Thakor Jigarji Ishvarji vs State Of Gujarat on 27 July, 2026

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    Gujarat High Court

    Thakor Jigarji Ishvarji vs State Of Gujarat on 27 July, 2026

                                                                                                                 NEUTRAL CITATION
    
    
    
    
                                  R/CR.MA/1297/2023                                JUDGMENT DATED: 27/07/2026
    
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                                              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                                    R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                                  FIR/ORDER) NO. 1297 of 2023
    
    
                                 FOR APPROVAL AND SIGNATURE:
    
    
                                 HONOURABLE MR.JUSTICE P. M. RAVAL
                                 ==========================================================
    
                                             Approved for Reporting                Yes             No
    
                                 ==========================================================
                                                        THAKOR JIGARJI ISHVARJI & ORS.
                                                                   Versus
                                                          STATE OF GUJARAT & ANR.
                                 ==========================================================
                                 Appearance:
                                 MR PRATIK B BAROT(3711) for the Applicant(s) No.
                                 1,10,11,2,3,4,5,6,7,8,9
                                 DS AFF.NOT FILED (N) for the Respondent(s) No. 2
                                 K.M. ANTANI, APP for the Respondent(s) No. 1
                                 ==========================================================
    
                             CORAM:HONOURABLE MR.JUSTICE P. M. RAVAL
    
                                                               Date : 27/07/2026
    
                                                                   JUDGMENT
    

    1. Rule fixed forthwith. Learned APP waives service of rule on
    behalf of the respondent – State.

    2. The applicants have invoked the inherent jurisdiction of this
    Court under Section 482 of the Code of Criminal Procedure,
    1973, seeking quashing and setting aside of the impugned FIR
    being C.R. No. 11206075220452 of 2022 registered with
    Visnagar Town Police Station, District Mehsana, for the offences
    punishable under Sections 406, 420, 465, 467, 468, 471, 474,
    114 and 120B of the Indian Penal Code, Sections 13, 14, 19 and

    SPONSORED

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    23(1)(b), (c), (d), (e), (f), (g) and (i) of the Securities Contracts
    (Regulation) Act, 1956
    , and Section 66D of the Information
    Technology Act, along with all consequential proceedings arising
    therefrom.

    3. The brief facts as narrated in the FIR are to the effect that:

    (3.1) Respondent No.2 – original first informant as in
    capacity of Assistant Sub-inspector serving with Visnagar Town
    Police Station, upon a secret information received by them that
    applicant No.1 – Thakor Jigarji Ishvarji by calling the persons in
    the house of her sister, namely, Thakor Komalben Ishvarji, and
    by giving them the mobiles as well as dummy sim cards and
    keeping a search on the market plus application downloaded in
    his mobile, applicant No.1 was giving tips for earning more
    money without procuring any valid licence from the Stock
    Market, all the applicants are illegally indulged into a “dabba
    trading” in such premises as also are maintaining records to
    that effect, soon thereafter, after a search warrant was procured,
    raid was carried out at the said premises wherein the present
    applicants were found and arrested from the scene of offence
    with mobile phones, sim cards, account books, which resulted
    into lodgment of the impugned FIR as against twelve arrested
    accused as along with one Kripalsinh, in nutshell with a case
    that with the help of market plus application downloaded, a
    financial loss is caused to Government of India and SEBI by
    artificially shooting the prizes of shares and thereby deriving
    monetary gain out of such illegality.

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    4. Learned advocate Mr. Ravi Mandaliya, appearing on behalf
    of learned advocate Mr. Pratik B. Barot for the applicants,
    submitted that, as per the prosecution case, the applicants are
    alleged to have been involved in dubba trading. It is alleged that
    the raiding party apprehended the applicants at the house of the
    sister of applicant No.1 and recovered certain articles, including
    mobile phones, account books and other incriminating material.
    However, even if the allegations contained in the FIR are
    accepted in their entirety, no offence under Sections 406 and
    420 of the Indian Penal Code is made out. It was submitted that
    there was neither any entrustment of property nor any dishonest
    misappropriation so as to attract the ingredients of Section 405
    IPC. Likewise, the essential ingredients of the offence of
    cheating, namely dishonest or fraudulent inducement, are
    conspicuously absent. Hence, no case is made out against the
    applicants under Sections 406 and 420 IPC.

    5. Learned advocate further submitted that, in view of Section
    26
    of the Securities Contracts (Regulation) Act, 1956, no Court
    can take cognizance of any offence under the said Act except
    upon a complaint made by the competent authority as
    contemplated under Section 2(d) of the Code of Criminal
    Procedure, 1973. It was contended that the present proceedings
    have been initiated on the basis of an FIR lodged by the
    investigating agency and not on a complaint by the competent
    authority. Therefore, in view of the statutory bar contained in
    Section 26 of the Securities Contracts (Regulation) Act, 1956,
    the impugned FIR is without jurisdiction and deserves to be
    quashed and set aside. It was, accordingly, urged that the FIR

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    and all consequential proceedings arising therefrom be quashed
    and set aside.

    6. Per contra, learned APP submitted that, insofar as the bar
    under Section 26 of the Securities Contracts (Regulation) Act,
    1956 is concerned, the legal position is well settled. However, he
    relied upon the statements of various witnesses, including those
    in whose names the dummy SIM cards were procured, to
    contend that the ingredients of the offences under the IPC are
    still made out. It was, therefore, argued that the proceedings,
    insofar as they relate to the offences under the IPC, ought not to
    be quashed.

    7. Heard learned advocates for the respective parties.

    7.1 Section 26 of the Securities Contracts (Regulation) Act,
    1956, reads thus:

    “26. Cognizance of offences.–

    (1) No Court shall take cognizance of any offence
    punishable under this Act or any rules, regulations or
    bye-laws made thereunder, save on a complaint made
    by the Central Government or the State Government or
    the Securities and Exchange Board of India or a
    recognized Stock Exchange or by any person.

    (2) No Court inferior to that of a Court of Session shall
    try any offence punishable under this Act.”

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    7.2 A plain reading of Section 26 of the Securities
    Contracts (Regulation) Act, 1956 would indicate that no Court
    can take cognizance of any offence punishable under the said
    Act or the rules, regulations or bye-laws framed thereunder,
    except upon a complaint made by the Central Government, the
    State Government, the Securities and Exchange Board of India,
    a recognized Stock Exchange, or any other person authorized
    under the provision.

    7.3 Even if it is assumed for the moment that the
    respondent No. 2 herein would fall within the ambit of ‘any
    person’. The issue which falls for consideration of this Court is,
    whether the Court before whom the charge-sheet would be filed,
    can take cognizance of the offence. The word ‘complaint’
    figuring under Section 26 of the Act means, a complaint in
    writing before the Court as defined under Section 2(d) of the
    Code of Criminal Procedure, 1973. The Court is conscious of
    the fact that Section 25 makes the offence under Section 23 of
    the Act a cognizable offence. Since Section 23 of the Act is a
    cognizable offence, police would definitely have power to
    investigate. In the considered opinion of the Court, the Sessions
    Court will not be able to take cognizance on the police report in
    view of the specific bar contained in Section 26 of the Act. The
    same is the position with Section 26 of the Securities and
    Exchange Board of India Act, 1992.

    7.4 The law in this regard is well settled. Although the
    police has power to investigate the offence alleged against the
    applicants and if charge-sheet is filed, the Court will not be able

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    to take cognizance in view of the specific bar. The investigation
    carried out by the police can be used for the purpose of filing a
    complaint in writing before the appropriate court. To be precise,
    whatever materials have been collected by the Investigating
    Officer could be used by the authority for the purpose of filing a
    complaint before the competent court.

    7.5 Regarding the provisions under the Securities Contract
    (Regulation) Act
    , upon considering Section 26 of the Act, it is
    clear that the trial court cannot taken cognizance of the
    offenses based on a police report. Section 26 of the Act states:

    (1) No court shall take cognizance of any offense punishable
    under this Act, or any rules, regulations, or bye-laws made
    thereunder, except on a complaint made by the Central
    Government, the State Government, the Securities and
    Exchange Board of India, a recognized stock exchange, or any
    other authorized person. (2) No court inferior to that of a Court
    of Session shall try any offense punishable under this Act.

    7.6 In view of the above, a plain reading of Section 26 of
    the Act suggests that no court can take cognizance of any
    offense punishable under the Act except on a complaint made
    by the Central Government, the State Government, the
    Securities and Exchange Board of India, a recognized stock
    exchange, or any authorized person. Therefore, no case is made
    out under the provisions of the Securities Contract (Regulation)
    Act
    .

    8. Coming to the second contention, the Court is of the view

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    that even if the entire case put up by the prosecution is
    accepted as true, none of the ingredients to constitute the
    offence of criminal breach of trust or cheating are spelt out
    inasmuch as there is no direct evidence or material to suggest
    that there was any entrustment of property. The allegations in
    the complaint is of engaging in fraud and misconduct, but
    nowhere is it alleged that present applicants pocketed money by
    causing a loss to anyone or obtaining wrongful gain. Even if
    this fact is accepted, it constitutes merely a breach of the
    Securities Contract (Regulation) Act, which has been wrongly
    characterized as criminal breach of trust. Criminal breach of
    trust, as defined in Section 405 of the IPC, is as follows:

    “Whoever, being entrusted with property, or having
    dominion over property, dishonestly misappropriates
    or converts that property to their own use, or
    dishonestly uses or disposes of that property in
    violation of any direction of law prescribing the mode
    in which such trust is to be discharged, or of any legal
    contract, express or implied, which they have made
    concerning the discharge of such trust, or willfully
    allows any other person to do so, commits ‘criminal
    breach of trust.”

    8.1 In view of the above, it is clear that the applicants have
    neither caused any financial loss to anyone nor obtained any
    wrongful gain. The investigating agency has also failed to
    produce any concrete documents showing financial loss to
    anyone in support of his argument. Even when asked on what

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    grounds the criminal breach of trust is alleged to have been
    committed by the applicants, the respondent remained silent.
    Merely based on the complaint, a case under the provisions of
    criminal breach of trust was registered, but the investigating
    agency has not produced any evidence to support this
    assertion. Therefore, this does not constitute criminal breach of
    trust, and Section 406 of the IPC is not applicable.

    8.2 Further, it is trite that Sections 406 and 420 of the IPC
    cannot be run together. In this regard, the Court deems it
    proper to refer to the judgment passed by the Hon’ble Apex
    Court in the case of Delhi Race Club (1940) Ltd. vs State of
    Uttar Pradesh
    , passed in Criminal Appeal No. 3114 Of 2024,
    wherein the Court observed that criminal breach of trust under
    Section 406 of the Indian Penal Code (IPC) and cheating under
    Section 420 of the IPC are distinct offenses and cannot co-exist.
    The Court also observed that if the complainant had a claim for
    a specific amount, they should have filed a civil suit instead of
    filing a criminal complaint.

    8.3 Moreover, so far as offence under Section 420 of the
    IPC is concerned, it is appropriate to refer to the decision of the
    Hon’ble Apex Court in the case of Rekha Jain vs. The State
    of Karnataka & Anr.
    reported in 2022 LiveLaw (SC) 468,
    wherein the Hon’ble Supreme Court held that, to make out a
    case against a person for the offence under Section 420 of IPC,
    there must be a dishonest inducement to deceive a person to
    deliver any property to any other person.
    Further, in the case of
    Sarabjit Kaur vs. State of Punjab & Anr. reported in

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    (2023)5 SCC 360 has held in paragraph No.13 as follows:

    “13. A breach of contract does not give rise to criminal
    prosecution for cheating unless fraudulent or dishonest
    intention is shown right at the beginning of the
    transaction. Merely on the allegation of failure to keep
    up promise will not be enough to initiate criminal
    proceedings. From the facts available on record, it is
    evident that the respondent No.2 had improved his
    case ever since the first complaint was filed in which
    there were no allegations against the appellant rather
    it was only against the property dealers which was in
    subsequent complaints that the name of the appellant
    was mentioned. On the first complaint, the only request
    was for return of the amount paid by the respondent
    No.2. When the offence was made out on the basis of
    the first complaint, the second complaint was filed with
    improved version making allegations against the
    appellant as well which was not there in the earlier
    complaint. The entire idea seems to be to convert a civil
    dispute into criminal and put pressure on the appellant
    for return of the amount allegedly paid. The criminal
    Courts are not meant to be used for settling scores or
    pressurize parties to settle civil disputes. Wherever
    ingredients of criminal offences are made out, criminal
    courts have to take cognizance. The complaint in
    question on the basis of which F.I.R. was registered
    was filed nearly three years after the last date fixed for
    registration of the sale deed. Allowing the proceedings

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    to continue would be an abuse of process of the Court.”

    9. In the case of State of Haryana v. Bhajan Lal, reported in
    1992 Supp (1) SCC 335, the Apex Court has set out the
    categories of cases in which the inherent power under Section
    482
    CrPC can be exercised and held in para 102 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 Art. 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 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

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    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 noncognizable
    offence, no investigation is permitted by a police officer
    without an order of a Magistrate as contemplated under
    sec. 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 an ulterior motive for
    wreaking vengeance on the accused and with a view to
    spite him due to private and personal grudge.”

    9.1 For the aforesaid discussion, and in view of the settled legal
    position, the Court is of the opinion that the case on hand clearly

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    falls within some of the parameters laid down in the aforesaid
    decision, which would required indulgence of this Court.

    10. In the result, the present application succeeds and is
    allowed in part. The impugned FIR being C.R. No.
    11206075220452 of 2022 registered with Visnagar Town Police
    Station, District Mehsana, for the offences punishable under
    Sections 406 and 420 of the Indian Penal Code and Sections 13,
    14, 19 and 23(1)(b), (c), (d), (e), (f), (g) and (i) of the Securities
    Contracts (Regulation) Act, 1956
    is only hereby quashed and set
    aside qua the present applicants, along with all consequential
    proceedings arising therefrom. Rule is made absolute accordingly.

    11. It is made clear that, insofar as the remaining offences, the
    investigating agency may proceed with the investigation and file
    the charge-sheet in accordance with law.

    12. It is clarified that it shall be open for the authority concerned
    to initiate appropriate proceedings afresh against the writ
    applicants herein, in accordance with law.

    (P. M. RAVAL, J)
    MOHD SAIF ULLAH

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