VYANKTESH SHANTILAL PANDYAversusSTATE OF GUJARAT

     R/CR.MA/9644/2017                             JUDGMENT DATED: 12/08/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 9644 of 2017

                                   With
                R/CRIMINAL MISC.APPLICATION NO. 9645 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR.JUSTICE P. M. RAVAL
==========================================================

             Approved for Reporting               Yes         No
                                                              ✔
==========================================================
                     VYANKTESH SHANTILAL PANDYA & ANR.
                                   Versus
                          STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR YATIN SONI(868) for the Applicant(s) No. 1,2
MR HARDIK H DAVE(6295) for the Respondent(s) No. 2
MR. ROHAN SHAH, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR.JUSTICE P. M. RAVAL

                              Date : 12/08/2026

                              ORAL JUDGMENT


1.        Learned advocate Mr. Yatin Soni for the petitioners submits a
photocopy of the death certificate of original accused No.2 –
petitioner No.1 herein in Criminal Misc. Application No.9644 of
2017, namely Vyankatesh Shantilal Pandya having expired on
16.10.2025, which is taken on record.


2.       The petition being Criminal Misc. Application No.9644 of
2017, qua the petitioner No.1 stands abated.



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3.       The petitioners before this Court invoking Section 482 of the
Criminal Procedure Code, 1973, interalia praying to quash and set
aside the FIR being C.R.No.I-86 of 2017, lodged before the Anand
Town Police Station, District: Anand, dated 05.04.2017, for the
offences punishable under Sections 406, 420, 34, 120-B read with
Section 114 of the Indian Penal Code, 1860, and consequential
proceedings arising therefrom.


4.       The sum and substance of the allegations made in the FIR is to
the effect that the son of the petitioner Nos.1 and 2 namely Jaimin
Pandya fraudulently married with Kruti – niece of the complainant
on 05.03.2013 as Kruiti was Canadian citizen. As the accused No.1
– Jaimin wanted to go abroad, he married with niece of complainant
and thereafter, has taken divorce on 21.12.2016, and that the
petitioners have aided the accused No.1 by conspiring and abating
the offence. On the basis of this allegations, the FIR has been
lodged. Hence the present petitions.


5.       Learned advocate Mr. Yatin Soni for the petitioners would
submit that petitioner No.1, who has now expired was a retired
person, whereas petitioner No.2 of Criminal Misc. Application
No.9644 of 2017 was serving as a teacher and has retired on
30.04.2017. Whereas petitioner in Criminal Misc. Application
No.9645 is serving at a private institute at Mehsana.




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5.1. Learned advocate for the petitioners would further submit that
looking to the facts as narrated in the FIR, no specific allegations are
levelled against the petitioners. No role is attributed against any of
the petitioners. In fact, the petitioners have not played any role in the
commission of the alleged offence and have been implicated and
arraigned as accused merely because they are the parents and brother
of original accused No.1 who is husband of niece of complainant
namely Kruti.


5.2. Learned advocate would further submit that even as per the
averments in the FIR which has been lodged on 05.04.2017 for the
offence alleged to have taken place on 05.03.2013, that is almost
after a delay of four years without there any being cogent
explanation. That, the allegations made in the FIR are vague, general
in nature and without attributing any specific role or commission of
the alleged offence having been committed at a particular time and
place, under such circumstances, the lodging of the FIR against the
present petitioners is abuse of process of law.


5.3. Learned advocate for the petitioners would also submit that the
niece of the complainant has already obtained divorce against her
husband - original accused No.1. That, the marriage of original
accused No.1 and the niece of the complainant had taken place after
due consent of parents of both the sides as well as the original
accused No.1 and Kruti, and marriage was performed as per the
Hindu rites and rituals in presence of the family members of both the

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sides as well as community members. That, the niece of the
complainant had stayed only for 30 days with the family in the year
2013. Thereafter, the niece of the complainant had never met the
petitioners.


5.4. Learned advocate would also submit that the present
petitioners have not conspired with accused No.1 nor have abated
the offence, and the petitioners have been falsely roped into the
offence merely because divorce took place between the accused
No.1 and the niece of the complainant. Thus, it is argued to allow the
present petitions


6.       Per contra, learned advocate Shradhdha C. Pipaliya for learned
advocate Mr. Hardik S. Dave for the complainant and learned
Additional Public Prosecutor Mr. Rohan Shah for the State, would
submit that reading from the FIR itself, a strong prima facie case of
cheating is made out as the marriage was contracted only with a
purpose to see that original accused No.1 may reach Canada on the
strength of the marriage with Kruti, and after reaching there, his next
destination was to reach America which he has achieved, however,
accused No.1 has not taken care of his wife Kruti, and that, a
detailed FIR alleging the manner in which the cheating has been
perpetrated is stated in the FIR. Under such circumstances, the Court
should not exercise its discretionary power in favour of the
petitioners.



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6.1. It would further submit that even while granting divorce on
21.12.2016, the Superior Court of Justice at Ontario (Canada) has
observed that “evidence presented to the Court leaves no doubt that
the respondent utilized his marriage to the applicant solely to gain
entry into Canada from where he has apparently been able to secure
a Visa into United States.”


6.2. Thus, it is prima facie established that it is only for the
purpose to ultimately reach USA that the original accused No.1 -
Jaimin Pandya in connivance with the present petitioners had
contracted marriage and that such findings are also forwarded to the
Immigration Department of the United States and the Canadian
Immigration Department, and thus, have argued to reject the present
petitions.


7.       Heard the learned advocates for the respective parties. This
Court has gone through the papers of chargesheet submitted for the
perusal of this Court by learned Additional Public Prosecutor as well
as the averments made in the FIR. The bone of contention of the
complainant is that the original accused No.1 namely Jaimin
Vyankatesh Pandya had married his niece Kruti with a
predetermined conspiracy for cheating and breach of trust in which
the present petitioners had also conspired inhaling common intention
to commit such crime.


8.       In this regards, it would be apt to refer to the judgment in the


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case of Race Club (1940) Ltd. and Others v. State of Uttar Pradesh
and Another, reported in 2024 (10) SCC 690, wherein the Hon’ble
Apex Court has observed in paragraph 24 to 41 as follows:


      “24. This Court in its decision in S.W. Palanitkar & Ors. v.
      State of Bihar & Anr. reported in (2002) 1 SCC 241
      expounded the difference in the ingredients required for
      constituting an of offence of criminal breach of trust (Section
      406 IPC) viz-a-viz the offence of cheating (Section 420). The
      relevant observations read as under: -
      “9. The ingredients in order to constitute a criminal breach of
      trust are: (i) entrusting a person with property or with any
      dominion over property, (ii) that person entrusted (a)
      dishonestly misappropriating or converting that property to
      his own use; or (b) dishonestly using or disposing of that
      property or wilfully suffering any other person so to do in
      violation (i) of any direction of law prescribing the mode in
      which such trust is to be discharged, (ii) of any legal contract
      made, touching the discharge of such trust.
      10. The ingredients of an offence of cheating are: (i) there
      should be fraudulent or dishonest inducement of a person by
      deceiving him, (ii)(a) the person so deceived should be
      induced to deliver any property to any person, or to consent
      that any person shall retain any property; or (b) the person so
      deceived should be intentionally induced to do or omit to do
      anything which he would not do or omit if he were not so
      deceived; and (iii) in cases covered by (ii)(b), the act of
      omission should be one which causes or is likely to cause
      damage or harm to the person induced in body, mind,
      reputation or property.”

      25. What can be discerned from the above is that the offences

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    of criminal breach of trust (Section 406 IPC) and cheating
    (Section 420 IPC) have specific ingredients. In order to
    constitute a criminal breach of trust (Section 406 IPC): -
    1) There must be entrustment with person for property or
    dominion over the property, and
    2) The person entrusted: -
    a) dishonestly misappropriated or converted property to his
    own use, or
    b) dishonestly used or disposed of the property or willfully
    suffers any other person so to do in violation of:
    i. any direction of law prescribing the method in which the
    trust is discharged; or ii. legal contract touching the discharge
    of trust (see: S.W.P. Palanitkar (supra).
    Similarly, in respect of an offence under Section 420 IPC, the
    essential ingredients are: -
    1) deception of any person, either by making a false or
    misleading representation or by other action or by omission;
    2) fraudulently or dishonestly inducing any person to deliver
    any property, or
    3) the consent that any persons shall retain any property and
    finally intentionally inducing that person to do or omit to do
    anything which he would not do or omit (see: Harmanpreet
    Singh Ahluwalia v. State of Punjab, (2009) 7 SCC 712 : (2009)
    Cr.L.J. 3462 (SC))

    26. Further, in both the aforesaid sections, mens rea i.e.
    intention to defraud or the dishonest intention must be present,
    and in the case of cheating it must be there from the very
    beginning or inception.

    27. In our view, the plain reading of the complaint fails to
    spell out any of the aforesaid ingredients noted above. We may
    only say, with a view to clear a serious misconception of law


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    in the mind of the police as well as the courts below, that if it
    is a case of the complainant that offence of criminal breach of
    trust as defined under Section 405 of IPC, punishable under
    Section 406 of IPC, is committed by the accused, then in the
    same breath it cannot be said that the accused has also
    committed the offence of cheating as defined and explained in
    Section 415 of the IPC, punishable under Section 420 of the
    IPC.

    28. Every act of breach of trust may not result in a penal
    offence of criminal breach of trust unless there is evidence of
    manipulating act of fraudulent misappropriation. An act of
    breach of trust involves a civil wrong in respect of which the
    person may seek his remedy for damages in civil courts but,
    any breach of trust with a mens rea, gives rise to a criminal
    prosecution as well. It has been held in Hari Prasad Chamaria
    v. Bishun Kumar Surekha & Ors., reported in (1973) 2 SCC
    823 as under:
    “4. We have heard Mr. Maheshwari on behalf of the appellant
    and are of the opinion that no case has been made out against
    the respondents under Section 420 Penal Code, 1860. For the
    purpose of the present appeal, we would assume that the
    various allegations of fact which have been made in the
    complaint by the appellant are correct. Even after making that
    allowance, we find that the complaint does not disclose the
    commission of any offence on the part of the respondents
    under Section 420 Penal Code, 1860. There is nothing in the
    complaint to show that the respondents had dishonest or
    fraudulent intention at the time the appellant parted with Rs.
    35.000/- There is also nothing to indicate that the respondents
    induced the appellant to pay them Rs. 35,000/- by deceiving
    him. It is further not the case of the appellant that a
    representation was made, the respondents knew the same to be


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R/CR.MA/9644/2017                             JUDGMENT DATED: 12/08/2026




    false. The fact that the respondents subsequently did not abide
    by their commitment that they would show the appellant to be
    the proprietor of Drang Transport Corporation and would
    also render accounts to him in the month of December might
    create civil liability on the respondents for the offence of
    cheating.”

    29. To put it in other words, the case of cheating and dishonest
    intention starts with the very inception of the transaction. But
    in the case of criminal breach of trust, a person who comes
    into possession of the movable property and receives it legally,
    but illegally retains it or converts it to his own use against the
    terms of the contract, then the question is, in a case like this,
    whether the retention is with dishonest intention or not,
    whether the retention involves criminal breach of trust or only
    a civil liability would depend upon the facts of each case.

    30. The distinction between mere breach of contract and the
    offence of criminal breach of trust and cheating is a fine one.
    In case of cheating, the intention of the accused at the time of
    inducement should be looked into which may be judged by a
    subsequent conduct, but for this, the subsequent conduct is not
    the sole test. Mere breach of contract cannot give rise to a
    criminal prosecution for cheating unless fraudulent or
    dishonest intention is shown right from the beginning of the
    transaction i.e. the time when the offence is said to have been
    committed. Therefore, it is this intention, which is the gist of
    the offence. Whereas, for the criminal breach of trust, the
    property must have been entrusted to the accused or he must
    have dominion over it. The property in respect of which the
    offence of breach of trust has been committed must be either
    the property of some person other than the accused or the
    beneficial interest in or ownership’ of it must be of some other


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    person. The accused must hold that property on trust of such
    other person. Although the offence, i.e. the offence of breach of
    trust and cheating involve dishonest intention, yet they are
    mutually exclusive and different in basic concept. There is a
    distinction between criminal breach of trust and cheating. For
    cheating, criminal intention is necessary at the time of making
    a false or misleading representation i.e., since inception. In
    criminal breach of trust, mere proof of entrustment is
    sufficient. Thus, in case of criminal breach of trust, the
    offender is lawfully entrusted with the property, and he
    dishonestly misappropriated the same. Whereas, in case of
    cheating, the offender fraudulently or dishonestly induces a
    person by deceiving him to deliver any property. In such a
    situation, both the offences cannot co-exist simultaneously.

    31. At the most, the court of the Additional Chief Judicial
    Magistrate could have issued process for the offence
    punishable under Section 420 of the IPC i.e. cheating but in
    any circumstances no case of criminal breach of trust is made
    out. The reason being that indisputably there is no entrustment
    of any property in the case at hand. It is not even the case of
    the complainant that any property was lawfully entrusted to
    the appellants and that the same has been dishonestly
    misappropriated. The case of the complainant is plain and
    simple. He says that the price of the goods sold by him has not
    been paid. Once there is a sale, Section 406 of the IPC goes
    out of picture. According to the complainant, the invoices
    raised by him were not cleared. No case worth the name of
    cheating is also made out.

    32. Even if the Magistrate would have issued process for the
    offence punishable under Section 420 of the IPC, i.e., cheating
    the same would have been liable to be quashed and set aside,


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    as none of the ingredients to constitute the offence of cheating
    are disclosed from the materials on record.

    33. It has been held in State of Gujarat v. Jaswantlal Nathalal
    reported in (1968) 2 SCR 408, “The term “entrusted” found in
    Section 405 IPC governs not only the words “with the
    property” immediately following it but also the words “or with
    any dominion over the property” occurring thereafter—see
    Velji Raghvaji Patel v. State of Maharashtra [(1965) 2 SCR
    429]. Before there can be any entrustment there must be a
    trust meaning thereby an obligation annexed to the ownership
    of property and a confidence reposed in and accepted by the
    owner or declared and accepted by him for the benefit of
    another or of another and the owner. But that does not mean
    that such an entrustment need conform to all the technicalities
    of the law of trust — see Jaswantrai Manilal Akhaney v. State
    of Bombay [1956 SCR 483]. The expression “entrustment”
    carries with it the implication that the person handing over
    any property or on whose behalf that property is handed over
    to another, continues to be its owner. Further the person
    handing over the property must have confidence in the person
    taking the property so as to create a fiduciary relationship
    between them. A mere transaction of sale cannot amount to an
    “entrustment””.

    34. Similarly, in Central Bureau of Investigation, SPE, SIU(X),
    New Delhi v. Duncans Agro Industries Ltd., Calcutta reported
    in (1996) 5 SCC 591 this Court held that the expression
    “entrusted with property” used in Section 405 of the IPC
    connotes that the property in respect of which criminal breach
    of trust can be committed must necessarily be the property of
    some person other than the accused or that the beneficial
    interest in or ownership thereof must be in the other person


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    and the offender must hold such property in trust for such
    other person or for his benefit. The relevant observations read
    as under: -
    “27. In the instant case, a serious dispute has been raised by
    the learned counsel appearing for the respective parties as to
    whether on the face of the allegations, an offence of criminal
    breach of trust is constituted or not. In our view, the
    expression “entrusted with property” or “with any dominion
    over property” has been used in a wide sense in Section 405
    IPC. Such expression includes all cases in which goods are
    entrusted, that is, voluntarily handed over for a specific
    purpose and dishonestly disposed of in violation of law or in
    violation of contract. The expression ‘entrusted’ appearing in
    Section 405 IPC is not necessarily a term of law. It has wide
    and different implications in different contexts. It is, however,
    necessary that the ownership or beneficial interest in the
    ownership of the property entrusted in respect of which
    offence is alleged to have been committed must be in some
    person other than the accused and the latter must hold it on
    account of some person or in some way for his benefit. The
    expression ‘trust’ in Section 405 IPC is a comprehensive
    expression and has been used to denote various kinds of
    relationships like the relationship of trustee and beneficiary,
    bailor and bailee, master and servant, pledger and pledgee.
    When some goods are hypothecated by a person to another
    person, the ownership of the goods still remains with the
    person who has hypothecated such goods. The property in
    respect of which criminal breach of trust can be committed
    must necessarily be the property of some person other than the
    accused or the beneficial interest in or ownership of it must be
    in the other person and the offender must hold such property
    in trust for such other person or for his benefit. In a case of
    pledge, the pledged article belongs to some other person but


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    the same is kept in trust by the pledgee. [...]” (Emphasis
    supplied)

    35. The aforesaid exposition of law makes it clear that there
    should be some entrustment of property to the accused
    wherein the ownership is not transferred to the accused. In
    case of sale of movable property, although the payment may
    be deferred yet the property in the goods passes on delivery as
    per Sections 20 and 24 respectively of the Sale of Goods Act,
    1930.
    "20. Specific goods in a deliverable state. - Where there is an
    unconditional contract for the sale of specific goods in a
    deliverable state, the property in the goods passes to the buyer
    when the contract is made and it is immaterial whether the
    time of payment of the price or the time of delivery of goods,
    or both, is postponed.
    xxx xxx xxx
    24. Goods sent on approval or "on sale or return". - When
    goods are delivered to the buyer on approval or "on sale or
    return" or other similar terms, the property therein passes to
    the buyer -
    (a) when he signifies his approval or acceptance to the seller
    or does any other act adopting the transaction;
    (b) if he does not signify his approval or acceptance to the
    seller but retains the goods without giving notice of rejection,
    then, if a time has been fixed for the return of the goods on the
    expiration of such time, and, if no time has been fixed, on the
    expiration of a reasonable time."

    36. From the aforesaid, there is no manner of any doubt
    whatsoever that in case of sale of goods, the property passes to
    the purchaser from the seller when the goods are delivered.
    Once the property in the goods passes to the purchaser, it


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    cannot be said that the purchaser was entrusted with the
    property of the seller. Without entrustment of property, there
    cannot be any criminal breach of trust. Thus, prosecution of
    cases on charge of criminal breach of trust, for failure to pay
    the consideration amount in case of sale of goods is flawed to
    the core. There can be civil remedy for the non-payment of the
    consideration amount, but no criminal case will be
    maintainable for it. [See : Lalit Chaturvedi and Others v. State
    of Uttar Pradesh and Another : 2024 SCC OnLine SC 171 &
    Mideast Integrated Steels Ltd. (MESCO Steel Ltd.) and Others
    v. State of Jharkhand and Another : 2023 SCC OnLine Jhar
    301 ]

    37. The case at hand falls in category No. 1 as laid in Smt.
    Nagawwa (supra) referred to in para 7 of this judgment.

    38. If it is the case of the complainant that a particular amount
    is due and payable to him then he should have filed a civil suit
    for recovery of the amount against the appellants herein. But
    he could not have gone to the court of Additional Chief
    Judicial Magistrate by filing a complaint of cheating and
    criminal breach of trust.

    39. It appears that till this date, the complainant has not filed
    any civil suit for recovery of the amount which according to
    him is due and payable to him by the appellants. He seems to
    have prima facie lost the period of limitation for filing such a
    civil suit.

    40. In such circumstances referred to above, the continuation
    of the criminal proceeding would be nothing but abuse of the
    process of law.



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      41. Before we close this matter, we would like to say
      something as regards the casual approach of the courts below
      in cases like the one at hand. The Indian Penal Code (IPC)
      was the official Criminal Code in the Republic of India
      inherited from the British India after independence. The IPC
      came into force in the sub-continent during the British rule in
      1862. The IPC remained in force for almost a period of 162
      years until it was repealed and replaced by the Bharatiya
      Nyaya Sanhita ("BNS ) in December 2023 which came into
      effect on 1st July 2024. It is indeed very sad to note that even
      after these many years, the courts have not been able to
      understand the fine distinction between criminal breach of
      trust and cheating.


8.1. Thus, applying the ratio as held by the Hon’ble Apex Court in
the aforesaid judgment and the allegations leveled in the FIR tested
on the aforesaid principle, would clearly fail to pass the test as
applied herein above, more particularly, the stay of Kruti with the
present petitioners is for very short span which does not inspire
confidence with regards to the allegations qua the petitioners. This is
so because to attract the provisions of 406, i.e. criminal breach of
trust, the first and foremost requirement is entrustment a person with
the property or with any dominion over property. However, no
averment in the FIR reveals with regards to entrustment or dominion
over property, thus, punishment for criminal breach of trust is not
attracted. As far as ingredients of offence of cheating is concerned,
as provided under Section 415 and punishable under Section 420,
the ingredients to constitute cheating is that, there should be a



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fraudulent or dishonest inducement of a person by deceiving him. As
far as present case is concerned, the person so deceived should be
intentionally induced to do or omit to do anything which he would
not do or omit if he were not so deceived. However, the act of
omission should be one which causes or is likely to cause damage or
harm to a person induced in body, mind, reputation or property. As
far as the allegations of cheating against present petitioners are
concerned, the entire averment as taken as it is in the FIR, would not
constitute any fraudulent or dishonest inducement by the petitioners,
thereby deceiving the niece of the complainant intentionally to
induce to do or omit to do anything. More particularly, the
averments against the present petitioners are conspicuously silent in
the FIR, as to how the petitioners would be held liable for cheating,
only to see that accused No.1 – Jaimin Vyankatesh Pandya married
with the niece of the complainant, only with the purpose to see that
he reaches Canada so as to ultimately travel USA. When there is
nothing to point out such fact that the niece of the complainant was
deceived intentionally so that she was induced to marry, or that there
was omission intentionally and that if she had known that the
marriage was only for the purpose of seeing that Jaimin reaches
Canada, somehow, even then also such omission has caused or was
likely to cause damage or harm to the niece of the complainant in
body, mind, reputation or property is also conspicuously missing,
and thus, the present petitioners cannot be held liable for cheating,
and ultimately either attracting provisions of Section 417 or 420 of



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the IPC.


9.       As far as conspiracy and common intention is concerned,
except for bare statement, there is nothing on chargesheet to point
out that the present petitioners had conspired, and it is clearly seems
to be a dispute between husband and wife wherein the petitioners
being mother-in-law and brother-in-law of original accused Jaimin
have been dragged into, for no fault of theirs, without there being
attributed any specific instances except for bare statement alleging of
conspiracy and common intention.


10.      Though, this Court is aware that there cannot be any direct
evidence as far as conspiracy and common intention is concerned,
but as such, from the entire papers of the chargesheet such fact
cannot be gathered, under the circumstances, continuing proceedings
against the present petitioners would amounts to abuse of process of
law, more so, when no case is made out for Sections 406 or 420 of
the IPC.


11.      In view of the above, the present petitions succeed and
accordingly, it is allowed. The FIR being C.R.No.I-86 of 2017,
lodged before the Anand Town Police Station, District: Anand,
dated 05.04.2017, qua petitioner No.2 of Criminal Misc. Application
No.9644 of 2017 and petitioner of Criminal Misc. Application
No.9645 of 2017, and consequential proceedings arising therefrom
are hereby quashed and set aside, since the petitioner No.1 of


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Criminal Misc. Application No.9644 of 2017 is abated.


12.       Rule is made absolutely to the aforesaid extent. Direct service
is permitted.


13.       It is made clear that the investigation and/or trial Court shall
not be influenced by the observation made herein qua original
accused No.1 - husband of Kruti namely Jaimin Vyankatesh Pandya.


                                                                                                 (P. M. RAVAL, J)
NITIN MAKWANA

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: NITIN INDRAVADAN MAKWANA(HCW0110), ENGLISH STENOGRAPHER GRADE ONE, at High Court of Gujarat on 14/08/2026 15:28:17




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