Petition to quash a complaint and charge-sheet alleging cheating and criminal breach of trust over money transferred for a purported surgery. The court held the complaint disclosed offences under Sections 420 and 406 IPC and declined to quash, dismissing the petition.
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GAHC010055542021
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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./204/2021
SWATI BIDHAN BARUAH
D/O SUPTI RANJAN BARUAH, R/O PANDU BBC COLONY, RLY QUARTER NO 31/B, P.O.-PANDU, P.S.-JALUKBARI, DIST-KAMRUP(M), PIN-781012
VERSUS
THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:SURESH KUMAR EKKA PERMANENT ADD- MAHARATPUR TALUKA- SEETAPUR DIST- SARGUNA STATE- CHATTISGARH PRESENT ADD- BHUJ AIR FORCE STATION BLOCK NO. TV/21 (2254) DIST- KUTCH STATE- GUJARA
Advocate for the Petitioner : MS. N MODI, MR A K AZAD,MR I AHMED,MS D K DOLEY,MR. S N KRISHNATRAYA
Advocate for the Respondent : PP, ASSAM, MS. M K BROWN, AMICUS CURIAE (R-2)
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BEFORE HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
ORDER
Date : 12.03.2026
Heard Ms. J. Kothari, learned Senior counsel assisted by Mr. I. Ahmed, learned counsel for the petitioner. Also heard Mr. R. G. Baruah, learned Additional Public Prosecutor appearing for the State of Assam and Ms. M.K. Brown, learned Amicus Curiae for the respondent No.2.
2. By this application the petitioner has prayed for quashing of the complaint the charge-sheet and a criminal proceeding pending before the learned Chief Judicial Magistrate, Kamrup (Metro).
3. The complaint dated 14.03.2013 inter-alia reveals that the complainant was of 28 years at that juncture and was working in the Air Force and residing at Bhuj, Kutch and stated that he came in contact with one Sagarika Baruah and by exchange of words and chatting by messages he developed a relationship with her and during the said relationship he came to know that her brother is ill and that she needed financial assistance. He further stated that as asked by said Sagarika Baruah he transferred an amount of Rs.2,00,000/- (Rupees two lakhs) only on 28.09.2011 in her account No. being 200081920200 at Guwahati in SBI Bank opened in the name of Bidhan Baruah opened by Sagarika Baruah. Thereafter, on being asked by Sagarika again he deposited another amount of Rs.90,000/- (Rupees Ninety thousand) only on 17.10.2011 and thus he submits that he had transferred an amount of Rs.2,90,000/- (Rupees Two lakhs Ninety thousand) only. The informant further stated that when he enquired from the
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Mumbai doctor about the surgery of the brother of Sagarika, he was informed that no surgery was performed and then he wanted to meet Sagarika but she did not meet him. Thereafter he spoke to the father of Bidhan Baruah in whose name/account he deposited the money and he came to know that the father of Bidhan Baruah has two children, one is Vikram and the other is Bidhan. It is also alleged in the complaint that when he asked Bidhan Baruah to returned back the money, said Bidhan Baruah returned an amount of Rs.49, 000/- (Rupees Forty Nine thousand) only to him and that Rs.2,41,000/- (Rupees Two lakhs Forty One thousand) only was yet to be returned.
4. The learned counsel for the petitioner submits that the case was lodged in the State of Gujrat and the petitioner by filing a transfer petition got the case transferred to the State of Assam. She further submits that the respondent was well aware of the fact that Sagarika Baruah is Bidhan Baruah, who had undergone a surgery in Mumbai as is well known to all and that the respondent No.2 only to harass the petitioner had put up a concocted story and had lodged the complaint. She further submits that Section 420 IPC is not attracted in the instant case. She has placed Section 420 of IPC which is quoted as under:-
“420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
5. She submits that the basic requirements to attract Section 420 of IPC is the intention of the accused person to cheat the victim from the very inception. She
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submits that the prior intention from the very inception is absent in the facts of the instant case, in view of the fact that the petitioner had taken money from the informant for surgery and the surgery was in fact done which is known to all sundry. Later on, some amount of the money could not be paid by the petitioner to respondent No.2 cannot amount to an offence of cheating. To substantiate her argument, she placed the Judgment passed by the Supreme Court in Vir Prakash Sharma Vs Anil Kumar Agarwal reported in 2007 (7) SCC 373 , wherein the ingredients of Section 420 of IPC has been culled out. The ingredients of Section 420 of IPC are as follows:
i) Deception of any persons;
ii) Fraudulently or dishonestly inducing any person to deliver any property; or
iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
6. The Supreme Court had further held in the said Judgment that to hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. She also submits that the respondent No.2 after lodging of the complaint has not appeared before any authority although summons were issued by the Court of Chief Judicial Magistrate, Kamrup (Metro).
7. Mr. R. G. Baruah, learned Additional Public Prosecutor appearing for the State of Assam however submits that the ingredients of Section 420 of IPC are well attracted in the instant case inasmuch as to deceive the informant, the
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petitioner had projected an incorrect story that her brother is sick and that she needs money for that.
8. This itself shows that the petitioner has prior intention to deceive the informant and by deception she forced the complainant to part with his money to her and thereafter she neither met him nor gave the full money back.
9. Ms. M.K. Brown, learned Amicus Curiae for the respondent No.2 however stated that a bare reading of the FIR itself shows the timeline of events that had taken place. She further submitted that money was in fact given by the informant to the petitioner and that the account Nos. of both the parties are mentioned in the FIR and that some part of the money was returned and the rest were not returned.
10. She further submitted that the submissions of the learned counsel for the petitioner that respondent No.2 was aware of the gender identity of the petitioner and that the petitioner has annexed Air Travel booking and few articles published in newspaper, however the booking does not reflect who had actually booked the tickets and the same is a matter of trial and also that the articles published were all dated between April to May, 2012, which was much after the amount was given to the petitioner. She also submits that it is not possible for the respondent to go through all the articles that are being published.
11. On the submissions made by the petitioner that the complainant had never appeared before the Trial Court and the said respondent should be declared as an absconder, she submits that the proceedings were stayed before both the Supreme Court as well as the Gauhati High Court since 2018 and that it cannot
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lead to a conclusion that the complainant did not wanted to pursue the case. She also submitted that quashing of the FIR cannot be on grounds of unexplained delay in filing the FIR and that in the instant case it is only after the respondent had enquired about the health status of the brother of Sagarika Baruah that he came to know about the real facts and then he lodged the complaint.
12. I have gone through the materials on record and I have heard the counsels at length. It is no res-integra that a High Court can exercise the power under its inherent jurisdiction and quash the FIR or the complaint only on finding that the same does not disclose a cognizable offence.
13. In the instant case, it is seen that the respondent No.2 has categorically mentioned in the complaint that he got into a love relationship with one Sagarika Baruah and during the said relationship with Sagarika Baruah had asked for money from him for the medical treatment of her brother and gave the account number of one Bidhan Baruah in whose account the respondent No. 2 had transferred the money from his account to the tune of Rs.2,00,000/(Rupees Two lakhs) only. It is as such clear that the respondent No. 2 was not aware that Sagarika Baruah is Bidhan Baruah. It is only when he came to enquire about the surgery being conducted on Bidhan Baruah, he was appraised by the father of Bidhan Baruah that he has only two sons and Bidhan Baruah is one of them. Then he asked for his money back from Bidhan Baruah and only a small part of the amount given was returned to him. Nowhere in the complaint it could be deduced that respondent No.2 was aware that Sagarika Baruah is Bidhan Baruah and that Bidhan Baruah had undergone a surgery at Mumbai.
14. In the above facts it is as such clear that the ingredients of cheating are
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well meted out inasmuch as before the surgery Bidhan Baruah, who was a male person, was having a relationship with respondent No.2 and that he requested respondent No.2 to give him money for his brother’s surgery. Whereas Bidhan Baruah himself underwent a surgery and when respondent No.2 asked for his money back, he gave a part of it and did not return the rest. So, the initial deceptions for parting of money as well as non return of money are all present in the said case, which attracts Section 420 of the IPC.
15. Further apart from Section 420 of IPC the said complaint has also been registered under Section 406 of the IPC. The ingredients of Section 406 IPC is also attracted in the instant case.
16. Section 406 of IPC provides that whoever commits criminal breach of trust shall be punished with imprisonment prescribed there under and as per Section 405 of IPC which defines criminal breach of trust it is provided that whoever is entrusted with the property dishonestly misappropriates or converts to its own use commits criminal breach of trust.
17. In the instant case, it is an admitted position that the petitioner had taken an amount of Rs.2,90,000/- (Rupees Two lakhs Ninety thousand) only from respondent No.2 out of which only Rs.49,000/- (Rupees Forty Nine Thousand) only was paid back and the remaining amount was never paid to the respondent No.2.
18. In view of the same, this Court does not deem it fit to quash the FIR or the criminal proceeding instituted thereafter. However, it is directed that the above findings may not be considered during the trial of the instant case. Further it is also directed that if respondent No.2 does not appear before the Trial Court on
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dates being fixed, the Trial Court may take recourse to Section 256 of the Cr.P.C, which is now Section 279 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
19. The petition is as such dismissed and disposed of.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the complaint, charge-sheet and criminal proceeding under Sections 420 and 406 IPC should be quashed as not disclosing a cognizable offence.
Whether the ingredients of cheating under Section 420 IPC were made out on the complaint's allegations.
Colour shows how this judgement treated each authority
Vir Prakash Sharma Vs Anil Kumar AgarwalReferred¶6
2007 (7) SCC 373 · Who else cites this
5 provisions across 3 enactments
Swati Bidhan Baruah
The State of Assam represented by the Public Prosecutor
Suresh Kumar Ekka
Shamima Jahan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
