Mere Use Of Deceased Brother's SIM Card Not An Offence: Bombay High Court Quashes Cheating Case

A division bench of Justice Nitin W Sambre and Justice RN Laddha in a writ petition filed by the accused seeking quashing of the case remarked that prima facie, the proceedings were initiated solely out of family differences.

“Merely because the sim-card of real brother was used by the sister i.e., the present petitioner, that by itself will not constitute or amount to commission of the offence. The fact remains that to infer misuse of sim-card by the petitioner, there is no iota of evidence to infer such act…Prima-facie, it appears that the criminal proceedings are initiated by the complainant against the petitioner solely out of family differences as could be inferred from the relationship between the complainant and the petitioner.”

The petitioner, Dr. Heena Shaikh, is the sister of one Ashfaque, who passed away on April 23, 2020, due to a COVID-19 infection. Rumana, Ashfaque's wife, lodged a complaint on October 2, 2020, with allegations of offences under Sections 406 (criminal breach of trust), 420 (cheating), and 34 (acts done by several persons in furtherance of common intention) of the IPC against the petitioner and other persons.

Rumana's complaint accused Shaikh of using her deceased husband's SIM card after his death, blocking it, and returning it. Furthermore, she alleged that the petitioner, alongside others, orchestrated the unauthorized disposal of jointly owned movable assets, withholding the sale proceeds from her.

Advocate Vinay Nair for the petitioner argued that the prosecution's version, even if taken at face value, did not merit the charges attributed to the petitioner. Nair highlighted that the petitioner's involvement was primarily limited to the possession and use of the SIM card, which was returned to the complainant before lodging of the complaint.

The court said that the allegations related to the sale of movables like air conditioners, ovens, refrigerators, and others were not directly linked to the petitioner. Instead, it was one Afsar Shah, the brother of the deceased and complainant's brother-in-law, who executed the transactions at the complainant's behest, the court noted.

The court emphasized that merely using her deceased brother's SIM card could not constitute an offence, especially since the card was returned to the complainant before lodging of the complaint. The court highlighted the absence of concrete evidence linking the petitioner's actions to the alleged crimes and held that no offence could be inferred.

Thus, the court concluded that the necessary ingredients of criminal breach of trust and cheating could not be established against the petitioner. The court allowed the petition and quashed the FIR and the corresponding charge-sheet against the petitioner.

Case no. – Criminal Writ Petition No.1871 of 2022

Case Title – Heena Afrin Huzaifa Shaikh v. State of Maharashtra & Anr.

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