Decisions On Forum Shopping 1715190930

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 463 OF 2022

(arising out of S.L.P (Crl.) No. 10951 OF 2019)
VIJAY KUMAR GHAI & ORS. … APPELLANT(S)
VERSUS
THE STATE OF WEST BENGAL & ORS. … RESPONDENT(S)
JUDGMENT
KRISHNA MURARI, J.
Leave granted.
2. This appeal is directed against the judgment and order dated
01.10.2019 passed by the High Court of Calcutta (hereinafter referred to as
“High Court”) in C.R.R No. 731 of 2017 filed by the appellants praying for
quashing of proceedings being G.R. Case No. 1221 of 2013 pending before
the Court of Learned Chief Metropolitan Magistrate, Kolkata and arising out of
Bowbazar Police Station Case No. 168 dated 28.03.2013 under Sections 420,
406 and 120B of the Indian Penal Code, 1860 (hereinafter referred to as
Signature Not Verified
“IPC”).
Digitally signed by
SATISH KUMAR YADAV
Date: 2022.03.22
By the said judgment, the High Court dismissed the prayer for
17:11:34 IST
Reason:
1
quashing of the proceedings and held that continuance of criminal
proceedings against the present appellant/accused would not be an abuse of
the process of the court.
3. Brief facts necessary for the disposal of this appeal are as under:
3.1 M/s. Priknit Retails Limited a public limited company having its
registered office at BXXV, 539A, 10, Jalandhar, Bye Pass Road, Ludhiana,
Punjab was incorporated in the year 2002 and subsequently changed its
name to Priknit Apparels in 2007. The company is engaged in the
manufacture and trade of apparels through chain of retail stores under the
brand name and style of Priknit. Appellant No. 1 is the Managing Director of
the Company and Appellant Nos. 2 and 3 are the Directors of the said
Company. The company has been arrayed as proforma Respondent No. 3.
3.2 In January 2008, Respondent No. 2 an authorized representative of
SMC Global Securities Ltd, Delhi desired to make an investment on its behalf
with the appellants. It was mutually decided between the parties that
Respondent No. 2 will invest an amount of Rs. 2.5 crore with the company in
lieu of which they will be issued 2,50,000 equity shares of Priknit Apparel Pvt.
Ltd. Subsequently, Respondent No. 2 filed their share application form along
with the cheque of Rs. 2.5 crore.
2
3.3 Subsequently, an allotment letter dated 29.03.2008 was issued in favour
of Respondent No. 2 whereby 2,50,000 shares were issued in lieu of the
investment made by him. The proforma respondent no. 3 company and
Respondent No. 2 arrived at an understanding, regarding the investment
made by Respondent No. 2.
3.4 Having failed to bring the I.P.O as per memorandum of understanding
dated 20.08.2009, Respondent No. 2 issued a legal notice dated 06.12.2011
to the Appellants, who duly replied to the legal notice denying all the
allegations contained in the legal notice.
3.5 That on 06.01.2012, Respondent No. 2 filed a police complaint with PS
Rajender Nagar, New Delhi and the concerned officer of PS Rajender Nagar
apprised Respondent No. 2 that the complaint does not pertain to their
jurisdiction and therefore the same ought to be transferred. On 11.04.2012,
Respondent No. 2 filed a complaint with the Economic Offences Wing
(hereinafter referred to as “EOW”) and the said complaint was transferred to
PS Darya Ganj, New Delhi.
3.6 That on 06.06.2012, Respondent No. 2 filed a complaint being CC No.
306/1/12 under Section 156(3) of Cr.P.C before the Tiz Hazari Court, New
Delhi for registration of FIR against the Appellants and their company. On
01.09.2012, Respondent No. 2 also filed another Complaint No. 190 of 12
3
before Tis Hazari Court, New Delhi under Section 68 of the Companies Act
read with Section 200 of Cr.P.C which is pending adjudication.
3.7 That the Metropolitan Magistrate (hereinafter referred to as “MM”), Tis
Hazari vide order dated 28.02.2013 observed that the entire dispute raised by
Respondent No. 2 was civil in nature and there was no criminality involved,
thereby turning down the prayer of Respondent No. 2 for registration of an FIR
and posted the case for pre-summoning evidence with regard to the
application under Section 156(3) Cr.P.C filed by Respondent No.2. It is
pertinent to mention here that the order of the MM, Tis Hazari Court, New
Delhi attained finality as it was not put to further challenge.
3.8 That on 28.03.2013, Respondent No. 2 filed a second complaint under
Section 406, 409, 420, 468,120B and 34 IPC on the basis of the same cause
of action with the PS Bowbazar at Kolkata, West Bengal and the same was
converted into an FIR bearing No. 168 under Section 406, 420, 120B IPC. A
final closure report dated 04.03.2014 was filed by the concerned Police
Station recommending closure of the case since the entire dispute was found
to be civil in nature.
3.9 That Respondent No. 2 filed a protest petition being GR No. 1221/2013
with the Chief Metropolitan Magistrate (hereinafter referred to as “CMM”),
Kolkata against closure report dated 04.03.2014 and vide order dated
4
08.03.2016, the CJM allowed the protest petition and directed for further
investigation.
3.10 In the meantime, the authorized representative of Respondent No. 2
made a statement before the MM, Tish Hazari, New Delhi for withdrawing the
complaint case.
3.11 Appellant No. 1 received a notice dated 14.11.2016 under Section 41(a)
Cr.P.C for appearance before the Investigation Officer (hereinafter referred to
as “IO”) at PS Bowbazar, Kolkata. In his reply to the said notice, Appellant
No. 1 stated that a complaint has already been filed with the same cause of
action before the Tis Hazari Court and further sought time to produce the
documents sought in the notice. Thereafter, Appellant No. 1 sent a letter with
all the relevant documents required for investigation thereby extending full co-
operation to the IO at PS Bowbazar, Kolkata in connection with Case No. 168.
The IO PS Bowbazar, Kolkata sent another notice under Section 41(a) Cr.P.C
dated 23.12.2016 to Appellant No. 1 and 2 to appear before him with the
relevant documents.
3.12 That vide order dated 14.02.2017, the CMM, Calcutta took cognizance
of the offence under Section 406, 420, 120B IPC in connection with Case No.
168 dated 28.03.2013 corresponding to GR Case No. 1221 of 2013 i.e.,
protest petition.
5
3.13 Being aggrieved, Appellants herein filed a quashing petition being CRR
No. 731 of 2017 under Section 482 Cr.P.C seeking quashing of FIR No. 168
dated 28.03.2013 and also impugned the proceedings in GR Case No. 1221
of 2013 by invoking Sections 401 and 482 Cr.P.C.
3.14 That the High Court vide order dated 06.03.2017 issued notice to the
Respondents and stayed further proceeding of criminal case. Respondent No.
2 filed an application for vacation of the stay order granted by the High Court
but the same was dismissed vide order dated 24.03.2017 while observing that
Respondent No. 2 had also filed a complaint at Delhi on the same allegations,
thus the proceedings at Calcutta were intended to harass the Appellants.
3.15 However, the High Court vide impugned judgment and order dated
01.10.2019 dismissed the quashing as well as the revision petition filed by the
Appellants and observed that in order to exercise the power under Section
482 Cr.P.C, the only requirement is to see whether continuance of the criminal
proceedings would be a total abuse of the process of the court and the
continuance of the criminal proceedings against the appellants is in no way an
abuse of the process of the court. The operative portion of the aforesaid
judgment reads as under: -
“In the present case, the allegation in the FIR disclosed the
offences alleged. Moreover, the allegations made in the FIR
disclosed that the petitioner induced the complainant to
purchase share or invest money by willful misrepresentation.
6
It is true that the complaint discloses that there was a
commercial transaction between the parties but at the same
time, it cannot be overlooked that the averments made in the
complaint/FIR prima facie revel the commission of a
cognizable offence.
Moreover, when the complaint discloses that the commercial

transaction between involve criminal offences, then the
question of quashing the complaint cannot be allowed.”
Contentions on behalf of Appellants
4. Ms. Menaka Guruswamy, learned senior advocate appearing on behalf
of the appellants has vehemently submitted that Respondent No.2 indulged in
the practice of forum shopping by filing 2 complaints i.e., a complaint u/s
156(3) Cr.P.C before the Tis Hazari Court, New Delhi on 06.06.2012 and a
complaint which was eventually registered as FIR No. 168 u/s 406, 420, 120B
IPC before PS Bowbazar, Calcutta on 28.03.2013. FIR in connection with PS
Bowbazar, Calcutta was lodged during the pendency of the complaint case at
Tis Hazari Court, New Delhi and the said fact was cleverly supressed by
Respondent No. 2.
4.1 It was further submitted that initially police submitted a closure report.
However, Respondent No. 2 filed an application under Section 173(8) of
Cr.P.C for further investigation which was allowed and after further
investigation, charge sheet was filed against the Appellants herein.
7
4.2 It was vehemently submitted that the complaint filed in PS Bowbazar
was the exact reproduction of the complaint filed in New Delhi with the only
difference being the place of occurrence. In the complaint lodged at Delhi, the
place of occurrence was shown to be the office at New Delhi and in
subsequent complaint at Calcutta, the place of occurrence was changed to its
office at Calcutta.
4.3 It was further submitted that the allegations contained in the FIR are
purely contractual disputes of civil nature but Respondent No. 2 has given a
criminal colour to it and that breach of contract does not come within the
purview of cheating as defined in IPC. In addition to it, it was submitted that
the transaction in question between the parties as revealed from the F.I.R was
purely a sale transaction or what may be called as a commercial transaction,
therefore the question of cheating does not arise at all.
4.4 It was further submitted that there are no allegations in the complaint
filed by the Respondent No. 2 about the Appellants having fraudulent or
dishonest intentions at the time of making the representation.
4.5 It was also further submitted that the High Court failed to appreciate that
the two allegations recorded in the complaint against the Appellants being
belated allotment of shares to the complainant company and the Appellant No.
8
1’s failure to bring out an IPO are clearly commercial disputes with no element
of criminality.
4.6 It was further submitted that the High Court failed to appreciate that a
mere failure to keep a promise does not create any presumption of a
dishonest intention amounting to a criminal breach of trust under Section 409
IPC or cheating under Section 420 IPC.
4.7 Heavy reliance was placed on the decisions of this Court in V.Y.Jose &
Anr. Vs. State of Gujarat & Anr.1, Murari Lal Gupta Vs. Gopi Singh2; K.
Jayaram and Ors. Vs. Bangalore Development Authority & Ors. 3; Union
of India and Ors. Vs. Shantiranjan Sarkar4.
Contentions on behalf of Respondents
5. Mrs. Anjana Prakash, learned senior advocate appearing on behalf of
the Respondents has vehemently submitted that the allegations contained in
the complaint disclosed all the ingredients of the alleged offences and
moreover, the criminal proceedings have not been initiated with mala fide
intention and that the complaint case filed before the magistrate of Tis Hazari
Court was not decided on merit and as such the complainant cannot be barred
from making a fresh complaint.
1 (2009) 3 SCC 78
2 (2005) 13 SCC 699
3 2021 SCC OnLine SC 1194
4 (2009) 3 SCC 90
9
5.1 It was further submitted that the complaint at Kolkata had been filed
only after the prayer u/s 156(3) Cr.P.C was rejected by the Delhi Court on
28.02.2013 in order to avail legal remedies available and when the Calcutta
Court on 08.03.2016 allowed further investigation, the Respondent in order to
avoid multiplicity of proceedings, withdrew the complaint in Delhi on
09.09.2016.
5.2 It was further submitted that it is an established proposition of law that
two complaints can co-exist simultaneously if the scope of two complaints are
different. Reliance in support of the contention was placed on the judgment
of this Court in K. Jagadish Vs. Udaya Kumar G.S. & Anr. 5, wherein it was
reiterated that two remedies ie. civil and criminal are not mutually exclusive
but can co-exist since they essentially differ in their context and consequence.
5.3 It was also submitted that the established principle of quashing is that at
the stage of cognizance all that a Court is required to see if prima facie an
offence is made out and courts should restrain itself from throttling legitimate
prosecutions at the threshold and the law should be allowed to take its course.
Substantiating the same, it was submitted that the complainant has made a
specific allegation that on inducement of the accused persons, he had parted
with 2.50 crore on a false promise that they would be allotted shares in the
company. On 29.02.2008, a false statement was made by the accused
persons that the complainant had been allotted the shares, whereas it
5 (2020) 14 SCC 552
10
transpired that the resolution about the allotment of shares was taken only on
23.03.2009 that is one year later.
5.4 Strong reliance was placed on the decisions of this Court in V. Ravi
Kumar Vs. State and Ors.6; Indian Oil Corporation Vs. NEPC India Ltd. &
Ors.7; A.V. Mohan Rao & Anr. Vs. M Kishan Rao & Anr. 8; K. Jagadish
(Supra).
6. We have carefully considered the submissions made at the Bar and
perused the materials placed on record.
7. Predominantly, the Indian Judiciary has time and again reiterated that
forum shopping take several hues and shades but the concept of ‘forum
shopping’ has not been rendered an exclusive definition in any Indian statute.
Forum shopping as per Merriam Webster dictionary is:-
“The practice of choosing the court in which to bring an action

from among those courts that could properly exercise
jurisdiction based on determination of which court is likely to
provide the most favourable outcome”
8. The Indian judiciary’s observation and obiter dicta has aided in
streamlining the concept of forum shopping in the Indian legal system. This
Court has condemned the practice of forum shopping by litigants and termed it
6 (2019) 14 SCC 568

7 (2006) 6 SCC 736
8 (2002) 6 SCC 174
11
as an abuse of law and also deciphered different categories of forum
shopping.
9. A two-Judge bench of this Court in Union of India & Ors. Vs. Cipla
Ltd. & Anr.9 has laid down factors which lead to the practice of forum
shopping or choice of forum by the litigants which are as follows:-
“148. A classic example of forum shopping is when litigant

approaches one Court for relief but does not get the desired
relief and then approaches another Court for the same
relief. This occurred in Rajiv Bhatia Vs. Govt. of NCT of
Delhi and Others10. The respondent-mother of a young
child had filed a petition for a writ of habeas corpus in the
Rajasthan High Court and apparently did not get the
required relief from that Court. She then filed a petition in
the Delhi High Court also for a writ of habeas corpus and
obtained the necessary relief. Notwithstanding this, this
Court did not interfere with the order passed by the Delhi
High Court for the reason that this Court ascertained the
views of the child and found that she did not want to even
talk to her adoptive parents and therefore the custody of the
child granted by the Delhi High Court to the respondent-
mother was not interfered with. The decision of this Court is
on its own facts, even though it is a classic case of forum
shopping.
149. In Arathi Bandi v. Bandi Jagadrakshaka Rao &

Ors.11this Court noted that jurisdiction in a Court is not
attracted by the operation or creation of fortuitous
circumstances. In that case, circumstances were created by
one of the parties to the dispute to confer jurisdiction on a
particular High Court. This was frowned upon by this Court
by observing that to allow the assumption of jurisdiction in
created circumstances would only result in encouraging
forum shopping.
150. Another case of creating circumstances for the

purposes of forum shopping was World Tanker Carrier
9 (2017) 5 SCC 262
10 (1999) 8 SCC 525
11 (2013) 15 SCC 790
12
Corporation v. SNP Shipping Services Pvt. Ltd. and
others12 wherein it was observed that the
respondent/plaintiff had made a deliberate attempt to bring
the cause of action namely a collision between two vessels
on the high seas within the jurisdiction of the Bombay High
Court. Bringing one of the vessels to Bombay in order to
confer jurisdiction on the Bombay High Court had the
character of forum shopping rather than anything else.
151. Another form of forum shopping is taking advantage

of a view held by a particular High Court in contrast to a
different view held by another High Court. In Ambica
Industries v. Commissioner of Central Excise (2007) 6 SCC
769 the assesse was from Lucknow. It challenged an order
passed by the Customs, Excise and Service Tax Appellate
Tribunal (the CESTAT) located in Delhi before the Delhi
High Court. The CESTAT had jurisdiction over the States of
Uttar Pradesh, NCT of Delhi and Maharashtra. The Delhi
High Court did not entertain the proceedings initiated by the
assessee for want of territorial jurisdiction. Dismissing the
assessee’s appeal this Court gave the example of an
assessee affected by an assessment order in Bombay
invoking the jurisdiction of the Delhi High Court to take
advantage of the law laid down by the Delhi High Court or
an assessee affected by an order of assessment made at
Bombay invoking the jurisdiction of the Allahabad High
Court to take advantage of the law laid down by it and
consequently evade the law laid down by the Bombay High
Court. It was said that this could not be allowed and
circumstances such as this would lead to some sort of
judicial anarchy.
155. The decisions referred to clearly lay down the

principle that the court is required to adopt a functional test
vis-à-vis the litigation and the litigant. What has to be seen
is whether there is any functional similarity in the
proceedings between one court and another or whether
there is some sort of subterfuge on the part of a litigant. It is
this functional test that will determine whether a litigant is
indulging in forum shopping or not.”
12 (1998) 5 SCC 310
13
10. Forum shopping has been termed as disreputable practice by the courts
and has no sanction and paramountcy in law. In spite of this Court
condemning the practice of forum shopping, Respondent No. 2 filed two
complaints i.e., a complaint u/s 156(3) Cr.P.C before the Tis Hazari Court,
New Delhi on 06.06.2012 and a complaint which was eventually registered as
FIR No. 168 u/s 406, 420, 120B IPC before PS Bowbazar, Calcutta on
28.03.2013. ie., one in Delhi and one complaint in Kolkata. The Complaint
filed in Kolkata was a reproduction of the complaint filed in Delhi except with
the change of place occurrence in order to create a jurisdiction.
11. A two-Judge bench of this Court in Krishna Lal Chawla & Ors. Vs.
State of U.P. & Anr.13 observed that multiple complaints by the same party
against the same accused in respect of the same incident is impermissible. It
held that Permitting multiple complaints by the same party in respect of the
same incident, whether it involves a cognizable or private complaint offence,
will lead to the accused being entangled in numerous criminal proceedings. As
such he would be forced to keep surrendering his liberty and precious time
before the police and the courts, as and when required in each case.
12. The legality of the second FIR was extensively discussed by this Court
in T.T. Antony Vs. State of Kerala & Ors.14. It was held that there can be no
second FIR where the information concerns the same cognisable offence
13 (2021) 5 SCC 435

14 (2001) 6 SCC 181
14
alleged in the first FIR or the same occurrence or incident which gives rise to
one or more cognizable offences. It was further held that once an FIR
postulated by the provisions of Section 154 of Cr.P.C has been recorded, any
information received after the commencement of investigation cannot form the
basis of a second FIR as doing so would fail to comport with the scheme of
the Cr.P.C. The Court further held that barring situations in which a counter-
case is filed, a fresh investigation or a second FIR on the basis of the same or
connected cognizable offence would constitute an "abuse of the statutory
power of investigation" and may be a fit case for the exercise of power either
under Section 482 of Cr.P.C or Articles 226/227 of the Constitution of India
13. A two-Judge bench of this Court in K. Jayaram and Ors. Vs.
Bangalore Development Authority & Ors.15 observed:
“16. It is necessary for us to state here that in order to

check multiplicity of proceedings pertaining to the same
subject-matter and more importantly to stop the menace of
soliciting inconsistent orders through different judicial
forums by suppressing material facts either by remaining
silent or by making misleading statements in the pleadings
in order to escape the liability of making a false statement,
we are of the view that the parties have to disclose the
details of all legal proceedings and litigations either past or
present concerning any part of the subject-matter of
dispute which is within their knowledge. In case, according
to the parties to the dispute, no legal proceedings or court
litigations was or is pending, they have to mandatorily
state so in their pleadings in order to resolve the dispute
between the parties in accordance with law.”
15 2021 SCC OnLine SC 1194
15
14. The genesis of the present appeal originates from the impugned order
pronounced by the High Court whereby the High Court dismissed the
application filed under Section 482 as well as 401 Cr.P.C. Taking that into
concern, it is necessary to advert to the principles settled by judicial
pronouncements laying down the circumstances under which High Court can
exercise its inherent powers under Section 482 Cr.P.C.
15. This Court in the widely celebrated judgment of State of Haryana &
Ors. Vs. Bhajan Lal & Ors.16 considered in detail the scope of the High Court
powers under Section 482 Cr.P.C. and/or Article 226 of the Constitution of
India to quash the FIR and referred to several judicial precedents and held
that the High Court should not embark upon an inquiry into the merits and
demerits of the allegations and quash the proceedings without allowing the
investigating agency to complete its task. At the same time, this Court
identified the following cases in which FIR/complaint can be quashed:
“102. (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 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
16 1992 Supp (1) SCC 335
16
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 the
accused.
(6) Where there is an express legal bar engrafted in any of

the provisions of the Code or the Act concerned (under
which a criminal proceeding is instituted) to the institution
and continuance of the 21 proceedings and/or where there
is a specific provision in the Code or the Act concerned,
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.”
16. This Court in R.P. Kapur Vs. State of Punjab17 summarized categories
of cases where inherent power can and should be exercised to quash the
proceedings:-
(i) Where it manifestly appears that there is a legal bar against the
institution or continuance e.g. want of sanction;
17 (1960) 3 SCR 388
17
(ii) Where the allegations in the first information report or complaint
taken at its face value and accepted in their entirety do not
constitute the offence alleged;
(iii) Where the allegations constitute an offence, but there is no legal
evidence adduced or the evidence adduced clearly or
manifestly fails to prove the charge.
17. This Court in Inder Mohan Goswami & Anr. Vs. State of Uttaranchal
& Ors.18 observed:-
“27. The powers possessed by the High Court

under Section 482 of the Code are very wide and the very
plenitude of the power requires great caution in its
exercise. The court must be careful to see that its decision
in exercise of this power is based on sound principles. The
inherent power should not be exercised to stifle a
legitimate prosecution. The High Court should normally
refrain from giving a prima facie decision in a case where
all the facts are incomplete and hazy; more so, when the
evidence has not been collected and produced before the
court and the issues involved, whether factual or legal, are
of such magnitude that they cannot be seen in their true
perspective without sufficient material. Of course, no hard
and fast rule can be laid down in regard to cases in which
the High Court will exercise its extraordinary jurisdiction of
quashing the proceedings at any stage”
18. In Indian Oil Corpn. v NEPC India Ltd. & Ors. 19, a two-judge Bench of
this Court reviewed the precedents on the exercise of jurisdiction under
18 (2007) 12 SCC 1
19 (2006) 6 SCC 736
18
Section 482 of the Code of Criminal Procedure 1973 and formulated guiding
principles in the following terms:
“12. … (i) A complaint can be quashed where the

allegations made in 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 the case alleged
against the accused. For this purpose, the complaint has to
be examined as a whole, but without examining the merits
of the allegations. Neither a detailed inquiry nor a
meticulous analysis of the material nor an assessment of
the reliability or genuineness of the allegations in the
complaint, is warranted while examining prayer for
quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear

abuse of the process of the court, as when the criminal
proceeding is found to have been initiated with mala
fides/malice for wreaking vengeance or to cause harm, or
where the allegations are absurd and inherently
improbable.
(iii) The power to quash shall not, however, be used to stifle

or scuttle a legitimate prosecution. The power should be
used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the

legal ingredients of the offence alleged. If the necessary
factual foundation is laid in the complaint, merely on the
ground that a few ingredients have not been stated in detail,
the proceedings should not be quashed. Quashing of the
complaint is warranted only where the complaint is so bereft
of even the basic facts which are absolutely necessary for
making out the offence.
(v) ..”
19
19. A two-Judge Bench of this Court in State of Madhya Pradesh Vs.
Awadh Kishore Gupta & Ors.20 made the following observation :-
“11. The powers possessed by the High Court

under Section 482 of the Code are very wide and the very
plenitude of the power requires great caution in its
exercise. Court must be careful to see that its decision in
exercise of this power is based on sound principles. The
inherent power should not be exercised to stifle a legitimate
prosecution. High Court being the highest Court of a State
should normally refrain from giving a prima facie decision in
a case where the entire facts are incomplete and hazy,
more so when the evidence has not been collected and
produced before the Court and the issues involved,
whether factual or legal, are of magnitude and cannot be
seen in their true perspective without sufficient material. Of
course, no hard and fast rule can be laid down in regard to
cases in which the High Court will exercise its extraordinary
jurisdiction of quashing the proceeding at any stage.
In proceeding instituted on complaint, exercise of the

inherent powers to quash the proceedings is called for only
in a case where the complaint does not disclose any
offence or is frivolous, vexatious or oppressive. If the
allegations set out in the complaint do not constitute the
offence of which cognizance has been taken by the
Magistrate, it is open to the High Court to quash the same
in exercise of the inherent powers under Section 482 of the
Code.”
20. This Court in G. Sagar Suri & Anr. Vs. State of UP & Ors. 21 observed
that it is the duty and obligation of the criminal court to exercise a great deal of
caution in issuing the process, particularly when matters are essentially of civil
nature.
20 (2004) 1 SCC 691

21 (2000) 2 SCC 636
20
21. This Court has time and again cautioned about converting purely civil
disputes into criminal cases. This Court in Indian Oil Corporation (Supra)
noticed the prevalent impression that civil law remedies are time consuming
and do not adequately protect the interests of lenders/creditors. The Court
further observed that:-
“13. …any effort to settle civil disputes and claims, which

do not involve any criminal offence, by applying pressure
through criminal prosecution should be deprecated and
discouraged.”
22. At the outset, Respondent No. 2/Complainant alleged that the
Appellants were responsible for the offence punishable under Section 420,
405, 406, 120B IPC. Therefore, it is also imperative to examine the ingredients
of the said offences and whether the allegations made in the complaint, read
on their face, attract those offences under the Penal Code.
23. Section 405 of IPC defines Criminal Breach of Trust which reads as
under: -
“405. Criminal breach of trust.—Whoever, being in any

manner entrusted with property, or with any dominion
over property, dishonestly misappropriates or converts to
his own use that property, 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 he has made touching the discharge of such trust,
or wilfully suffers any other person so to do, commits
“criminal breach of trust”.
21
The essential ingredients of the offense of criminal breach of
trust are:-
(1) The accused must be entrusted with the property or with

dominion over it,
(2) The person so entrusted must use that property, or;
(3) The accused must dishonestly use or dispose of that

property or wilfully suffer any other person to do so in violation,
(a) of any direction of law prescribing the mode in which

such trust is to be discharged, or;
(b) of any legal contract made touching the discharge of
such trust.
24. “Entrustment” of property under Section 405 of the Indian Penal Code,
1860 is pivotal to constitute an offence under this. The words used are, ‘in any
manner entrusted with property’. So, it extends to entrustments of all kinds
whether to clerks, servants, business partners or other persons, provided they
are holding a position of ‘trust’. A person who dishonestly misappropriates
property entrusted to them contrary to the terms of an obligation imposed is
liable for a criminal breach of trust and is punished under Section 406 of the
Penal Code.
25. The definition in the section does not restrict the property to movables
or immoveable alone. This Court in R K Dalmia vs Delhi Administration22
held that the word ‘property’ is used in the Code in a much wider sense than
the expression ‘moveable property’. There is no good reason to restrict the
22 (1963) 1 SCR 253
22
meaning of the word ‘property’ to moveable property only when it is used
without any qualification in Section 405.
26. In Sudhir Shantilal Mehta Vs. CBI23 it was observed that the act of
criminal breach of trust would, Interalia mean using or disposing of the
property by a person who is entrusted with or has otherwise dominion
thereover. Such an act must not only be done dishonestly but also in violation
of any direction of law or any contract express or implied relating to carrying
out the trust.
27. Section 415 of IPC define cheating which reads as under: -
“415. Cheating. —Whoever, by deceiving any person,

fraudulently or dishonestly induces the person so deceived
to deliver any property to any person, or to consent that
any person shall retain any property, or intentionally
induces the person so deceived to do or omit to do
anything which he would not do or omit if he were not so
deceived, and which act or omission causes or is likely to
cause damage or harm to that person in body, mind,
reputation or property, is said to “cheat”.”
The essential ingredients of the offense of cheating are:
1. Deception of any person

2. (a) Fraudulently or dishonestly inducing that person-
(i) to deliver any property to any person: or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person to do or omit to do anything which

he would not do or omit if he were no so deceived, and which act or
23 (2009) 8 SCC 1
23
omission causes or is likely to cause damage or harm to that person in
body,mind,reputation or property.
28. A fraudulent or dishonest inducement is an essential ingredient of the
offence. A person who dishonestly induces another person to deliver any
property is liable for the offence of cheating.
29. Section 420 IPC defines cheating and dishonestly inducing delivery of
property which reads 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.”
30. Section 420 IPC is a serious form of cheating that includes inducement
(to lead or move someone to happen) in terms of delivery of property as well
as valuable securities. This section is also applicable to matters where the
destruction of the property is caused by the way of cheating or inducement.
Punishment for cheating is provided under this section which may extend to 7
years and also makes the person liable to fine.
24
31. To establish the offence of Cheating in inducing the delivery of property,
the following ingredients need to be proved:-
1. The representation made by the person was false
2. The accused had prior knowledge that the representation he made was
false.
3. The accused made false representation with dishonest intention in order
to deceive the person to whom it was made.
4. The act where the accused induced the person to deliver the property or
to perform or to abstain from any act which the person would have not
done or had otherwise committed.
32. As observed and held by this Court in the case of Prof. R.K.
Vijayasarathy & Anr. Vs. Sudha Seetharam & Anr. 24 , the ingredients to
constitute an offence under Section 420 are as follows:-
i) a person must commit the offence of cheating under Section 415;
and
ii) the person cheated must be dishonestly induced to;
a) deliver property to any person; or
b) make, alter or destroy valuable security or anything signed or
24 (2019) 16 SCC 739
25
sealed and capable of being converted into valuable security. Thus,
cheating is an essential ingredient for an act to constitute an offence
under Section 420 IPC.
33. The following observation made by this Court in the case of Uma
Shankar Gopalika Vs. State of Bihar & Anr. 25 with almost similar facts and
circumstances may be relevant to note at this stage:-
“6. Now the question to be examined by us is as to

whether on the facts disclosed in the petition of the
complaint any criminal offence whatsoever is made out
much less offences under Section 420/120-B IPC. The
only allegation in the complaint petitioner against the
accused person is that they assured the complainant that
when they receive the insurance claim amounting to Rs.
4,20,000, they would pay a sum of Rs. 2,60,000 to the
complainant out of that but the same has never been
paid. It was pointed out that on behalf of the complainant
that the accused fraudulently persuaded the complainant
to agree so that the accused persons may take steps for
moving the consumer forum in relation to the claim of Rs.
4,20,0000. It is well settled that every breach of contract
would not give rise to an offence of cheating and only in
those cases of breach of contract would amount to
cheating where there was any deception played at the
very inception. If the intention to cheat has developed
later on, the same cannot amount to cheating. In the
present case, it has nowhere been stated that at the very
inception that there was intention on behalf of the
accused person to cheat which is a condition precedent
for an offence under 420 IPC.
“7. In our view petition of complaint does not disclose any

criminal offence at all much less any offence either under
Section 420 or Section 120-B IPC and the present case is
a case of purely civil dispute between the parties for
which remedy lies before a civil court by filing a properly
constituted suit. In our opinion, in view of these facts
25 (2005) 10 SCC 336
26
allowing the police investigation to continue would
amount to an abuse of the process of court and to
prevent the same it was just and expedient for the High
Court to quash the same by exercising the powers under
Section 482 Cr.P.C which it has erroneously refused.”
34. There can be no doubt that a mere breach of contract is not in itself a
criminal offence and gives rise to the civil liability of damages. However, as
held by this court in Hridaya Ranjan Prasad Verma & Ors. Vs. State of
Bihar & Anr.26, the distinction between mere breach of contract and cheating,
which is criminal offence, is a fine one. While breach of contract cannot give
rise to criminal prosecution for cheating, fraudulent or dishonest intention is
the basis of the offence of cheating. In the case at hand, complaint filed by the
Respondent No. 2 does not disclose dishonest or fraudulent intention of the
appellants.
35. In Vesa Holdings Pvt. Ltd. & Anr. Vs. State of Kerala & Ors. 27, this
Court made the following observation:-
“13. It is true that a given set of facts may make out a civil
wrong as also a criminal offence and only because a civil
remedy may be available to the complainant that itself
cannot be ground to quash a criminal proceeding. The real
test is whether the allegations in the complaint disclose the
criminal offence of cheating or not. In the present case,
there is nothing to show that at the very inception there was
any inception on behalf of an accused person to cheat
which is a condition precedent for an offence u/s 420 IPC. In
our view, the complaint does not disclose any criminal
offence at all. Criminal proceedings should not be
26 (2000) 4 SCC 168
27 (2015) 8 SCC 293
27
encouraged when it is found to be mala fide or otherwise an
abuse of the process of the courts. Superior courts while
exercising this power should also strive to serve the ends of
justice. In our opinion, in view of these facts allowing the
police investigation to continue would amount to an abuse of
the process of the court and the High Court committed an
error in refusing to exercise the power under Section 482
Cr.P.C to quash the proceedings.”
36. Having gone through the complaint/FIR and even the chargesheet, it
cannot be said that the averments in the FIR and the allegations in the
complaint against the appellant constitute an offence under Section 405 & 420
IPC, 1860. Even in a case where allegations are made in regard to failure on
the part of the accused to keep his promise, in the absence of a culpable
intention at the time of making promise being absent, no offence under
Section 420 IPC can be said to have been made out. In the instant case,
there is no material to indicate that Appellants had any malafide intention
against the Respondent which is clearly deductible from the MOU dated
20.08.2009 arrived between the parties.
37. The entire origin of the dispute emanates from an investment made by
Respondent No. 2, amounting to Rs. 2.5 crores in lieu of which 2,50,000/-
equity shares were issued in the year 25.03.2008, finally culminating into the
MOU dated 20.08.2009. That based on this MOU respondent No. 2 filed three
complaints, two at Delhi and one at Kolkata. Thus, two simultaneous
proceedings, arising from the same cause of action i.e. MOU dated
28
20.08.2009 were initiated by Respondent No. 2 amounting to an abuse of the
process of the law which is barred. The details of the complaints are as
under:-
1. On 06.06.2012, Respondent No. 2 filed a private complaint u/s 156(3)

Cr.P.C with CJM, Tis Hazari Court Delhi for registration of fir against the
Appellants; which was withdrawn on 19.09.2016.
2. Complaint u/s 68 of the companies act r/w section 200 crpc filed before
the CMM, Tis Hazari Courts at Delhi; which is pending.
3. On 28.03.2013, a complaint was made to the P.S Bowbazar, Central

Division, Kolkata which was eventually registered as FIR No. 168 u/s
406, 420, 120B IPC, 1860.
38. Respondent No. 2 filed a complaint u/s 156(3) Cr.P.C on 06.06.2012,
wherein his prayer for registration of an FIR was rejected vide order dated
28.02.2013 by the MM, Tis Hazari Court, immediately after which he filed his
complaint on 28.03.2013 at P.S Bowbazar, Calcutta. The timeline of filing
complaints clearly indicates the malafide intention of Respondent No. 2 which
was to simply harass the petitioners so as to pressurise them into shelling out
the investment made by Respondent No. 2.
Malafide intention of Respondent No. 2 is culled out from following facts:-
1. At the time of filing of complaint dated 31.03.2013 at PS Bowbazar,
Respondent No. 2 did not disclose about the filing of two complaints at
Delhi against the appellants.
29
2. After filing of closure report by the IO Bowbazar PS dated 04.03.2014,
Respondent No. 2 filed a protest petition before the CMM, Kolkata
where the material fact of two complaints was completely suppressed.
39. In the complaint no. 306/1/2012 dated 06.06.2012 registered before the
MM, Tis Hazari Court, New Delhi, Respondent No. 2/complainant stated that:-
“(c) That, thereafter Mr. Vijay Kumar Ghai and Mr. Mohit
Ghai started visiting the office of the complainant company
every now and then in order to persuade the complainant
company to invest in their company. It is pertinent to
mention herein that they stated the complainant company
that the retail business of the apparels under the PRIKNIT
brand through a network of exclusive brank outlets was
witnessing a growth..”
10. That it is submitted that this court has jurisdiction to try

and entertain the matter as the complainant company is
situated within the jurisdiction of this court. Moreover, all
the business activities/transactions are being
regulated and controlled at Delhi. Furthermore, the
complaints filed by the complainant company are lying
before the concerned police station, which also falls within
the jurisdiction of this Hon’ble Court.”
This clearly demonstrates that the jurisdiction has been created in Delhi as the
Appellants used to visit Respondent No. 2 in order to persuade them to invest
in their company and special emphasis can be laid on the fact that
Respondent No. 2 himself accepted/agreed to the fact that all the transactions
took place in Delhi. Therefore, registering a complaint in Kolkata is way of
harassing the appellant as a complaint has already been filed in Delhi with all
the necessary facts, apart from the jurisdictional issue at Kolkata.
30
40. The MM, Tis Hazari while dismissing the application under Section
156(3) Cr.P.C categorically observed that:-
“….In case the complainant had suffered any loss on

account of the same, the necessary civil remedy lied in the
form of damages, compensation and recovery. In case of
breach of any term or condition of the contract, the
necessary proceedings for injunction or specific
performance can be initiated. But that by itself would not
mean that the accused had misappropriated the amount of
complainant for a year. There is nothing to show any
conversion or misappropriation of money as the shares
had been allotted subsequently. The parties have
themselves agreed on clauses as to failure to honor their
commitments providing for levy of interest on delayed
payments.
There is no prima facie element of deception or dishonest

inducement or misappropriation or conversion or
entrustment or forgery in this case.
There is no requirement of police interference in this case.
Even otherwise, the evidence in the present case is well
within the reach of the complainant itself and it is well
aware of the identity of accused persons and no
investigation of technical nature is required which could
warrant police intervention. The necessary record is
withing the possession of the complainant itself and the
same can always be proved on record by examining the
witnesses. There is no necessity of any custodial
interrogation at this stage and nothing identifiable is to be
recovered from anyone.
In these circumstances, I do not deem it appropriate to
exercise my discretion and get the FIR registered against
the accused persons, especially when there is no
necessity for police interference. The present application
under Section 156(3) Cr.P.C is thus dismissed.”
41. It is pertinent to mention that Application under Section 156(3) Cr.P.C
filed before the MM, Tis Hazari Court, Delhi was dismissed and there was no
31
further challenge against the same. Instead, Respondent No. 2 chose to file a
complaint with the same cause of action in Bowbazar PS, Calcutta and to
further clarify, the Complaint filed in Bowbazar PS was the exact reproduction
of the complaint filed before Tis Hazari Court, New Delhi with the only
difference or what may be termed as ‘Jurisdictional improvement’ being in
point (c) of the facts. It is reproduced in bold below:-
“(c) That, thereafter Mr. Vijay Kumar Ghai and Mr. Mohit
Ghai started visiting the office and regional office of the
complainant company every now and then in order to
persuade the complainant company to invest in their
company...”
10. That the facts mentioned above clearly disclose the

commission of cognizable offences under Sections of the
Indian Penal Code mentioned herein. That the accused
persons approached the regional office too to
persuade the head office for the aforesaid purposes
therefore the cause of action also arose the local
jurisdiction.”
42. The order of the High Court is seriously flawed due to the fact that in
its interim order dated 24.03.2017, it was observed that the contentions put
forth by the Appellant vis-à-vis two complaints being filed on the same cause
of action at different places but the impugned order overlooks the said aspect
and there was no finding on that issue. At the same time, in order to attract the
ingredients of Section of 406 and 420 IPC it is imperative on the part of the
complainant to prima facie establish that there was an intention on part of the
petitioner and/or others to cheat and/or to defraud the complainant right from
the inception. Furthermore it has to be prima facie established that due to
32
such alleged act of cheating the complainant (Respondent No. 2 herein) had
suffered a wrongful loss and the same had resulted in wrongful gain for the
accused(appellant herein). In absence of these elements, no proceeding is
permissible in the eyes of law with regard to the commission of the offence
punishable u/s 420 IPC. It is apparent that the complaint was lodged at a very
belated stage (as the entire transaction took place from January 2008 to
August 2009, yet the complaint has been filed in March 2013 i.e., after a delay
of almost 4 years) with the objective of causing harassment to the petitioner
and is bereft of any truth whatsoever.
43. In view of the above facts and circumstances, the impugned order dated
01.10.2019 passed by the High Court is set aside. The impugned FIR No. 168
dated 28.03.2013 and proceedings in the file of CMM, Kolkata, West Bengal in
pursuance of charge sheet dated 14.02.2017 against the appellants for the
offences under Section 406, 420, 120B IPC stands quashed.
44. As a result, appeal stands allowed.
.................................J.
(S. ABDUL NAZEER)
...............................J.
(KRISHNA MURARI)
NEW DELHI;
22nd MARCH, 2022
33
2022/DHC/005579
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 22nd September, 2022

Pronounced on:15th December, 2022
+ ARB.P. 790/2020, IA 12493/2020, IA 3888/2021
BRILLTECH ENGINEERS PRIVATE LIMITED

R/o A-94, Lohia Nagar,
Ghaziabad-201001 ....Petitioner
Through: Mr. Ankur Singhal, Advocate
versus
SHAPOORJI PALLONJI AND COMPANY

PRIVATE LIMITED
R/o 70, Nagindas Master Road,
Fort, Mumbai-400032 ..... Respondent
Through: Mr. Manik Dogra, Mr. Haiyesh
Bakshshi, Mr. Ravi Tyagi, Mr.
Gaurav Mishra, Ms. Mayuri
Shukla, Mr. Daman Popli and
Ms. Neetu Devrani, Advocates.
+ O.M.P. (I) (COMM) NO. 324/2020
BRILLTECH ENGINEERS PRIVATE LIMITED

R/o A-94, Lohia Nagar,
Ghaziabad-201001 ..... Petitioner
Through: Mr. Ankur Singhal, Advocate
versus
1. SHAPOORJI PALLONJI AND COMPANY

PRIVATE LIMITED& ANOTHER
R/o 70, Nagindas Master Road,
Fort, Mumbai-400032
Signature Not Verified ARB.P. 790/2020 & connected matter Page 1 of 20

Signed By:PRIYANKA
ANEJA
Signing Date:15.12.2022
18:23:42
2022/DHC/005579
2. ARMY WELFARE HOUSING ORGANISATION

South Hutments, Kashmir House,
Rajaji Marg, New Delhi-110011 ..... Respondents
Through: Mr. Manik Dogra, Mr. Haiyesh
Bakshshi, Mr. Ravi Tyagi, Mr.
Gaurav Mishra, Ms. Mayuri
Shukla, Mr. Daman Popli and
Ms. Neetu Devrani, Advocates.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G E M E NT
NEENA BANSAL KRISHNA, J
1. A Petition Arb. P. NO. 790/2020 under Section 11(6) of the

Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act)
has been filed for appointment of a sole Arbitrator. A separate petition
No.OMP(I)(Comm) 324/2020 under Section 9 of the Act has been filed
against the respondent as well as against Army Welfare Housing
Organization (hereinafter referred to as AWHO) for attachment of amount
of Rs. 2,58,03,143/- lying in the hands of AWHO who is indebted to pay the
amount in order to enable the respondent to release the amount in favour of
the petitioner.
2. The facts in brief, are that AWHO had awarded the work of
construction of Twin Tower residential accommodation at Greater Noida, to
the respondent vide CA No. AWHO/G.Noida/16/2010 dated
11.03.2011(hereinafter referred to as Project). AWHO vide its Letter no.
E/03002/CA16-2010/GND-PH-IV/597/AWHO dated 16.11.2011 approved

Signed By:PRIYANKA
ANEJA
18:23:42
2022/DHC/005579
the petitioner as “Specialist Firm” for carrying out electrification works in

the said Project.
3. The respondent had awarded the Work Order for electrical works in
the said Project exclusively to the petitioner vide Letter No.
SPCL/AWHO/WO_ELE/08 dated 19.12.2011. The entire electrical work
was solely executed by the Petitioner. The mechanism for executing the
Work Order agreed between the parties was that the petitioner shall issue the
running account bills (RA Bills) in respect of the work done which would be
approved and confirmed by the respondent on the basis of joint inspection
conducted by the AWHO and the Architect. Thereafter, the petitioner shall
generate the Tax invoices after accepting the verification and certification,
which the respondent shall receive and accept by making an endorsement
and would make the payment on back-to-back basis.
4. The petitioner submitted the running account bill no. 40 dated
29.10.2018 for the sum of Rs. 37,34,229/- in respect of the work done which
was duly approved and confirmed by the respondent. The respondent made
certain deductions on account of which Rs. 20,87,437/- are still due and
payable against Bill no. 40. Thereafter, the petitioner raised another running
account bill no. 41 dated 01.03.2019 for the sum of Rs. 41,44,500/- which
was duly approved and confirmed by the respondent.
5. It is further asserted that a security @ 5% i.e., Rs. 30,15,468/- was to
be paid after the virtual completion of the Project in the month of May, 2018
as the AWHO had started handing over/allotting the flats in the month of
May, 2018. The respondent is liable to pay the security amount along with
interest @ 24% per annum on the said security amount w.e.f. 01.06.2018.

Signed By:PRIYANKA
ANEJA
18:23:42
2022/DHC/005579
6. It is submitted that the Project was successfully completed vide

Completion Certificate dated 25.03.2019 and a Letter of Appreciation dated
12.03.2019 was issued by AWHO in favour of the petitioner. It is asserted
that as per the Ledger Account, an outstanding amount of Rs. 59,76,574/- on
which interest @ 24% per annum was payable.
7. A Demand Notice dated 19.04.2019 was served upon the respondent
but they concocted a false and frivolous story vide its reply dated
08.05.2019 wherein it was claimed that the respondent was obligated to pay
to the petitioner for the work done only upon the receipt of corresponding
amount from AWHO. It is claimed that the respondent had been receiving
the corresponding payment from the AWHO but it failed to make payments
on back-to-back basis to the petitioner; rather the payments were made after
the period of 6-8months. The disputes have thus, arisen between the parties.
8. The petitioner also submitted an application with MSME
SAMADHAAN but no steps were initiated by the latter and the proceedings
became void ab initio because of the statutory limit prescribed thereunder.
9. Consequently, C.P.(IB) No. 2734/2019 under Section 9 of the
Insolvency and Bankruptcy Code (IBC) was filed by the petitioner against
the respondent in NCLT, Mumbai for initiating corporate insolvency
resolution process. The NCLT, Mumbai opined that the claim of the
petitioner is valid and genuine and the respondent was asked to settle the
matter. However, officials of the respondent were not willing to settle the
matter and have been making fictitious and self-contradictory statements.
10. The petitioner filed the petition under Section 9 of the Act on
05.10.2020 wherein again the respondent had asserted that they are desirous

Signed By:PRIYANKA
ANEJA
18:23:42
2022/DHC/005579
of amicable resolution of disputes but again adopted an adamant and

illogical approach and all the efforts to amicable settlement failed.
11. The petitioner has asserted that a sum of Rs. 2,58,03,143/- is to be
recovered from the respondent. In terms of Clause 13 of the Work Order
dated 19.12.2011, the resolution of disputes is through arbitration. Hence,
the present petition has been filed under Section 11 of the Act for
appointment of the Arbitrator. A petition under Section 9 of the Act has also
been filed for attachment of amount of Rs. 2,58,03,143/- lying in the hands
of AWHO who is indebted to pay the amount in order to enable the
respondent to release the amount in favour of the petitioner.
12. The respondent in its Reply has taken preliminary objection that the
matter has already been submitted before the NCLT, Mumbai under Section
9 of the Insolvency and Bankruptcy Code, 2016(hereinafter referred to as
Code) as an Operational Creditor. It is a trite law that proceedings under
Section 9 of the Code can be initiated only when the disputes between the
parties are non-arbitrable. Hence, the petitioner has expressly rejected any
remedy available under the Arbitration Agreement.
13. Further, the petitioner in its rejoinder had specifically stated that there
are absolutely no disputes between the parties but the respondent (Corporate
Debtor) has delayed the release of payments to the petitioner. There is a
clear admission on behalf of the petitioner that that there are no disputes
between the parties for arbitration and therefore, the present petition is not
maintainable.
14. It is further asserted that according to Clause 13 of the Work Order
which contains the mechanism for dispute resolution, the first step was
mutual discussion and thereafter the matter was to be referred to the

Signed By:PRIYANKA
ANEJA
18:23:42
2022/DHC/005579
Regional Head and incase the disputes were still not resolved, the matter
could be referred to the arbitration. The petitioner had failed to follow the
pre-conditions for referral of disputes to the Arbitration and therefore, the
petition is not maintainable.
15. The respondent has further asserted that the mandatory Notice under
Section 21 of the Act invoking the arbitration has not been served upon the
respondent till date. Only a Demand Notice dated 19.04.2019 under Rule 5
of the Code, 2016 had been served upon the respondents expressing its
intent for initiating corporate insolvency resolution process. It has chosen to
approach the NCLT. The petitioner has not specified the date on which
arbitration was invoked as per the provisions of the Act which is in
contravention of the law as laid down by the Courts. In the absence of the
Notice of Invocation of Arbitration, the present petition is liable to be
dismissed.
16. The respondent has further asserted that incorrect statements have
been made by the petitioner in this petition.
17. On merits, it is admitted that respondent had entered into a Contract
of Construction of Twin Tower residential accommodation at Greater Noida
which for the convenience has been named as the main Contract. It is again
not disputed that the electrical work was awarded to the petitioner vide
Work Order dated 19.12.2011. It is submitted that several running bills had
been raised by the petitioner for a period of 7 years and RA Bills No. 1 to 39
had been duly paid by the respondent on back-to-back basis.
18. It is explained that Work Order dated 19.12.2011 was amended by the
respondent on 16.10.2017 due to introduction of GST and due to change in
tax regime in 2017, which was accepted by the petitioner but all other terms

Signed By:PRIYANKA
ANEJA
18:23:42
2022/DHC/005579
and conditions as stated in the Work Order dated 19.12.2011 remained the
same. The respondent had made payments from time to time aggregating to
Rs.5,12,02,735/- towards the bills raised under the amended Work Order in
respect of RA Bill No. 40 dated 29.10.2018 and the corresponding Tax
invoices dated 30.10.2018 for a sum of Rs. 37,44,229/-The BOQ along with
the amended Work Order clearly mentioned that up to June, 2017, an
amount of Rs. 5,21,13,743/- had been paid. It is claimed that after making
all the adjustments of deductions and recovery, balance payment of Rs. 2.50
lakhs was made to the petitioner. Thereafter, no further payment remains to
be paid to the petitioner.
19. The petitioner was required to approach the respondent for re-
conciliation of accounts but the petitioner till date has not submitted the
Final Bill and any reference to it in the present petition, is denied.
20. It is further asserted that the petitioner has been continuously resorting
to various Demand Notices to respondent and Letters to AWHO before
various Courts and has been filing petitions before various forums of law
submitting the claims indifferent amount. It is a clear indication that the
petitioner is resorting to forum shopping and his acts are mala fide.
21. It is re-asserted that there is no arbitrable dispute and the present
petition is liable to be dismissed.
22. Submissions heard.
23. It is an admitted case that AWHO had awarded a Contract dated
11.03.2011 for construction of Twin Tower residential accommodation at
Greater Noida. It is also not in dispute that the respondent vide Work Order
dated 19.12.2011 awarded the electrical work to the petitioner. The
petitioner has asserted that as per its Ledger Account, a sum of Rs.

Signed By:PRIYANKA
ANEJA
18:23:42
2022/DHC/005579
59,76,574/- along with interest @ 24% is liable to be paid by the respondent

and in terms of the Clause 13 of the Work Order dated 19.12.2011, the
matter be referred to the arbitration.
A. Existence of Arbitrable Disputes:
24. The first objection taken on behalf of the respondent is that there are
no arbitrable disputes between the parties. A reference has been made to the
rejoinder filed by the petitioner in its petition before the NCLT wherein it
was asserted that there are no arbitrable disputes and had claimed that the
debt amount was liable to be paid by the respondent.
25. Learned counsel on behalf of the respondent has argued that a petition
before the NCLT is maintainable only in cases of disputes in respect of
determined undisputed amounts as debts. Since, the petitioner itself has
chosen to invoke the jurisdiction of NCLT, it is quite evident that there are
no arbitrable disputes and the present petition is not maintainable.
26. It is a settled proposition of law that jurisdiction of NCLT can be
invoked only in respect of determined debts. However, merely because a
petition has been filed by the petitioner asserting that a definite amount is
payable by the respondent, would not imply that the claimed amount has
been admitted by the respondent but is only expressing its inability to be
able to pay the claimed amount. The Respondent has consistently taken a
stand in its Reply dated 08.05.2019 to the Demand Notice and in the other
proceedings including Section 9 petition as well as in the reply to the present
petition that the amounts have been claimed by the petitioner wrongly and
the same are not due and payable by the respondent.
27. In Mobilox Innovations Private Limited Vs. Kirusa Software Private
Limited (2018) 1 Supreme Court Cases 353,it was explained that under

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Section 9 (5) (ii) (d) of Insolvency and Bankruptcy Code (IBC), the
adjudicating authority must reject an application if a notice of dispute is
received by the Operational Creditor or there is record of the dispute in the
information utility as state under Section 9 (5) (ii) (d). If it is brought to the
notice of the adjudicator that there is existence of a dispute or that a suit or
arbitration proceedings relating to the dispute is pending, the application has
to be rejected. It has categorically been laid down that IBC is not intended to
be a substitute to recovery forum and whenever there is an existence of real
disputes, IBC provisions cannot be invoked.
28. In the present case, though a proceeding may have been initiated by
the petitioner before the NCLT asserting that there is an admitted debt as has
been pointed out by the respondent, but a mere assertion would not make it
into an admitted liability especially when the respondent has been refuting it
at every forum and in every proceeding.
29. It is quite evident that there is consistent stand of the respondent
challenging the amounts claimed by the petitioner. Clearly, there are
arbitrable disputes in regard to the claimed amounts and the objection taken
by the respondent in regard to non-existence of arbitrable disputes, is not
tenable.
B. Forum Shopping:
30. The respondent has further claimed that different amounts have been
claimed by the petitioner in different proceedings. The claim before the
MSME forum was of Rs.20.87 lakhs while under Section 8 of IBC it was
Rs. 99 lakhs. In the present case, the claim has been made for Rs. 2.50
crores. It is quite evident from the fluctuating amounts that nothing is due
and it is only forum shopping which is being indulged into by the petitioner.

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31. It can be seen from the various proceedings which have been initiated
by the petitioner that different amounts had become due and payable at
different times and also interest component which was being claimed, was a
variable. The petitioner has given explanation for claiming the amounts
before various forums depending upon when it had approached that
particular forum. Merely because the petitioner has approached different
forums for redressal of its claims, cannot be said to be a ground to hold that
this is a case of forum shopping.Each of the provision invoked by the
petitioner has its own individual scope and it cannot be said that resort to
one has the effect of ousting the other forums or that it is a case of forum
shopping.
32. The doctrine of election was discussed in A. P. State Financial
Corporation Vs. Gar Re-Rolling Mills (1994) 2 SCC 647wherein it was
explained that when two remedies are available for the same relief, the party
has an option to elect either of them but that doctrine would not apply where
the ambit and scope of the two remedies is essentially different. In National
Insurance Company Ltd. Vs. Mastan (2006) 2 SCC 641, the Apex Court
explained that the doctrine of election is a branch of rule of estoppel in as
much as a person may be precluded by his actions or conduct or silence
when it has duty to speak, from asserting a right which he otherwise would
have had. This test was endorsed by the Hon’ble Supreme Court in the case
of Ireo Grace Realtech Private Limited Vs. Abhishek Khanna and Others
(2021) 3 Supreme Court Cases 241.
33. In Union of India and Others Vs. Cipla Limited and Another (2017)
5SCC 262, the Supreme Court explained that a classic example of Forum
Shopping is when a litigant approaches one Court for relief but does not get

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the desired relief and then approaches another Court for the same relief.
Examples were given of cases pertaining to child custody, successive bail
applications and of filing repeat applications with a slight change in the
prayer clause of the petition. The functional test to determine Forum
Shopping was explained as whether there is any functional similarity in the
proceedings between one Court and another or whether there is some sort of
subterfuge on the part of a litigant.
34. In the present case, the scope of enquiry in the proceedings before the
NCLT and before the Arbitrator is absolutely distinct. Merely because the
petitioner approached NCLT before seeking appointment of Arbitration, it
cannot be said that he was indulging in Forum Shopping.
C. Notice of Invocation under Section 21 of the Act:
35. The next objection taken on behalf of the respondent is that there is no
valid Notice of Invocation under Section 21 of the Act. Learned counsel for
the respondent has placed reliance on Bharat Sanchar Nigam Limited & Anr
Vs. Nortel Networks India Private Limited (2021) 5 SCC 738wherein the
significance of Notice under Section 21 before in filing a petition under
Section 11 was considered in the context of limitation.
36. Learned counsel for the respondent has also placed on reliance upon
Concept Infracon Pvt. Ltd. Vs. Himalaya Press Power Ltd., ARB.P
373/2016SCC OnLine 518to argue that the parties must strictly observe the
procedure for invoking the arbitration as provided in the Agreement. In the
said Judgment, a reference was made to Municipal Corporation Jabalpur
Vs. Rajesh Construction, 2007 (2) Arb. LR 65 (SC)and it was observed that
any function entrusted to a person/institution, party to the Agreement must

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follow the procedure of appointment as may be contained in the Agreement.

It was observed that from the legislative scheme of Section 11, it was clear
that if the parties have agreed for appointing arbitrator or arbitrators as
contemplated by Sub Section (2), then the disputes between the parties have
to be decided in accordance with the procedure and the recourse to the Chief
Justice or his designate cannot be taken straightaway.
37. In the present case, Clause 13 of the Arbitration Agreement reads as
under:
"13. Resolution of Disputes: All disputes or differences of
opinions, on account of interpretation of clauses, technical
specifications etc. shall be resolved through direct and mutual
discussions at site level. In case difference of opinion still
persisting, then the matter shall be referred to Regional Head, at
respective region. However, in case parties fail to reach
amicable settlement, the matter shall be referred to arbitration.
The arbitration shall be governed as per Indian Arbitration and
Conciliation Act 1996 and shall be held in New Delhi"
38. According to this Clause all disputes or difference of opinion on

account of interpretation of clauses, technical specifications, etc. were to be
first resolved through direct and mutual discussions at site level. In case
difference of opinion still persisted, the matter was to be referred to
Regional Head and even if thereafter the parties failed to reach the amicable
settlement, the matter was to be referred to Arbitration. It may be observed
that the mutual discussions and referral to Regional Head essentially
pertained to difference/dispute in regard to interpretation of clauses,
technical specifications, etc. The dispute between the parties arose in regard
to the payments and not in respect of any technical specifications. Moreover,
petitioner had also approached MSME Samadhan for resolution of disputes.

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Therefore, it cannot be said that the procedure as prescribed under Clause 13

of terms of Contract was not followed by the petitioner.
39. In Nirman Sindia Vs. Indal Electromelts Ltd., Coimbatore and others
AIR 1999 Ker 440, a detailed procedure for resolution of disputes in regard
to payments was envisaged whereby the disputes were first required to be
settled through Superintendent Engineer and if not satisfied with the
decision of the Engineer, it was required to be referred to the adjudicator.
Non-referral of disputes in regard to the disputes pertaining to payment,
execution, work, etc. where it could have been settled without having the
need to go to arbitration, was considered as an obstruction by the petitioner
in not following the procedure as envisaged in the Contract and the request
for arbitration was held to be premature. The facts involved in the present
case are clearly distinguishable.
40. The petitioner had served a Notice of Demand dated 19.04.2019
wherein after giving the entire background of the disputes, it was asserted
that Rs. 99,87,763/- was due.
The relevant Clauses of the Demand Notice read as under:
3. If you dispute the existence or amount of unpaid
operational debt (in default) please provide the
undersigned, within ten days of the receipt of this letter, of
the pendency of the suit or arbitration proceedings in
relation to such dispute filed before the receipt of this
letter/notice.
4. If you believe that the debt has been repaid before the
receipt of this letter, please demonstrate such repayment

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by sending to us, within ten days of receipt of this letter,

the following:
(a) An attested copy of the record of electronic transfer of
the unpaid amount from the bank account of the corporate
debtor; or
(b) an attested copy of any record that operational creditor
has received the payment.
5. The undersigned, hereby, attaches a certificate from an
information utility confirming that no record of a dispute
raised in relation to the relevant operational debt has been
filed by any person at any information utility. (If
applicable)
Not Applicable
6. The undersigned request you to unconditionally repay
the unpaid operational debt (in default) in full within ten
days from the receipt of this letter failing which we Shall
initiate a corporate insolvency resolution process in
respect of Shapoorji Pallonji & Company Private Limited.
41. The respondent vide its reply dated 08.05.2019 disputed the claim of
the petitioner and asserted that there were pre-existing disputes and
differences between the respondent and the petitioner with respect to the
work and the quality of work as well as non-performance by the petitioner
and in respect of several deductions and debits to be made from the bills of
the petitioner. It was also claimed that respondent had caused severe losses
and damages which have already been communicated to the petitioner.

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Relevant Clauses of the Reply read as under:
3. SPCPL states that, there serious and bonafide disputes

between BEPL and SPCPL with respect to the said claim,
which are existing even prior to the issuance of the
Demand Notice. The Demand Notice is, therefore, nothing
but a malafide tactic adopted by BEPL to pressurize
SPCPL to pay an alleged debt which is not due or payable
by SPCPL to pay an alleged debt which is not due or
payable by SPCPL, either contractually or legally or
otherwise. No action under the Code is therefore
maintainable against SPCPL, as alleged or at all.
…..
9. Without prejudice to the above, the alleged claim under

the Demand Notice is disputed and denied and the same is
not due or payable by SPCPL on the following grounds,
each of which is without prejudice and in the alternative to
the other.
10. SPCPL states that the Demand Notice has not been
issued in accordance with the provisions of the Code and
the rules made thereunder. Therefore, SPCPL disputes the
validity and propriety of the Demand Notice and denies any
liability towards BEPL.
….
13. In the light of the above facts and circumstances, we,
SPCPL hereby call upon you (BEPL) to forthwith withdraw

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the Demand Notice and confirm the same to us/SPCPL. In

the event you initiate any legal action against SPCL, as
threatened or otherwise, the same will be defended by
SPCPL, at your risk as to cost and consequences.
42. In Alupro Building Systems Pvt. Ltd. Vs. Ozone Overseas Pvt. Ltd
2017 SCC Online Del 7228, the purpose of giving a Notice was explained. It
was observed that without the Notice under Section 21 of the Act, a party
seeking reference of disputes to arbitration would be unable to demonstrate
that there was a failure by one party to adhere to the procedure and accede to
the request for the appointment of an Arbitrator. The trigger for the Court’s
jurisdiction under Section 11 of the Act is such failure by one party to
respond.
43. In Badri Singh Vinimay Private Limited v. MMTC Limited2020 SCC
OnLine DEL 106, this Court had explained that Section 21 of the Act
requires a party to send a request to the counter-party for the dispute to be
referred to arbitration, which should indicate the facts leading to the dispute,
and the nature of the claim be made clear. It also must clearly indicate the
legal recourse intended to be undertaken if its claim is not satisfied. The
initiation of arbitration proceedings in such a situation must be expressly
contemplated.
44. In M/s Anacon Process Control Private Limited v. Gammon India
Limited 2016 SCC OnLine Bom 10076, Bombay High Court observed that
in order to invoke arbitration, notice under Section 21 of the Act is a sine
qua non for commencement of arbitration proceedings. Hon’ble Supreme
Court in State of Goa versus Praveen Enterprises2011 SCC OnLine SC

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860had observed that Section 8 of the Act does not provide for appointment
of the Arbitrator but merely requires the Judicial Authority before whom an
action is brought in a matter in regard to which there is an Arbitration
Agreement, to refer the parties to arbitration.
45. In the light of above-mentionedjudgments, it needs to be considered if
the petitioner has met the prerequisite requirement of service of Notice
under S.21 of the Act. First and foremost, the intention of approaching the
appropriate forum for recovery of its claims had been indicated in the
Demand Notice itself. It was also stated that in case the claims of the
petitioner are not satisfied, it would be compelled to approach the NCLT. In
response thereto, the respondent had clearly indicated that there was no
ground to approach the arbitration or NCLT. It is quite evident that from the
Notice and the Reply thereto, the intention of invoking the legal proceedings
which included arbitration, was expressly conveyed. The sole purpose of
Section 21 is to put a party to notice about the intention of approaching the
arbitration which was sufficiently conveyed through Demand Notice and the
reply of the respondent.
46. It is significant to refer to the Order dated 21.10.2020 in OMP(I)
(COMM) 324/2020 under Section 9 wherein it was submitted on behalf of
the respondent that though the parties were unable to arrive at any
settlement, it would be appropriate if the pending disputes are referred to
arbitration subject to the petitioner withdrawing proceedings from other
forums. Respondent no. 1 further agreed to maintain a balance of Rs. 99,87,
763 towards the amount claimed by the petitioner in its Demand Notice
dated 19.04.2019.

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47. Even if for the sake of arguments, it is accepted that the Demand
Notice failed to meet the requisite requirements of Section 21 of the Act, it
cannot be overlooked that in the proceedings under Section 9 vide Order
dated 21.10.2020, the respondent had agreed to referral of the disputes
between the parties to arbitration. The petition under Section 9 of the Act
and the willingness of the respondent to resort to arbitration for resolution of
disputes is sufficient compliance of Section 21 of the Act.
48. The objection now being taken on behalf of the respondent of there
being no proper Notice under Section 21of the Act, loses its significance in
view of the proceedings that have transpired between the parties.
49. The Calcutta High Court in Universal Consortium of Engineers Pvt.
Ltd. Vs. Kanak Mitra and Another, AIR 2021 Calcutta 127, followed the
decision of the Apex Court in the State of Goaversus Praveen Enterprises
(Supra) wherein it was observed that the application under Section 11 of the
Act is itself a request by the petitioner for arbitration to conclude that mere
non-service of Notice under Section 21 of the Act on the respondents, would
not have the effect of making an application under Section 11 non-
maintainable.
50. In Bhupender Lal Ghai Vs. Crown Buildtech Private Limited,ARB. P.
470/2009 and ARB. P. 471/2009, decided on 14.07.2011, Co-ordinate
Bench of this Court considered a similar objection about non-service of
Notice under Section 21 of the Act before filing the petition under Section
11 of the Arbitration and Conciliation Act was taken, which was overturned
by making a reference to the observations made to the case of Haldiram
Manufacturing Co. Ltd Vs. SRF International, 139 (2007) DLT 142that
where no specific procedure is prescribed for constitution of Arbitral

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Tribunal, a party may approach the Court by filing an application under

Section 11 even without invoking Arbitration Agreement. The reasoning in
giving this observation was that the Notice of the Petition under Section 11
of the Act, when served upon the respondents, itself constitutes the notice
invoking arbitration and if the parties have to agree, there is nothing
prevents them even after the filing of the petition, to mutually agree on an
Arbitrator. Similar Observations were made in M/s Civtech Engineers Pvt.
Ltd. Vs. M/s. M. N. Securities Private Ltd. and Another, ARB. P. 93/2010
decided on 01.09.2010.
51. Prima facie, it has been shown that there are arbitral disputes between
the parties and in terms of the Clause 13 of the Work Order dated
19.12.2011, the disputes between the parties are referable to Arbitration.
52. In light of the facts and submissions made, Ms. R. Kiran Nath,
District & Sessions Judge (Retd.), (Mobile No. 9910384659) is hereby
appointed as the independent Arbitrator to adjudicate the disputes between
the parties.
53. The parties are at liberty to raise their respective objections before the
Arbitrator.
54. The fees of the learned Arbitrator would be fixed in accordance with
the IV Schedule to A&C Act, 1996 or as consented by the parties.
55. This is subject to the Arbitrator making necessary disclosure as under
Section 12(1) of A&C Act, 1996 and not being ineligible under Section
12(5) of the A&C Act, 1996.
56. Accordingly, petition under Section 11 of the Act is allowed.
57. Learned counsels for the parties are directed to contact the learned
Arbitrator within one week of being communicated a copy of this Order to

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them by the Registry of this Court. The copy of this order be also sent to the
learned Arbitrator for information.
Petition No.O.M.P. (I) (COMM) NO. 324 OF 2020 Under Section 9 of the
Act:
58. The respondent in his statement under 21.10.2020 had agreed to
maintain a balance of Rs.99,87,760 which was claimed in Demand Notice
dated 19.04.2019. Considering the disputes, the respondent is directed to
maintain a balance of Rs. 99,87,760 in its account till the adjudication of the
disputes, though either party may seek modification of this Order by moving
an appropriate application before the learned Arbitrator. Accordingly,
petition under Section 9 of the Act is allowed.
(NEENA BANSAL KRISHNA)

JUDGE
DECEMBER 15, 2022/PA

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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 463 OF 2022

VIJAY KUMAR GHAI & ORS. … APPELLANT(S)

THE STATE OF WEST BENGAL & ORS. … RESPONDENT(S)

2. This appeal is directed against the judgment and order dated

01.10.2019 passed by the High Court of Calcutta (hereinafter referred to as

proceedings against the present appellant/accused would not be an abuse of

the process of the court.

name to Priknit Apparels in 2007. The company is engaged in the

Company. The company has been arrayed as proforma Respondent No. 3.

3.2 In January 2008, Respondent No. 2 an authorized representative of

with the cheque of Rs. 2.5 crore.

of Respondent No. 2 whereby 2,50,000 shares were issued in lieu of the

investment made by him. The proforma respondent no. 3 company and

Respondent No. 2 arrived at an understanding, regarding the investment

made by Respondent No. 2.

3.4 Having failed to bring the I.P.O as per memorandum of understanding

dated 20.08.2009, Respondent No. 2 issued a legal notice dated 06.12.2011

allegations contained in the legal notice.

3.5 That on 06.01.2012, Respondent No. 2 filed a police complaint with PS

jurisdiction and therefore the same ought to be transferred. On 11.04.2012,

Respondent No. 2 filed a complaint with the Economic Offences Wing

(hereinafter referred to as “EOW”) and the said complaint was transferred to

PS Darya Ganj, New Delhi.

3.6 That on 06.06.2012, Respondent No. 2 filed a complaint being CC No.

01.09.2012, Respondent No. 2 also filed another Complaint No. 190 of 12

read with Section 200 of Cr.P.C which is pending adjudication.

3.7 That the Metropolitan Magistrate (hereinafter referred to as “MM”), Tis

application under Section 156(3) Cr.P.C filed by Respondent No.2. It is

Delhi attained finality as it was not put to further challenge.

3.8 That on 28.03.2013, Respondent No. 2 filed a second complaint under

with the Chief Metropolitan Magistrate (hereinafter referred to as “CMM”),

3.10 In the meantime, the authorized representative of Respondent No. 2

Cr.P.C for appearance before the Investigation Officer (hereinafter referred to

as “IO”) at PS Bowbazar, Kolkata. In his reply to the said notice, Appellant

operation to the IO at PS Bowbazar, Kolkata in connection with Case No. 168.

168 dated 28.03.2013 corresponding to GR Case No. 1221 of 2013 i.e.,

of 2013 by invoking Sections 401 and 482 Cr.P.C.

Respondents and stayed further proceeding of criminal case. Respondent No.

thus the proceedings at Calcutta were intended to harass the Appellants.

continuance of the criminal proceedings against the appellants is in no way an

judgment reads as under: -

Moreover, when the complaint discloses that the commercial

Contentions on behalf of Appellants

4. Ms. Menaka Guruswamy, learned senior advocate appearing on behalf

of the appellants has vehemently submitted that Respondent No.2 indulged in

the practice of forum shopping by filing 2 complaints i.e., a complaint u/s

IPC before PS Bowbazar, Calcutta on 28.03.2013. FIR in connection with PS

However, Respondent No. 2 filed an application under Section 173(8) of

investigation, charge sheet was filed against the Appellants herein.

place of occurrence was shown to be the office at New Delhi and in

subsequent complaint at Calcutta, the place of occurrence was changed to its

purview of cheating as defined in IPC. In addition to it, it was submitted that

purely a sale transaction or what may be called as a commercial transaction,

therefore the question of cheating does not arise at all.

filed by the Respondent No. 2 about the Appellants having fraudulent or

dishonest intentions at the time of making the representation.

mere failure to keep a promise does not create any presumption of a

dishonest intention amounting to a criminal breach of trust under Section 409

IPC or cheating under Section 420 IPC.

of India and Ors. Vs. Shantiranjan Sarkar4.