TMI Blog2019 (1) TMI 1632X X X X Extracts X X X X X X X X Extracts X X X X ..... t this stage causes no irreparable harm to the accused. Quashing of the charges - HELD THAT:- It is well settled that such exercise needs to be undertaken by the High Court in exceptional cases. It is also well settled that the framing of charges being initial stages in the trial process, the court therein cannot base the decision of quashing the charge on the basis of the quality or quantity of evidence rather the enquiry must be limited to a prima facie examination. Charge under Section 415 punishable under Section 420 of IPC - HELD THAT:- The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, dated 12.04.2018, passed by the High Court of Gujarat, in Criminal Miscellaneous Application No. 4033 of 2012, wherein the High Court has dismissed appellant s application seeking quashing of the order framing the charges dated 04.12.2013 by the Additional Chief Metropolitan Magistrate in Criminal Case No. 388 of 2012. 3. It is pertinent to note the facts giving rise to the appeal in a detailed manner. The respondent no. 2complainant is the director of a money lending company by the name of Dharshan Fiscal Pvt. Ltd. The appellant, who is a retired bank employee, approached the complainant s company in the month of January 2008 for a loan of ₹ 27,00,000/. Accordingly, the respondent no. 2 transferred the funds as a loan, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neous Application no. 4033 of 2012 wherein he sought for the inclusion of prayer seeking to quash and set aside the charge sheet no. 28/ 2012 in FIR No. I/C.R No.22/2012 and the charges framed by the Metropolitan Magistrate vide order dated 04.12.2013 and all further proceeding carried out in Criminal Case no. 388/2012 pending before the Additional Metropolitan Magistrate. 6. It is pertinent to note that, simultaneously respondent no.2 had preferred a summary suit in Summary Civil Suit no. 928/2011 seeking the recovery of ₹ 33,46,225/which was inclusive of the interest upon the principal amount. The same was admitted on 25.04.2011 and is still pending before the City Civil Judge, Ahmedabad. 7. Vide order dated 12.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the High Court has stated that the appellant had fraudulent intention from the beginning having induced the respondent no.2 to lend the aforesaid amount of ₹ 27 lacs. Further, the appellant never had the intention to repay the loan even though multiple requests were made to him. The counsel pressed that whether the intention was to cheat from the inception or not is a question of fact and the same can only be decided by trial after appreciating the entire evidence. 10. Before we analyse this case, it is to be noted that the criminal application preferred by the accused before the High Court was against the order of the Trial Court at the stage of framing of charges, wherein it is the duty of the court to app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment/investment of money and entrustment of money or property. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment. 13. In this context, we may note that there is nothing either in the complaint or in any material before us, pointing to the fact that any property was entrusted to the appellant at all which he dishonestly converted for his own use so as to satisfy the ingredients of Section 405 punishable under Section 406 of IPC. Hence the learned Magistrate committed a serious error in issuing process against the appellants for the said offence. Unfortunately, the High Court also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involuntary and inefficient transfers, under Section 415 of IPC. 16. However, the High Court appears to have been carried away by the moral element involved in the breach of promise and made certain observations. Being a policy consideration, such suggestions need to be restricted. The aforementioned observations of the High Court were not only unnecessary for the adjudication of this matter, but the same could have been understood as casting some kind of aspersions on the accused. This clearly reflected a loaded dice situation against the appellant herein. 17. In our considered opinion, the High Court should have maintained judicial restraint and desisted from making such general observations at this stage of the crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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