.

Summary

The petitioners challenged the FIR (CR No. 88 of 2011) filed by Rohit Jadhav and the Indapur Winery Society alleging cheating and criminal breach of trust over a wine supply agreement with Champagne Indage Ltd. The petitioners argued that the FIR lacked specific particulars, did not disclose any dishonest intent, and named persons who had resigned or were deceased. The Court examined the FIR and found it vague, noted suppression of material communications that showed the winery’s consent to the transaction, and held that the allegations did not prima facie constitute a cognizable offence under Sections 407, 420 and 34 IPC. Consequently, the Court allowed the writ petition seeking to set aside the investigation and dismissed the separate petition seeking transfer of the investigation to the CID. The decision rests on the principle that an FIR must disclose a cognizable offence and cannot be used as a tool of pressure in a civil‑contractual dispute.

Issues considered

  • Whether the FIR under Sections 407, 420 read with Section 34 IPC discloses sufficient particulars to constitute a cognizable offence.
  • Whether the investigation can be transferred to the CID or any other agency.
  • Whether suppression of material facts bars the continuation of the criminal complaint.
  • Whether persons who have resigned or are deceased can be held liable under the FIR.

Legislation cited

Subjects

  • FIR
  • cheating
  • Indian Penal Code
  • cognizable offence
  • investigation transfer
  • suppression of evidence
  • Section 420
  • Section 407
  • Section 34
  • Article 226
  • High Court
  • criminal procedure

Judgment

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                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                             WRIT PETITION NO.1284 OF 2013


                      1.    Mr. Sham Ganpat Chougule            ]
                      Age 79 years, Occ : Business,             ]
                      R/at. 69, Champagne House,                ]
                      Worli Sea Face, Worli,                    ]
                      Mumbai – 400 030.
                      2.    Mr. Ranjit Sham Chougule            ]
                      Age 39 years, Occu: Business,             ]
                      R/at. 69, Champagne House,                ]
                      Worli Sea Face, Worli,                    ]
                      Mumbai – 400 030.                         ]
                      3.     Mr. Sohrab Rustom Framjee          ]
                      Occu: Retired,                            ]
                      Mount Pleasant Road, Malabar              ]
                      Hill, Mumbai – 400 006.                   ]
                      4.    Mr. Girish Vijayanand Kirkinde      ]
                      Age 49 years, Occu: Service,              ]
                      Santosh Mata Mandir,                      ]
                      Kalyan – 421 301.                         ]
                      5.     Mr. Dilip Sadashiv Pradhan         ]
                      Age 63 years, Occu: Service,              ]
                      R/at. Indage House, 82,                   ]
                      Annie Besant Road, Worli,                 ]
                      Mumbai – 400 018.                         ]    … Petitioners.

                                      V/s.

                      1.    State of Maharashtra                ]
                      (Valchand-Nagar, Police Station).         ]

                      2.     Mr. Rohit Shivaji Jadhav           ]
                      Age 30 years, Occu: Service,              ]
                      R/at. Gholapwadi, Tal. Indapur,           ]
                      Dist. Pune.                               ]    … Respondents.



         Digitally
         signed by
         SUMEDH
                                                                                               1/11
SUMEDH   NAMDEO
NAMDEO   SONAWANE
SONAWANE Date:
         2026.05.08
         18:49:17
         +0530
     sns                                            27-wp-1284-2013-J.doc



                                WITH
                    WRIT PETITION NO.2415 OF 2017

1.    Rohit Shivaji Jadhav                      ]
      Age : 34 years, Occu: Service             ]
      R/at. Gholapwadi, Tal. Indapur,           ]
      District : Pune                           ]

2.    Indapur Taluka Grape Processing and       ]
      Winery Co-op. Society Ltd                 ]
      having office at Birangudwadi,            ]
      Tal. Indapur, Dist. Pune                  ]           … Petitioners.

      V/s.
1.    State of Maharashtra                      ]
      (at the instance of Valchand Nagar)       ]
      Police Station, Pune in C.R. No.88/2011   ]

2.    Sham Ganpat Chougule                      ]
      Age : 83 years, Occu: Business            ]
      R/at.69, Champagne House,                 ]
      Worli Sea Face, Worli, Mumbai – 400 030   ]

3.    Ranjit Sham Chougule                      ]
      Age : 43 years, Occu: Business            ]
      R/at. 69, Champagne House,                ]
      Worli Sea Face, Worli, Mumbai – 400 030   ]

4.    Sohrab Rustom Framjee                     ]
      Occu : Retired                            ]
      R/at. 69, Anita Building,                 ]
      Mount Pleasant Road, Malabar Hill         ]
      Mumbai – 400 006                          ]

5.    Girish Vijayanand Kirkinde                ]
      Age : 54 years, Occu: Service             ]
      R/at. Heramb Society, Near Santosh        ]
      Mata Mandir, Kalyan – 421 301             ]

6.    Dilip Sadashiv Pradhan                    ]
      Age : 67 years, Occu: Service             ]


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        R/at. Indage House, 82, Annie          ]
        Besant Road, Worli, Mumbai – 400 018   ]     … Respondents.
                  ______________________________________

Mr. Anurag R. Mishra a/w. Adv. Ankit Trivedi, Adv. Arnab Roy i/by Adv.
Rohan V. Nahar for the Petitioners in WP/2415/2017 and for Respondent
No.2 in WP/1284/2013.
Mr. Ajit Kenjale a/w. Adv. Sohil Gulabani, Adv. Sai Rajendra Kadam, Adv.
Azaruddin A. Khan for the Petitioner in WP/1284/2013 and for Respondent
No.2 in WP/2415/2017.
Smt. M. H. Mhatre, APP for the Respondent No.1-State in both Petitions.
Mr. A.S. Kaloskar, Police Constable, Walchandnagar Police Station, present.
             _____________________________________________

                              CORAM : A. S. GADKARI AND
                                      KAMAL KHATA, JJ.
                        RESERVED ON : 16th April, 2026.
                      PRONOUNCED ON : 30th April, 2026.

Judgment (Per : Kamal Khata, J) :-

1)           By the Writ Petition No.1248 of 2013 filed under Article 226 of

the Constitution of India, the Petitioners seek to set aside the investigation

initiated against the Petitioner in Crime Register No. 88 of 2011 registered

at Valchand-Nagar Police Station, Baramati Pune.

1.1)         On the other hand, by Writ Petition No.2415 of 2017, the

Petitioners seek transfer of the investigation of CR number 88 of 2011 to

CID Pune or any other investigation agency.

2)           For ease of reference, the Petitioners in Writ Petition No. 1284

of 2013 are referred to as the “Chougule and ors” and the Petitioner No.1 –

Rohit Shivaji Jadhav in Writ Petition No.2415 of 2017 is referred to as

“Jadhav” and Petitioner No. 2 - Indapur Taluka Grape Processing and

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Winery Co-op. Society Ltd. or Indapur Taluka Draksha Prakriya and Winery

Sahakari Sanstha Maryadit as described in the Agreement, is referred to as

“Indapur Winery Society” in the foregoing paragraphs.

3)           Jadhav on behalf of Indapur Winery Society lodged an FIR with

Indapur Police Station for offences punishable under Sections 407, 320 read

with Section 34 of the Indian Penal Code, 1860 (‘IPC’) against Chougule

and ors. on 25th May 2011 and upon being registered was referred to as CR

No.88 of 2011. The relevant contentions recorded in the FIR is as follows:

3.1)         The Indapur Winery Society consists of farmers from Indapur

Taluka to produce grapes, fruit and vegetables in the said area. They

formed a Society and started grape processing and winery unit. In 2008,

Chougule and ors. approached them and requested to provide them of the

wine and agreed to offer them a good rate. Since the Indapur Winery

Society had taken several loans, they agreed to supply of wine to

Champagne Indage Limited of which Chougule and ors were directors. They

entered into an Agreement dated 19th March, 2008.

3.2)         As per the Agreement dated 19th March 2008, all the wine

produced by the Indapur Winery Society would be lifted by the Company

Champagne Indage Limited. (CIL) on or before 30 th November every year

and latest by 31st December. Under the Agreement, CIL would pay 50% of

the amount in advance and the balance within 45 days from the date of

lifting the wine. Having lifted the entire stock of wine namely 32,000 liters

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for Rs.42,81,567/- from the Indapur Winery Society, CIL did not pay a

single penny either as advance or even thereafter. According to the Jadhav,

Chougule and ors. had entered into such an Agreement with an ulterior

motive and malafide intention to cheat the Indapur Winery Society. Jadhav

alleged that, with an intention to cheat, the Indapur Winery Society,

Chougule and ors. changed the name of CIL and also disposed of all entire

stock lifted from the Indapur Winery Society.

4)           Mr. Mishra, learned Advocate for Chougule and ors., submitted

that the FIR, as it stands, fails to disclose the specific role attributable to

each of the accused in commission of the alleged offence. According to him,

the allegations are vague and devoid of particulars.

4.1)         He submitted that, a mere breach of the terms of the

Agreement, without anything more, cannot give rise to criminal liability in

the absence of material indicating dishonest or fraudulent intent from

inception. In the absence of such material, the offence of cheating under

Section 420 of the Indian Penal Code, 1860 (‘IPC’) is rendered nugatory.

4.2)         In support of his submission, reliance was placed upon the

judgment of Hon’ble Supreme Court judgment in the case of Vesa Holdings

Private Limited & Anr. vs. State of Kerala & Ors. reported in (2015) 8 SCC

293 to contend that the allegations in the complaint must clearly disclose

the ingredients of the offence of cheating to sustain an FIR.

4.3)         Placing further reliance on the decision in State of Haryana vs.

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Bhajan Lal reported in AIR 1992 SC 604, he submitted that the offences of

criminal breach of trust and cheating, arising out of the same transaction,

are distinct and cannot be invoked mechanically together. He submitted

that cheating requires dishonest inducement at the inception, whereas

criminal breach of trust requires entrustment followed by misappropriation.

4.4)         He submitted that, neither does Jadhav specifically allege, nor

does the FIR disclose, that the wine was entrusted to Chougule and ors.

who thereafter misappropriated it. Although it is Jadhav’s case that

Chougule and ors. had an intention to cheat Indapur Winery Society from

the very beginning the Agreement with CIL proves that the allegations are

ex- facie contradictory. Consequently, no offence punishable under Section

407 of the IPC is made out.

4.5)         He further submitted that, the FIR also fails to disclose any

material to attract Section 34 of the IPC, as there are no allegations

indicating that the accused acted with a common intention.

4.6)         He submitted that, the Agreement dated 19th March, 2008 was

executed between Champagne Indage Ltd. (‘CIL’) and Indapur Winery

Society. Therefore, the FIR ought to have clearly specified the role of each

director or office bearer. It must also necessarily disclose as to how each of

them was responsible for the day-to-day affairs of CIL to fasten the liability

upon them. He submitted that, the entire complaint was imaginary.

4.7)         In this context, he relied upon the Hon’ble Supreme Court

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decision in the case of Maksud Saiyed vs. State of Gujarat & Ors. r eported

in (2008) 5 SCC 668 to submit that vicarious liability cannot be presumed

in the absence of specific allegations.

4.8)         He further pointed out that, the FIR named one Mr. Joseph

Bain D’souza as one of the accused who alongwith others took delivery of

32,000 litres of wine from Indapur Winery Society. However, Joseph

D’souza had expired on 2 nd September, 2007 which is prior to the date of

the Agreement between CIL and Indapur Winery Society itself. This,

according to him, clearly demonstrates the mechanical and unreliable

nature of the allegations.

4.9)         He further submitted that, although the FIR was registered on

25th May, 2011 no charge-sheet is filed till date. Consequently, no prima

facie case is made out and therefore, the Petition be allowed.

5)           Per contra Mr. Kenjale, learned Advocate (for Petitioner in Writ

Petition No.2415 of 2017 and for Jadhav in Writ Petition No.1284 of 2013)

submitted that, the Indapur Winery Society had entrusted the property

valued at Rs.43 lakhs to the accused, who, by their acts, cheated them and

consequently caused serious financial distress to Indapur Winery Society

and its members.

5.1)         He further submitted that, despite registering an FIR with the

Indapur Police Station as early as on 25 th May, 2011 (bearing C.R. No.88 of

2011) for offences punishable under Sections 407, 420 read with Section

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34 of the Indian Penal Code, and despite a further representation made by

Jadhav on 6th April, 2017, the Respondents failed to take any action.

6)           We have heard both the Advocates and have perused the entire

record carefully.

6.1)         We find merit in the submissions of the Petitioners-Chougule

and ors.. A plain reading of the FIR reveals that it lacks the particulars that

are required to sustain the same. We find that it does not specify the role of

each of the accused and nor does it disclose any criminal intent to cheat

Indapur Winery Society. That the goods and the wine were delivered to the

company-CIL as per the Agreement executed between them. There was no

material to show misrepresentation at the inception or entrustment of the

said goods which were misappropriated.

7)           It is further pertinent to note that, Jadhav has suppressed

several material facts and documents. An important communication dated

12th June, 2010 that was suppressed clearly indicates that Indapur Winery

Society had agreed to support the scheme floated to help the company

revive from the financial crises. Moreover, Indapur Winery Society’s

Advocate had in his Demand notice dated 11 th April 2011 deliberately made

false statement that they were not aware in the change of name of CIL and

that the earlier demand notice dated 3 rd December 2010 was therefore

issued in its earlier name, namely CIL. The said statement is entirely false to

the knowledge of Jadhav in as much as the letter dated 12 th June, 2010

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addressed by Indapur Winery Society was addressed to Indage Vintners

Limited (IVL) the new name of CIL.

8)           Subsequent correspondence by IVL dated 24 th May 2011

addressed to the Advocate for Indapur Winery Society, which is also

suppressed, further indicated that the company had offered to return of the

goods to Indapur Winery Society, to which there was no response.

9)           In our view, the suppression of this material facts, would ex

facie, disentitle Jadhav or Indapur Winery Society to maintain a criminal

complaint against Chougule and ors. (K.D. Sharma vs.Steel Authority of

India reported in (2008) 12 SCC 481.)

10)          In this backdrop it would be profitable to follow the judgement

of the Hon’ble Supreme Court in the case of State of Haryana & Ors. vs.

Bhajanlal & Ors reported in 1992 Supp (1) Supreme Court Cases 335. In

paragraph No.102 it held 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 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


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 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.
 (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 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.
 (7)   Where a criminal proceeding is manifestly attended with
 mala fide and/or where the proceeding is maliciously instituted with


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       an ulterior motive for wreaking vengeance on the accused and with
       a view to spite him due to private and personal grudge.”


11)            In the present case, a closer examination of the FIR also reveals

that one of the directors namely, Mr. Girish Kirkinde had already resigned

from the company way back on 2nd September 2009 and therefore could not

have been a party to the crime accused in the FIR.

12)            The fact that the FIR was registered against persons who had

long expired or resigned itself demonstrates lack of material and due

application of mind. It also suggests that the criminal process is invoked

with a clear intent to pressurize the directors, for recovery of dues arising

out of a contractual transaction. This clearly demonstrates that the FIR is

wholly unfounded and devoid of merit.

13)            According to us, sub para (1) & (7) of paragraph No.102 of

Bhajanlal’s case (supra) are squarely applicable to the case in hand. In that

view of the matter, the Petition deserves to be allowed.

14)            In view of Writ Petition No.1284 of 2013 being allowed, the

Writ Petition No. 2415 of 2017 which seeks a direction to transfer the

investigation of C.R. No.88 of 2011 to CID, Pune or any other Investigating

Agency must necessarily fail and is hereby dismissed.



            (KAMAL KHATA, J.)                 (A.S. GADKARI, J.)



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