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Gujarat High Court · body

2009 DIGILAW 213 (GUJ)

Joginder Manohar Dange v. State of Gujarat

2009-03-26

D.H.WAGHELA

body2009
Judgment D.H. Waghela, J.—After the arguments having been concluded by learned Counsel Mr. Anjaria at the time of last hearing, the petition was argued de novo by learned Senior Advocate, Mr. Thakore, and it was specifically declared that the petitioner did not propose to withdraw the petition but invited a judgement. 2. The petitioner has invoked provisions of Section 482 of Cr.P.C. read with Article 226 of the Constitution for the relief of quashing Criminal Inquiry Case No. 11 of 2003, in which, by order dated 22.07.2005, summons for the offences punishable under Sections 420, 120-B, 34 and 427 of IPC are ordered to be issued to all the five accused persons, one of whom is the petitioner. 3. The original complainant, Gujarat Maritime Board, Respondent No. 2 herein, has filed the complaint dated 13.08.2003 with elaborate details of the accused persons having assured the complainant about payment of rent, and the plot and the structures thereon being entrusted to the accused persons on the basis of their assurance of regular payment of rent with additional promise of not damaging the premises or the structures thereon. It is alleged in the complaint that, clearly with an intention to cheat right from the inception, the accused persons had, in the name of their company, joined as accused No. 1, occupied the premises, used it for storing imported logs and after about 08 years of such use, have damaged the properties of the complainant on account of fire breaking out in the premises. Thus, a total loss of Rs. 41,09,180/- is alleged to have been caused and that loss and damage, after being subject matter of a civil suit, have resulted on 07.11.2007 into the decree which the complainant is unable to execute. 4. The original complaint dated 13.08.2003 was ordered to be investigated by P.I. of Mandavi Police Station by an order under Section 202 of CrPC on the same day and a report of investigation, alongwith statements of witnesses and other documents, was submitted to the trial Court. After considering the material, impugned order dated 22.07.2005 for issuing summons was issued. 4. The original complaint dated 13.08.2003 was ordered to be investigated by P.I. of Mandavi Police Station by an order under Section 202 of CrPC on the same day and a report of investigation, alongwith statements of witnesses and other documents, was submitted to the trial Court. After considering the material, impugned order dated 22.07.2005 for issuing summons was issued. The trial Court has, in that order, elaborately dealt with the contentions in the complaint as also the report of investigation and recorded prima facie findings to the effect that assurances were given by the accused persons about regular payment, that goods were removed from the plot with a view to causing loss to the complainant, that huge amount of rent was overdue, that a civil suit had had to be filed but, by some transactions in the name of the company, the decree could not be executed, that cheating was committed with a pre-determined intention and the accused persons appeared to have entered into a criminal conspiracy, which had actually resulted into the accused person even obtaining the amount of insurance upon the logs lying at the rented premises being burnt. 5. Without responding to the summons and apprising themselves about the report and result of the investigation which was carried on for almost two years, one of the accused persons rushed to this Court and further proceedings of the whole case, which is now registered as Criminal Case No. 228 of 2005, is stayed by the first order dated 27.11.2006 granting ad-interim relief in terms of Para 10(C) of the petition. Thus, the other accused persons have also enjoyed the ad-interim relief and immunity from prosecution for over five years even without approaching any Court. 6. It was argued by learned Senior Counsel Mr. Thakore, appearing for the petitioner, that none of the ingredients of the offences punishable under Sections 420, 120-B, 34 and 427 were made out in the complaint, particularly against the petitioner, who was accused No. 4 and only stated to be a Director of the Company in whose name the premises was taken on rent. Thakore, appearing for the petitioner, that none of the ingredients of the offences punishable under Sections 420, 120-B, 34 and 427 were made out in the complaint, particularly against the petitioner, who was accused No. 4 and only stated to be a Director of the Company in whose name the premises was taken on rent. He submitted that the complaint required specific allegations against the accused persons and must disclose all the important ingredients of the offences alleged, whereas, in the facts of the present case, it was purely a civil dispute which, in fact, had been taken to the civil Court and even a decree was already passed. He further submitted that no vicarious liability could be attached to a Director only on account of being a Director of the Company and the complaint did not disclose direct and personal involvement of the petitioner in the so-called acts constituting serious offences. Learned Counsel relied upon recent judgement of the Supreme Court in Inder Mohan Goswami and Anr. vs. State of Uttaranchal and Ors., (2007) 12 SCC page 1 and emphasized the following ratio: “42:- On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.” 7. It was submitted for the respondent by learned A.P.P. Mr. M.G. Nanavati and learned Counsel Mr. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning.” 7. It was submitted for the respondent by learned A.P.P. Mr. M.G. Nanavati and learned Counsel Mr. P.R. Nanavati, appearing for the original complainant, that not only that intention to cheat and dishonestly inducing the complainant to deliver the premises was clearly alleged against all the accused persons in the complaint itself but investigation by the police over a period of two years had brought on record material to substantiate those allegations; while the present petition was filed without reference to or even caring to go through that incriminating material which was already placed on record of the trial Court. Learned Counsel also pointed out that the intention to utilize the facility of the complainant without making necessary payment towards rent was so clear that it was not even claimed in the petition that any amount was sought to be paid to the complainant or that any of the accused had any intention of making any payment even after the complaint and the decree of the Civil Court. 8. The overall facts and circumstances of the case as briefly narrated here-in-above prima facie revealed a well thought out plan, behind the veil of corporate identity of a company, which only real human beings could operate, to take the benefit of the facilities provided by a public corporation and dupe it without even making a show of running a legal business by making regular payment to the complainant. 9. As held by the Apex Court in Inder Mohan Goswami (Spura) inherent jurisdiction of the High Court under Section 482 of Cr.P.C, though wide, has to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in the section itself. It 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 and, 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. It is further held by the Apex Court in B. Suresh Yadav vs. Sharifa Bee and Anr., (2007) 13 SCC 107 that, for the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise and in such cases, it is permissible to consider the stand taken by a party in a pending civil litigation. That does not mean that liability of a person cannot be both civil and criminal at the same time. In the facts of the case before this Court, the trial Court had taken cognizance for offences punishable under Section 420 read with Section 34 and 120-B as also under Section 427 of I.P.C., after investigation by police; and the material and report against the accused are suppressed. The complainant has stated as under the cause of action in the plaint of its civil suit: “14:- Cause of action for this suit has arisen when the defendant approached the plaintiff for the space to stake their wooden logs on rental charges and when they have repeatedly remanded (sic: reminded) to pay up the outstanding rental charges and the damages and when a statutory notice was issued somewhere in November,1996, and when police report was received on 21.10.1994.” 10. In above circumstances, the prosecution of the petitioner or any other accused person could not be said to be an abuse of the process of Court, but filing of the present petition for stalling the proceedings of the trial Court and avoiding both civil and criminal liabilities for many years could certainly be termed as an abuse of the process of this Court. Therefore, this is one of those cases where provisions of Section 482 of CrPC are invoked not to prevent abuse of the process of Court but to perpetrate abuse of process of this Court. It is often this kind of luxurious litigation that consumes more public time of the overburdened Courts than the genuine litigations in which parties may have a genuine grievance to be redressed. It is often this kind of luxurious litigation that consumes more public time of the overburdened Courts than the genuine litigations in which parties may have a genuine grievance to be redressed. If there was absence of sufficient material to proceed against the accused person, they could have made an application under Section 245 for discharge before the same Court, but the petitioner has chosen to ignore and suppress that material to enjoy an ex-parte stay for as a long a period as this Court may take to finally hear and decide the present petition, and not to allow the complainant to prove its case before the Court. Therefore, the attempt of the petitioner could not be viewed lightly. 11. The judgement of the civil Court further revealed that any of the accused persons had not responded to the summons of the Court and it was returned with the postal remark of “refused”; due to which an ex parte decree for recovering Rs. 41,09,532/- with interest @12% p.a. was made. That decree could not be executed on account of the accused being not available at the given address, while the accused had continued to occupy the premises and facilities even after notices by the complainant. The petition is therefore, dismissed, Rule is discharged and interim relief is vacated with costs quantified at Rs. 50,000/-, out of which, Rs. 40,000/- shall be paid to Respondent No. 2 and Rs. 10,000/- shall be paid to Respondent No. 1. If such payment is not made within a period of one month and evidence thereof is not produced before the Registry, the Registry shall place this order before the bench taking up contempt of Court matters for appropriate proceeding.