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2011 DIGILAW 113 (GUJ)

Lalabhai Shankarbhai Patel v. State Of Gujarat

2011-02-22

S.R.BRAHMBHATT

body2011
JUDGMENT S. R. BRAHMBHATT, J. 1. HEARD learned Advocate Shri Kishore Prajapati for Mr. Mehul H. Rathod for the applicants and Kalpesh L. Nadia for complainant respondent hereinbove. The applicants petitioners who have been named as accused Nos.1 and 2 in C.R. No. 11-53 of 2005 registered at Kalol Taluka Police Station, for the offence punishable under Section 506 (2) of Indian Penal Code and Section 3 (1) (X) of Scheduled Tribes and Scheduled Castes (Prevention of Atrocities) Act 1989, read with Section 506 (2) of Indian Penal Code moved this Court under Section 482 of the Criminal Procedure Code for quashing the said complaint and subsequently also prayed for quashing the proceedings arising there from for the reasons stated thereunder. 2. THE facts in brief leading to filing of this petition is required to be set out as under : The respondent-complainant had lodged complaint with the concerned Police Station inter alia containing allegations that he is in the business of taking civil contracts and he has studied up to fourth standard. About 9 months prior to the date of complaint, he was assigned the work of completing the pipeline on the part of the vilage Shankerpura and Bhagalvas under the jurisdiction of Boriaana Gram Panchayat. The Gram Panchayat had given him contract, at that time one Smt. Amrutaben Thakore was Sarpanch. The complainant completed his work and obtained certificate to this effect from Overseer one Shri R.B. Bhavar from Taluka Panchayat and he submitted his bill for Ra.20,085/- in Kalol Taluka Panchayat and that money was sanctioned by Taluka Panchayat and deposited in the account of Boriaana Gram Panchaynt, which he came to know and hence he demanded that money from in-charge Sarpanch-applicant No. 1, time and again. The complainant has alleged that he has made complaint to the concerned authorities on 26.04.2005, namely the Police Inspector, Kalol Taluka and copy thereof was sent to D.S.P, Gandhinagar, Home Minister and Minister of Panchayat etc. and it was inquired into by the concerned police station, but complainant did not receive the money. The complainant has alleged that he has made complaint to the concerned authorities on 26.04.2005, namely the Police Inspector, Kalol Taluka and copy thereof was sent to D.S.P, Gandhinagar, Home Minister and Minister of Panchayat etc. and it was inquired into by the concerned police station, but complainant did not receive the money. On the date of the incident i.e. 01.06.2005 at about 2:30, when he was going to the Sarpanch for demanding his money, he met applicant No. 1 and applicant No. 2 who happen to be the member of Panchayat and on demanding the money from them, they got infuriated and used the language which he narrated in the complaint so as to insult him on account of his caste, as he happens to be the member of Scheduled Caste. At that time he said that ex-sarpanch Ganpatji has also come and explained to the accused but to no avail and thus the applicants allegedly committed the offences under Section 506(2) of Indian Penal Code and Section 3(1)(X) 'of Scheduled Tribes and Scheduled Castes (Prevention of Atrocities) Act 1989, of IPC. 3. THIS Court on 16/8/2005 (Coram: Jayant Patel, J.) issued notice which was made returnable on 2/9/2005 and while issuing the notice, ad-interim relief in terms of para 6(B) granted, where under the' investigation itself was stayed. This Court on 20.12.2005 (Corama Ravi R. Tripathi, J.) issued Rule, which was made returnable on 08.02.2006 and continued interim relief granted earlier, till final disposal of this matter. In the mean time, the applicant received summons from the concerned Court and hence they moved Criminal Misc. Application No. 10650 of 2006 in Criminal Misc. Application No.8193 of 2005 for making appropriate amendment and seeking appropriate relief against conducting the further proceeding in the matter. This Court (Coram : K.S. Jhaveri, J.) on 7/2/2007, passed the following order:- "Heard. On the facts and circumstances of the case, this application for amendment is allowed. Amendment shall be carried out within a week. There shall be interim relief in terms of para 6 (b). Rule is made absolute accordingly. Main matter to come up on 26th February, 2007." and ultimately the application was allowed and the proceedings came to be stayed. 4. Amendment shall be carried out within a week. There shall be interim relief in terms of para 6 (b). Rule is made absolute accordingly. Main matter to come up on 26th February, 2007." and ultimately the application was allowed and the proceedings came to be stayed. 4. LEARNED Advocate for the applicant has submitted that the narration of the event as could be seen from the complaint itself would go to show that the complainant was interested in exerting pressure. The complaint was filed for wreaking vengeance upon the applicants, as the complainant's demand for his so called dues, were not accepted for want of requisite documents on the part of the complainant. The applicants have in the memo of the application narrated that the then Sarpanch of Gram Panchayat Smt. Amrutaben Thakore, who happen to be the wife of witness Shri Ganpatji, has been shown to be the witness of incidence, came to be removed from the post of Sarpanch. The new body of committee constituted on 05.02.2002 and the charge was thus given to the present applicant No. 1. The petition contains averments with regard to the Talati concerned along with said Shri Ganpatji, started interference in the day to day affairs of the Panchayat, misdeeds of the then Sarpanch Smt. Amrutaben Thakore, were reported to the concerned D.D.O. by various Panchayat members. The D.D.O., Gandhinagar, issued notice on 05.05.2004, calling upon explanation from the then Sarpanch as to why she should not be removed and after detailed Inquiry the D.D.O. passed an order on 17.11.2004, removing Smt. Amrutaben Thakore from the post of Sarpanch and applicant No. 1 was given the charge as Sarpanch. The petitioners have stated on oath in the petition that the then Sarpanch had also addressed a letter to one gentleman Shri Mafaji Shvaji Thakore on 28.06.2004, who is not cited as witness for releasing the amount for making up the pipeline but no such letter was found on the record of the Fanchayat. The averments in the petition which are made on oath go to show that the complainant had issued notice for demanding the money through Advocate and the said notice was replied appropriately and ultimately the amount, which was sanctioned by the Taluka Fanchayat, was sent back to Taluka Fanchayat as the veracity of the work done, could not be established. The averments in the petition which are made on oath go to show that the complainant had issued notice for demanding the money through Advocate and the said notice was replied appropriately and ultimately the amount, which was sanctioned by the Taluka Fanchayat, was sent back to Taluka Fanchayat as the veracity of the work done, could not be established. The complainant has, therefore, out of sheer frustration and for wrecking vengeance filed the complaint. The learned Advocate for the applicants has invited this Court's attention to the notice and reply to the notice and submitted that the overall facts and circumstances of the case, would persuade this Court to see that the complaint is essentially filed for wrecking vengeance upon the applicants. 5. LEARNED Advocate for the respondent complainant contended that the complainant had no reason to file the complaint, had there been no such incident in the first instance secondly there existed no animosity even remotely between the applicant No. 2 the accused No. 2 in the complaint. Therefore, the contention raised in this petition for quashing the complaint should not merit any consideration under Section 482 of the Code. LEARNED Advocate appearing for the complainant, thereafter submitted that the incident narrated in the complaint and the factum of depositing of cheque and the money being sent back to the Taluka Panchayat, go to show that the complainant did have a case of recovering the money and as the complainant did not heed to the undue demands, the said money was not paid to him and he was insulted as it is narrated in the complaint. The learned Advocate for the complainant has submitted that in view of this, the Court may not exercise its discretion for quashing the complaint, as the complaint contains ingredients for bringing home guilt on the Dart of the accused. 6. THIS Court is unable to accept submission of learned Advocate for the complainant for maintaining the complaint for the following reasons namely; (i) The entire complaint contains allegations which on the face of it, is capable of raising doubts with regard to the veracity of the complaint itself. 6. THIS Court is unable to accept submission of learned Advocate for the complainant for maintaining the complaint for the following reasons namely; (i) The entire complaint contains allegations which on the face of it, is capable of raising doubts with regard to the veracity of the complaint itself. (ii) The complainant, when said, that he has a legitimate right to recover the amount and that amount was being wrongfully denied to him, than he would have approached the appropriate authority namely the Taluka Panchayat, who had in fact been the sanctioning authority for the amount to be given to the person who had completed the work of pipeline. (iii) in the complaint, the complainant has indicated that he had approached the police authorities on earlier occasions and police authorities inquired into the matter, but as that Inquiry did not yield any result and he persisted with his demands, that he was insulted by the applicants accused as narrated in the complaint. Now, the complainant is claiming himself to be a contractor and when he is seeking his legitimate remuneration or payment from the instrumentality of the state, there cannot be any earthly reason to any one for withholding the said amount, without any just and proper reason. And the complainant did have remedy against it. (iv) The notice and the reply to the notice, go to show that the complainant was called upon to furnish documents to justify his claim and on his failure to do so, the money received for completion of the pipeline work from the Taluka Panchayat, were remitted back to Taluka Panchayat. (v) The facts remain to be noted that the Court may not take the version of accused for considering and quashing of the complaint, but the Court is required to examine the complaint itself for assessing its worth and come to the conclusion, as to whether the complaint is filed which is not inspiring any confidence about its truthfulness or it is filed only for exerting pressure or settling the personal score, in the instant case, the complainant was not without remedy for releasing his amount, which otherwise was legitimately due to him from the Panchayat. The member of the Panchayat and the in-charge Sarpanch did not deny the same to him. The member of the Panchayat and the in-charge Sarpanch did not deny the same to him. On the contrary, as could be seen from the reply to the notice, they called upon complainant to produce documentary evidence so that the amount could be released. The Court hasten to add here that the documentary evidence, so demanded, were not produced by the complainant and the complainant's Counsel has, based on a xerox copy of the document, which is purported to be certificate of completion, wherein also as could be seen the last line clearly appears to be interpolation contended that the claim was just and proper. The said certificate which is produced by the Counsel of the complainant, is bearing no date and it is not even on the letter-pad of any authority, it of course bears the rubber stamp of Taluka Panchayat, Kalol. This document ordinarily would not have been relied upon while assessing the submission for quashment of the complaint, but as this document is coming forward from the learned Counsel of the respondent and as it is being relied, the Court has then taken into consideration, in my view, as the complaint itself appears to have been filed with a view to exert undue pressure or after sheer frustration that the money as demanded were not paid, the complaint cannot be said to be filed bonafide and therefore, as the complaint itself is not filed bonafide, as the complainant has not even disclosed in the complaint, the issuance of notice and reply to the notice far taking advantage of the provisions of the Criminal Procedure Code. I am persuaded to accept this petition and quash the complaint. Accordingly, the complaint being CR No. 11-53 of 2005 registered with Kalol Taluka Police Station, Gandhinagar, is hereby quashed. The proceedings of Special Atrocity Case No.29 of 2006 are also quashed. Rule made absolute to the aforesaid extent. No costs. Rule absolute.