Gauhati High Court
Shri Rakesh Singh vs State Of Assam on 20 May, 2026
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GAHC010289132025
2026:GAU-AS:6973
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./27/2026
SHRI RAKESH SINGH
SON OF LATE RAM BALI SINGH RESIDENT OF SHERWAN, PARGASPUR,
SANT RAVIDAS NAGAR, UTTAR PRADESH 221409
VERSUS
STATE OF ASSAM
REP, BY THE PP, ASSAM
Advocate for the Petitioner : R C SANCHATI, MR. A SANCHETI,MR S SANCHETI
Advocate for the Respondent : PP, ASSAM,
BEFORE
HONOURABLE MRS. JUSTICE MITALI THAKURIA
JUDGMENT & ORDER (CAV)
Date : 20-05-2026
Heard Mr. V. Kandwal, the learned counsel for the petitioner. Also heard
Mr. K.K. Das, the learned Addl. PP appearing on behalf of State respondent.
2. This is an application under Section 528 BNSS read with Section 482 Cr.PC,
praying for quashing of the entire criminal proceeding in PRC Case No.
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301/2020 pending before the Court of learned SDJM (M), Nazira and further
prayed for quashing of the FIR as well as Charge Sheet and order of taking
cognizance against the present petitioner.
3. It is the case of the petitioner that he joined in the tea garden of the
complainant as Field Manager on 06.04.2015 and worked with his honesty and
dedication throughout his employment. But, in the year 2018 his wife started
facing serious health issues including depression and high blood pressure and
the petitioner was forced to apply for leave frequently for which the complainant
had misbehaved him in front of the other co-workers for which the petitioner
had to give his resignation to the complainant and left the job on 23.10.2018.
Thereafter he joined as a Field Manager in Dholi Tea Estate and requested the
complainant to return back his belongings from his residence which was allotted
to the petitioner by the complainant during his employment. But, the
complainant having personal animosity with the petitioner refused to let him to
collect his belongings and kept the house locked. For this issue there was a
verbal altercation between the petitioner and the complainant and finally he was
allowed to collect his belongings from the premises, where he was
accommodated.
4. After five months of his resignation, the complainant had registered the
present FIR with the allegation of misappropriation of funds as well as stealing
of chemicals used for tea plantations, which are false and baseless. These
allegations were never made against the present petitioner during his
employment in the complainant’s tea garden i.e. Suntok Tea Garden from the
year 2015 to 2018, during his period of employment. The police also registered
the case only on the basis of the FIR without making any preliminary enquiry
which was lodged only due to some personal grudge by the complainant.
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5. It is further stated that no case is made out against the present petitioner
to fulfill the ingredients of Section 420 & 406 IPC and there is no such seizure to
implicate the present accused/petitioner in the alleged offence. During his
employment, the complainant never raised any dispute with regards to payment
made to the workers at the tea garden prior to lodging of the FIR in the year
2019, which itself indicates that the allegations made in the present FIR are
nothing but an afterthought and an attempt to settle the personal scores with
the petitioner by lodging a false and frivolous allegation against the present
petitioner. More so, 12 nos. of witnesses, who were cited in the Charge Sheet
includes the clerk and workers of the company and they are not the
independent witnesses rather they are dependent completely on the
complainant.
6. It is further stated that the petitioner is of 71 years old person who has to
take care of his 69 years old wife in Lucknow, Uttar Pradesh. He is not even
medically fit to undergo trial in the present case in Sivasagar district, which is
far away from his hometown.
7. The learned counsel Mr. Kandwal further submitted that the present case
has been lodged after five months of his resignation and no complaint was filed
against him while he was working under the said company and thus the factual
matrix clearly reflects personal vendetta arising out of strain relation after his
resignation and thus this case squarely covers the case of Bhajan Lal (supra)
passed by the Hon’ble Apex Court, which is reported vide 1992 Sup 1 SCC
335.
8. He further submitted that even if the entire allegations made in the FIR and
the Charge Sheet are accepted at the face value, no offence u/s 420 or 406 IPC
is made out against the petitioner. There is no allegation of dishonest intention
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at the inception of employment, nor any entrustment of the property coupled
with misappropriation is available to take cognizance by the learned Court of
SDJM(M), Nazira u/s 420 & 406 IPC and hence this is a fit case wherein the
entire criminal proceedings including the FIR and the Charge Sheet is liable to
be set aside and quashed by invoking power u/s 528 BNSS.
9. Mr. Kandwal further submitted that the resignation of the present petitioner
was well within the knowledge of the complainant. But, in spite of that a case
was lodged after six months of his resignation without even mentioning the
amount of money misappropriated by the present petitioner. In that context he
relied on a decision of Hon’ble Supreme Court passed in Criminal Appeal No.
238/2019 arising out of Special Leave Petition (Crl.) No. 1434 of 2018
[Prof. R.K. Vijayasarathy & Anr. V. Sudha Seetharam & Anr.] and
emphasized on paragraphs 17, 18 & 19 of the said judgment.
“17 The condition necessary for an act to constitute an offence under Section 405 of the Penal
Code is that the accused was entrusted with some property or has dominion over property. The
first respondent has stated that the disputed sum was transferred by the son of the appellants of
his own volition to her. The complaint clearly states that the amount was transferred for the
benefit of the son of the appellants and that the first respondent was to hold the amount ‘in trust’
for him. The complaint alleges that the money was transferred to the appellants ‘as per the dicta’
of the son of the appellants. There is on the face of the complaint, no entrustment of the
appellants with any property.
18. The condition necessary for an act to constitute an offence under Section 415 of the Penal
Code is that there was dishonest inducement by the accused. The first respondent admitted that
the disputed sum was transferred by the son of the appellants to her bank account on 17
February 2010. She alleges that she transferred the money belonging to the son of the appellants
at his behest. No act on part of the appellants has been alleged that discloses an intention to
induce the delivery of any property to the appellants by the first respondent. There is thus
nothing on the face of the complaint to indicate that the appellants dishonestly induced the first
respondent to deliver any property to them. Cheating is an essential ingredient to an offence
under Section 420 of the Penal Code. The ingredient necessary to constitute the offence of
cheating is not made out from the face of the complaint and consequently, no offence
under Section 420 is made out.
19. In Binod Kumar v State of Bihar7 certain amounts were due and payable to a contract
worker. When the amount due was not paid due to a termination of the contract, the worker
filed a criminal case against the appellant for criminal breach of trust. The appellants’ petition
Page No.# 5/11under Section 482 of the Code of Criminal Procedure for quashing was dismissed by the High
Court. A two judge Bench of this Court examined the ingredients of the offence and whether the
complaint on its face disclosed the commission of any offence. This Court quashed the criminal
proceedings holding thus:
“14. At this stage, we are only concerned with the question whether the averments in the
complaint taken at their face value make out the ingredients of criminal offence or not.
18. In the present case, looking at the allegations in the complaint on the face of it, we
find that no allegations are made attracting the ingredients of Section 405 IPC.
Likewise, there are no allegations as to cheating or the dishonest intention of the
appellants in retaining the money in order to have wrongful gain to themselves or
causing wrongful loss to the complainant. Excepting the bald allegations that the
appellants did not make payment to the second respondent 7 (2014) 10 SCC 663 and
that the appellants utilised the amounts either by themselves or for some other work,
there is no iota of allegation as to the dishonest intention in misappropriating the
property…
19. Even if all the allegations in the complaint taken at the face value are true, in our
view, the basic essential ingredients of dishonest misappropriation and cheating are
missing. Criminal proceedings are not a shortcut for other remedies. Since no case of
criminal breach of trust or dishonest intention of inducement is made out and the
essential ingredients of Sections 405/420 IPC are missing, the prosecution of the
appellants under Sections 406/120-B IPC, is liable to be quashed.”
10. Mr. Kandwal further submitted that it is a settled law that for establishing
the offence of cheating, the complainant is required to show that the accused
had a fraudulent or dishonest intention at the time of making promise or
representation. Mere vague allegations by the complainant about cheating
cannot fulfill the ingredients of Section 420 IPC. To that extend also he relied on
the decision of the Apex Court passed in criminal appeal arising out of Special
Leave Petition (Crl.) No. 3415/2024 and basically emphasized on
paragraphs 16 & 19 of the said judgment.
11. Mr. Kandwal further submitted that in a case of Hridaya Ranjan Prasad
Verma v. State of Bihar, reported in (2000) 4 SCC 168 has also clarified
that:- “mere breach of contract or failure to keep promise does not constitute
cheating unless there was dishonest intention at the very inception of the
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transaction.”
12. Mr. Kandwal also cited the decision of Mahavir Prasad Gupta v. State of
NCT of Delhi, reported in (2000) 8 SCC 115 wherein also it has been held by
the Hon’ble Supreme Court that:- ” Where the allegations are inherently
improbable and based on interested testimony, continuation of proceedings
would be abuse of process”.
13. He further submitted that in the present case also all the witnesses cited
by the prosecution are interested witnesses who are the employee, clerks or
workers of the company and the entire case is based on those witnesses who
are undoubtedly the interested witnesses of the prosecution. Citing above
referred judgment it is submitted by Mr. Kandwal that it is a fit case wherein the
case of the present petitioner pending before the Court of learned SDJM (M),
Nazira along with the order of cognizance and the FIR and the Charge Sheet is
liable to be set aside and quashed by invoking the power u/s 528 BNSS.
14. Mr. K. K. Das, the learned Addl. PP submitted in this regard that the
learned Trial Court below after perusal of the case record and finding prima
facie case had taken cognizance against the present petitioner and hence there
is no need of any interference of the order of cognizance taken by the learned
Trial Court below. He further submitted that during investigation, sufficient
materials were found against the present petitioner and accordingly the case
has been charge-sheeted u/s 420/406 IPC.
15. Mr. Das further submitted that the petitioner will get ample opportunity to
pray for his discharge at the time of charge hearing. But, from the plain reading
of the FIR itself it is seen that there is a prima facie case against the
accused/petitioner for a cognizable offence and on the basis of which the
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Charge Sheet has already been laid and cognizance has already been taken by
the learned Trial Court below. Citing the judgment of the Hon’ble Supreme Court
in case of Bhajan Lal (supra), Mr. Das submitted that the case is not liable to
be set aside and quashed, as the plain reading of the FIR in its face value
discloses the cognizable offence against the present petitioner. Mr. Das
accordingly submitted that the preset petition is also at a very premature stage
and the petitioner will also get ample opportunity to pray for discharge at the
time of framing charge and hence it is not at all a fit case to quash the entire
criminal proceeding including the Charge Sheet and the FIR by invoking the
power u/s 528 Cr.PC.
16. Hearing the submissions made by learned counsel for both sides, I have
also perused the case record and the TCR, which have already been received by
the learned Trial Court below.
17. The allegation has been brought against the present petitioner that he has
committed serious misconduct by misappropriating the fund of the labourers
and also did theft in the Company, where he was working as a Field Manager. It
is further alleged that he had collected a huge amount of money showing to be
paid to the labourers who were not even worked. Thus, he fraudulently cheated
the Company and also misappropriated the Company’s fund which were allotted
to him on trust. On the other hand, it is the case of the petitioner that a false
and concocted allegation has been brought against him only on the ground that
he resigned from the company due to misbehaviour of the company’s authority
as well as for not returning his own belonging from the Company premises. It is
further alleged that after five months of his resignation, the FIR has been
lodged, though it was well within the knowledge of the informant that he has
already resigned and joined in another place. It is further the case of the
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petitioner that there was no dispute in regards to payment made to the tea
garden workers prior to the lodging of the FIR in the year 2019 and it itself
indicates that the allegation made in the present FIR are nothing but
afterthought with an attempt to settle the personal scores. But, from the plain
reading of the FIR it reveals that sufficient incriminating materials brought
against the present accused/petitioner which prima facie reveals a cognizable
offence against the present petitioner. At the time of trial or at the time of
framing the charge, the learned Trial Court below can look into the matter as to
whether false accusation has been made against the present petitioner. But,
from the prima facie allegation it is seen that the petitioner had misappropriated
the fund in the name of the employment of some workers who were not
actually worked in the factory and thus he misappropriated some amount of
money. However, it is a fact that the exact amount of misappropriated money is
not mentioned in the FIR, apart from the allegation of misappropriation and
cheating there is another allegation brought against the present petitioner
regarding the theft of some chemicals from the tea estate. However, the Charge
Sheet is not filed under any section apart from Section 420 and 406 IPC. The
learned Court below took cognizance of the offence finding a prima facie case
against the present petitioner. There is no need of appreciation of evidence.
18. The Hon’ble Apex Court in the case of Delhi Race Club (1940) Limited
and Others v. State of Uttar Pradesh & Another, reported in (2024) 10
SCC 690, in paragraphs 12, 13 & 14 of above referred judgment it has been
held as under:-
“12. It is by now well settled that at the stage of issuing process it is not the duty of the Court to
find out as to whether the accused will be ultimately convicted or acquitted. The object of
consideration of the merits of the case at this stage could only be to determine whether there are
sufficient grounds for proceeding further or not. Mere existence of some grounds which would
Page No.# 9/11be material in deciding whether the accused should be convicted or acquitted does not generally
indicate that the case must necessarily fail. On the other hand, such grounds may indicate the
need for proceeding further in order to discover the truth after a full and proper investigation.
13. If, however, a bare perusal of a complaint or the evidence led in support of it shows
essential ingredients of the offences alleged are absent or that the dispute is only of a civil
nature or that there are such patent absurdities in evidence produced that it would be a waste of
time to proceed further, then of course, the complaint is liable to be dismissed at that stage only.
14. What the Magistrate has to determine at the stage of issue of process is not the correctness
or the probability or improbability of individual items of evidence on disputable grounds, but
the existence or otherwise of a prima facie case on the assumption that what is stated can be true
unless the prosecution allegations are so fantastic that they cannot reasonably be held to be true.
[See : D.N. Bhattacharjee v. State of West Bengal. “
19. However, it is well settled that Section 420 & 406 IPC jointly cannot come
together in the same time. But, in the instant case it is seen that till date the
learned Trial Court below has not framed charge by applying his judicial mind
and hence it cannot be held that charges will be framed according to the
sections under which the case has been charge-sheeted.
20. In case of State of Haryana v. Bhajan Lal, reported in 1992 Supple. 1
SCC 335, the Hon’ble Apex Court had provided several guidelines while
disposing the criminal petition for quashing. The following guidelines are issued
in para 102, which reads 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
channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such powers should be exercised.
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(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 entirely 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 expert 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 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 an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private
and personal grudge.”
21. In the instant case it is seen that on the plain reading of the FIR itself a
prima facie case reveals against the accused/petitioner and hence it cannot be
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held that there is no prima facie case against the present accused/petitioner at
the face value of the FIR for quashing or setting aside the criminal proceeding
instantly.
22. So, considering all these aspects of the case, materials available in the case
record as well as the statement made in the FIR, this Court is of the opinion
that it is not a fit case to set aside and quash the entire criminal proceeding i.e.
the PRC Case No. 301/2020 pending before the Court of learned SDJM(M),
Nazira and quashing of the FIR dated 12.03.2019 by invoking the power u/s 528
BNSS.
23. Accordingly, the present petition stands rejected and disposed of.
Digitally signed by Sharmila Das Sarkar DN: c=IN, o=Personal, postalCode=781005, l=Kamrup Metro, st=Assam, street=House No 27 Christian Basti, Dispur, Sharmila Dispur Assam India 781005 Micro Gym, title=2736, Das Sarkar 2.5.4.20=c9084fbea146a0355c87 2b8a1f92b9033471836998cbf83e 30f11fcc6ddd4593, JUDGE serialNumber=36cfb08e0b51e27 0eadc7a95babe60f2889c30c6587 2c5ba85f1b37aab1f95a5, email=sharmiladassarkar@gmail. com, cn=Sharmila Das Sarkar Date: 2026.05.21 11:09:31 +05'30' Comparing Assistant
