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2015 DIGILAW 164 (GUJ)

JINOFER BHUJWALA v. STATE OF GUJARAT

2015-02-09

VIPUL M.PANCHOLI

body2015
ORAL JUDGMENT 1. This petition is filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’), wherein, the petitioner has prayed that the FIR being C.R.No.I136/2011 filed by the respondent No.2, registered at Shahpur Police Station be quashed and set aside qua the petitioner. 2. Heard learned Senior Counsel Shri P.M. Thakkar with learned advocate Mr. P.P. Majmudar for the petitioner, learned advocate Mr. Dharmesh Shah for respondent No.2 and learned APP Ms. Punani for respondent No.1 – State of Gujarat. 3. Learned Senior Counsel for the petitioner submitted that the FIR bearing C.R.No. I136/2011 is registered with Shahpur Police Station against the petitioner and others for the offences punishable under Sections 406, 420, 467, 468, 471, 474, 409, 120B and 114 of the Indian Penal Code. The said FIR is filed on 29.09.2011 for the alleged transactions which had taken place during the period between 11.10.2003 to 22.09.2006. Learned Senior Counsel further submitted that the petitioner deals in the business of marine electronic, communication and navigational equipments. He is in the said business since last more than 20 years. The petitioner was dealing with Gujarat Maritime Board, Gujarat Mineral Development Corporation Ltd. Gujarat Narmada Valley Fertilizers Ltd., Police Department of Gujarat and Port Trust of Calcutta. In the year 2002, the Gujarat Maritime Board floated tender and invited bids from the concerned parties for the purpose of awarding the work of upgrading the Vessel Traffic Management System at Hazira/Magdella Port. The petitioner was interested in availing the said work from Gujarat Maritime Board. At that time, petitioner came to know that respondent No.2 also deals in the business of supply of Radar, in the name and style of “Elektronik Lab” at Mumbai and therefore he approached respondent No.2 for the purpose of negotiating the terms and conditions. Initially, the respondent No.2 executed a power of attorney in favour of petitioner on 28th March 2002, which is produced at page 384 of the compilation. Learned counsel further submitted that thereafter another Power of Attorney was executed on 11.10.2003, which is produced at page 57 of the compilation. Initially, the respondent No.2 executed a power of attorney in favour of petitioner on 28th March 2002, which is produced at page 384 of the compilation. Learned counsel further submitted that thereafter another Power of Attorney was executed on 11.10.2003, which is produced at page 57 of the compilation. Learned Counsel submitted that in pursuant to the said Power of Attorney executed by the partners of the Elektronik Lab, the petitioner opened the account in the Union Bank of India and transacted on behalf of respondent No.2. Learned counsel further referred to Suit No.1262 of 2007 filed by M/s. Elektronik Lab & others against the petitioner and others before the High Court of Judicature at Bombay. From the averments made in the said civil proceedings, learned counsel pointed out that in the said civil proceedings the case of the respondent No.2 is that the respondent No.2 has executed the power of attorney on 11.10.2003 in favour of the petitioner. Learned counsel referred to para 14, 24 to 26 of the plaint and submitted that it is the specific case of the respondent No.2 that a power of attorney dated 11.10.2003 was executed by the plaintiff Nos. 2 and 3 as partners of plaintiff no.1 firm on one hand and defendant No.1 (present petitioner) on the other hand. Learned counsel further submitted from the averments made in the said plaint that it is the case of the respondent No.2 herein in the said proceedings that the petitioner was not acting in the interest of the respondent No.2 and therefore the said power of attorney came to be terminated by letter dated 25.05.2005. Learned counsel thereafter referred to the criminal complaint filed by M/s. Elektronik Lab against the petitioner and others before the learned Chief Metropolitan Magistrate Court, Bombay. The said complaint is filed for the offences punishable under Sections 403, 405, 406, 418, 419, 420 read with Section 34 and 120B of the Indian Penal Code. Learned counsel referred to para 7 and 14 of the said complaint, wherein the present respondent No.2 – the original complainant has stated that relying upon the representation made by the present petitioner, the complainant firm executed a power of attorney dated 11.10.2003 in favour of accused No.1 i.e. the present petitioner. Learned counsel referred to para 7 and 14 of the said complaint, wherein the present respondent No.2 – the original complainant has stated that relying upon the representation made by the present petitioner, the complainant firm executed a power of attorney dated 11.10.2003 in favour of accused No.1 i.e. the present petitioner. In the said proceedings also it is further stated that the complainant was left with no choice but to terminate the power of attorney given to the accused No.1 by letter dated 25.05.2005. Relying upon the said averments made by the respondent No.2 complainant before the Bombay High Court in civil proceedings in the civil suit as well as before the Chief Metropolitan Magistrate Court, Bombay in the complaint, learned counsel submitted that the allegations made by respondent No.2 in the impugned FIR against the present petitioner that he has forged the power of attorney dated 11.10.2003 are prima facie not believable and these allegations are nothing but an afterthought. Learned counsel further submitted that when the civil proceedings initiated by the respondent No.2, which have been now transferred to the concerned Arbitrator for deciding the dispute between the parties, are pending before the Arbitrator, the impugned FIR is nothing but the gross abuse of process of the Court and therefore the impugned FIR be quashed and set aside qua the petitioner. From the proceedings pending before the Arbitrator, learned counsel pointed out the reply submitted on behalf of the firm Elektronik Lab, wherein, in para 15, it is specifically stated that “it is true that the power of attorney dated 11th October 2003 was executed.” Learned counsel further referred to the counter claim filed by the respondent No.2 on behalf of M/s. Elektronik Lab and referred to para 13 of the said counter claim, wherein also the respondent No.2 has admitted that the power of attorney was executed on 11th October 2003 in favour of the resent petitioner. Learned Senior Counsel further submitted that respondent No.2 complainant has suppressed this material fact in the impugned FIR i.e. the pendency of civil proceedings before the learned Arbitrator as well as the criminal complaint pending before the concerned Court at Bombay and therefore on the ground of suppression of material fact, the impugned FIR be quashed and set aside. 4. Learned counsel thereafter submitted that there is a gross delay in lodging the impugned FIR. 4. Learned counsel thereafter submitted that there is a gross delay in lodging the impugned FIR. It was pointed out that the FIR is filed on 29.09.2011 for the alleged incident which took place between 11.10.2003 to 22.09.2006 and learned Senior Counsel submitted that there is a gross delay of more than 8 years. It is further pointed out from the contents of the FIR that no explanation is given by the respondent No.2 complainant for delay in lodging the said FIR and therefore when there is unexplained delay in lodging the FIR, the impugned FIR be quashed and set aside. 5. Learned Senior Counsel further submitted that ingredients of the alleged offences are not made out on bare reading of the impugned FIR. The petitioner has acted within his authority and therefore there is no question of criminal breach of trust as alleged by the respondent No.2 in the impugned FIR. It was pointed out from the contents of the FIR that there is no allegation against the petitioner that he wanted to cheat the respondent No.2 right from the beginning. In absence of such averments, the impugned FIR qua offence punishable under Section 420 of the IPC is required to be quashed and set aside. Learned Senior Counsel further submitted that Section 406 and 420 of IPC cannot go together. He further submitted that the allegations made by the respondent No.2 that he did not remain present before the Notary at Ahmedabad for executing the power of attorney is nothing but an afterthought and such type of averments are not made by the respondent No.2 in the civil proceedings initiated by him before the Bombay Court as well as in the criminal complaint filed by him before the Court concerned at Bombay. Thus, the said allegations are required to be discarded. Learned Senior Counsel relied upon the decision rendered by the Hon’ble Supreme Court in the case of Rajiv Thapar & Ors. v. Madan Lal Kapoor, reported in (2013) 3 SCC 330 . Thus, the said allegations are required to be discarded. Learned Senior Counsel relied upon the decision rendered by the Hon’ble Supreme Court in the case of Rajiv Thapar & Ors. v. Madan Lal Kapoor, reported in (2013) 3 SCC 330 . Relying upon the observations made by the Hon’ble Supreme Court in para 29 and 30 of the said decision, learned Senior Counsel submitted that if the answer to all the steps which are referred to in para 30.1 to 30.4 is in affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of powers vested in it under Section 482 CrPC. Learned counsel thereafter referred to the decision rendered by the Hon’ble Supreme Court in the case of Amitbhai Anilchandra Shah v. Central Bureau of Investigation & Anr., reported in (2013) 6 SCC P.348. Learned counsel further relied upon the oral judgment dated 19.12.2014 passed by this Court in Criminal Misc. Application No.6152 of 2010 and submitted that the High Court must see whether the dispute which is essentially a civil nature is given a cloak of criminal offence, under such situation, if the civil remedy is available and is in fact adopted, the High Court should not hesitate to quash the criminal proceedings to prevent the abuse of process of the Court. Learned Senior Counsel for the petitioner also relied upon the observations made by the Hon'ble Supreme Court in para 12 and 13 of the decision rendered in the case of B. Suresh Yadav v. Sharifa Bee & Anr., reported in 2008 (1) G.L.H. 401 (SC). Learned Senior Counsel also relied on the observations made by the Hon'ble Supreme Court in para 7 of the decision rendered in the case of K.L.E. Society v. Siddalingesh, reported in 2008 (3) G.L.H. 221 (SC). Learned Senior Counsel further relied on the decision of the Hon'ble Supreme Court rendered in the case of Kishan Singh (D) through L. Rs. v. Gurpal Singh & Ors. reported in AIR 2010 SC 3624 and submitted that if there is delay in filing the FIR and delay is not properly explained and if it is alleged that the same is filed with a sole intention of harassing the accused, it can be said to be an abuse of process of law and therefore FIR can be quashed. 6. reported in AIR 2010 SC 3624 and submitted that if there is delay in filing the FIR and delay is not properly explained and if it is alleged that the same is filed with a sole intention of harassing the accused, it can be said to be an abuse of process of law and therefore FIR can be quashed. 6. Learned counsel lastly relied upon the decision rendered by this Court in the case of Arvindbhai Maganlal Master & Anr. v. State of Gujarat & Anr., reported in 2015 (1) G.L.H. 149 and submitted that if it is the case of the complainant that the offence of criminal breach of trust is committed by the accused, then in the same breath it cannot be said that the accused has also committed the offence of cheating. Learned counsel further relied on the observations made in para 42 and 43 of the said decision and submitted that prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Thus, the learned Senior Counsel submitted that the impugned FIR is nothing but a gross abuse of process of the Court and therefore to secure the ends of justice, this Court may quash and set aside the impugned FIR in the interest of justice. 7. On the other hand, learned advocate Mr. Dharmesh V. Shah for the respondent No.2 – original complainant submitted that the alleged offences are punishable for more than 7 years and therefore as per Section 468 of the Code, if the offence is punishable for the imprisonment exceeding 7 years, there is no bar of limitation, in other words, for such offences, period of limitation is not prescribed for registration of the FIR. Learned advocate further submitted that the respondent No.2 complainant came to know about the illegalities committed by the petitioner in July 2010 and therefore he addressed a communication dated 06.07.2010 to the Branch Manager of Union Bank of India, whereby the respondent No.2 has asked for certain information from the said Manager. In pursuant to the said request, information including the documents were supplied to the respondent no.2 by the said bank and therefore at that time he came to know about the alleged transactions. In pursuant to the said request, information including the documents were supplied to the respondent no.2 by the said bank and therefore at that time he came to know about the alleged transactions. He submitted that though the power of attorney dated 11.10.2003 was signed by the partners of the firm at Mumbai, the said document was not notarized at Mumbai and as per the terms and conditions, MOU was required to be executed. However, though MOU was not executed the petitioner got the said power of attorney signed or sealed by the Notary at Ahmedabad and certain pages are also created in absence of the partners of Elektronik Lab and therefore the said power of attorney is forged. When the respondent No.2 came to know about the said power of attorney somewhere in the year 2010, immediately he gave a written complaint before the concerned Police Inspector of Karanj Police Station on 04.03.2011, which is produced at page 338 of the compilation. Learned advocate referred to the said written complaint and submitted that when the said written complaint was given to the said officer, he inquired into the said complaint and submitted a report wherein it is specifically stated that the illegal power of attorney was executed and relying upon the same the accounts were opened in the name of the partnership firm of respondent No.2. Learned advocate further referred to another report submitted by the P.S.I., Khanpur Police Chowki, Shapur Police Station. There also he has given the report in favour of the respondent No.2. Learned advocate for the respondent No.2 further referred to page 362 i.e. the interim report dated 17.09.2011 submitted by the Assistant Police Commissioner, C Division, to Police Commissioner, Ahmedabad City, wherein he has observed that the respondent No.2 complainant came to know about the alleged transaction in the year 2010 i.e. after the civil cases are transferred to the learned Arbitrator and therefore appropriate proceedings can be initiated against the concerned persons. Thus, the learned advocate for the respondent No.2, relying upon three reports submitted by the different police officers, submitted that when prima facie the case against the petitioners and others was made out in the written complaint given by the respondent No.2, the FIR is registered before the Shahpur Police Station and therefore there is no delay in filing the said FIR as argued by the learned Senior Counsel for the petitioner. 8. Learned advocate for the respondent No.2 further referred to the interim report dated 19.01.2012 given by the Investigating Officer to the office of the Public Prosecutor, High Court of Gujarat, Ahmedabad, which is produced at page 393 with the compilation. By referring the said document/report, learned advocate submitted that prima facie it is clear that the concerned officer of the bank had opened the account in violation of the KYC guidelines issued by the RBI for opening a new account and even though required documents were not produced before the concerned bank officer, the account in the name of partnership firm of Elektronik Lab was opened by the petitioner and thereby illegality is committed by the concerned persons. 9. Learned advocate for the respondent No.2 further submitted that this Court while deciding the petition under Article 226 of the Constitution of India or an application filed under Section 482 of the Code, cannot look into the documents/defence produced by the petitioner along with the petition and therefore the reliance placed by the learned Senior Counsel for the petitioner on the documents produced with this petition may not be considered by this Court. Learned advocate further submitted that even the bank officers and other persons are involved in the aforesaid transaction and therefore this Court may not interfere with the investigation at this stage. Learned advocate relied upon the decision rendered by the Hon’ble Supreme Court in the case of N. Soundaram v. P.K. Pounraj & Anr., reported in (2014) 10 SCC 616 and submitted that the powers under Section 482 of the Code has to be exercised sparingly and cautiously to prevent abuse of process of Court and to secure ends of justice. Inherent power should not be exercised to stifle a legitimate prosecution. High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Learned advocate relied upon para 13 of the said decision. 10. Inherent power should not be exercised to stifle a legitimate prosecution. High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Learned advocate relied upon para 13 of the said decision. 10. Learned advocate further relied upon the decision rendered by the Hon’ble Supreme Court rendered in the case of Binod Kumar & Ors. v. State of Bihar & Anr., reported in (2014) 10 SCC 663 and more particularly relying upon para 10(12)(iv), submitted that a given set of facts may make out purely a civil wrong or purely a criminal offence or civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. He further submitted that as the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. 11. Learned advocate for the respondent No.2 further relied upon the decision of the Hon’ble Supreme Court in the case of Gunmala Sales Pvt. Ltd. v. Anu Mehta & Ors., reported in (2015) 1 SCC 103 and submitted that in the said case the Hon’ble Supreme Court once again held that the power u/s. 482 of the Code for quashment of criminal complaint should be exercised sparingly. Mini trial or roving inquiry not contemplated while exercising powers under the aforesaid Section. Learned advocate for the respondent No.2 further submitted that the decision given by the Hon’ble Supreme Court in the case of Rajiv Thapar (Supra) is not applicable to the facts and circumstances of the present case. Similarly, the decision relied upon by the learned counsel for the petitioner even in the case of Amitbhai Anilchandra Shah (Supra) is also not applicable as both the transactions are separate transactions. 12. Learned advocate also contended that the documents produced by the petitioner along with the petition cannot be looked into by this Court while exercising the powers under Section 482 of the Code and under Article 226 of the Constitution of India. 13. 12. Learned advocate also contended that the documents produced by the petitioner along with the petition cannot be looked into by this Court while exercising the powers under Section 482 of the Code and under Article 226 of the Constitution of India. 13. Learned advocate for the respondent No.2 has pointed out from page 320 of the document, supplied by the Union Bank of India to respondent No.2 and submitted that from the said Statement of Account it appears that the entries are not matching and therefore the petitioner and other persons have violated the provisions of different Acts including the Income Tax, etc. 14. Learned APP Ms. Punani adopted the arguments canvassed on behalf of the learned advocate for respondent No.2. She further pointed out from the record that the detail investigation is required looking to the facts of the present case and therefore the report was submitted by the concerned I.O. before this Court and therefore this petition is required to be dismissed. 15. Having heard the learned counsel for the parties and having gone through the documents produced on record, following facts emerge from the record: 15.1. That M/s. Elektronik Lab, a partnership firm and its two partners including respondent No.2 have initiated civil proceedings by filing Civil Suit No.1262 of 2007 before the High Court of Judicature at Bombay against the petitioner and two others. In the said civil proceedings, the respondent No.2 has specifically stated in para 4 as under: “4. The Plaintiffs and Defendant No.2 after due negotiations with the plaintiffs had entered into an agreement dated 16th May 2002 wherein the plaintiffs were to be paid a consideration of Rs.2,91,000/(Rupees Two lakhs ninety one thousand only) per month from Defendant No.2 for manning the Vessel Traffic Management at Magdalla, Suart which was excluding supply of equipments. The said agreement with Defendant No.2 also required a Bank guarantee to be given for Rs.5,00,000/which the plaintiffs had given and the plaintiffs under the said contract were entitled to receive from the defendant No.2 Rs.2,91,000/per month for the services rendered. The said agreement with Defendant No.2 also required a Bank guarantee to be given for Rs.5,00,000/which the plaintiffs had given and the plaintiffs under the said contract were entitled to receive from the defendant No.2 Rs.2,91,000/per month for the services rendered. Hereto annexed and marked Exhibit 'A' is a copy of the said agreement entered into between the Defendant No.2 and the plaintiffs which was renewed from time to time and is operative till date.” 15.2 In the said proceedings, in para 14, it is further stated that: “The Defendant No.1 represented to the Plaintiffs that he required power of attorney to do all acts on behalf of the plaintiffs. A power of attorney dated 11th October, 2003 was sent to the Plaintiffs at Bombay and the same was executed on 11th October, 2003 by the plaintiffs Nos. 2 and 3 as partners of plaintiff No.1 on one hand and Defendant No.1 on the other hand to do all acts on behalf of Plaintiff No.1 at Ahmedabad............” 15.3. In para 24, it is further stated that: “24. The plaintiffs say that in spite of the meeting hereinabove referred to as well as the deliberations made by the plaintiffs as well as Defendant No.3, the Plaintiffs says that Defendant No.1 was not at all transparent in his business dealings. They found that Defendant No.1 was operating the business under the power of attorney dated 11th October, 2003 given as hereinabove stated by the plaintiffs..................” 15.4. It is further stated in para 25 that: “25. The plaintiffs further found that there was no other alternative but to terminate the power of Attorney given by the Plaintiffs to Defendant No.1 by their letter of 11th October, 2003. Accordingly, the Plaintiffs terminated the said Power of Attorney by their letter dated 25th May 2005................” 15.5. It is also stated in para 26 of the said proceedings that: “26. The plaintiffs say that Defendant No.1 had received the said letter dated 25th May, 2005 terminating his agency. The plaintiffs say that thereafter they received several phone calls from Defendant No.1, repenting and apologizing for the acts he had done. It is also stated in para 26 of the said proceedings that: “26. The plaintiffs say that Defendant No.1 had received the said letter dated 25th May, 2005 terminating his agency. The plaintiffs say that thereafter they received several phone calls from Defendant No.1, repenting and apologizing for the acts he had done. The Plaintiffs, initially ignored but then realize that Plaintiffs had no accounts/details of the entire business carried on by Defendant No.1 on behalf of Plaintiffs and since lots of money and investment was already done by Plaintiffs, the Plaintiffs then decided to allow Defendant No.1 to continue the said business for a short term in order to settle the accounts and to realize the investments already invested by plaintiffs and also to defect fraud in respect of imports, if any committed by Defendant No.1. The Plaintiffs say that they also received a temptation from Defendant No.1 about the new business opportunity, and came forward with a different proposal to form a new company or a joint venture in the form of partnership.” 15.6. In the said civil suit the plaintiffs have prayed that defendant No.1 (present petitioner) be ordered and decreed to render accounts of all businesses done by defendant No.1 as an agent of plaintiff No.1 in the name of “Elektronik Lab” from May, 2002 till the date of filing of the suit. 15.7. The said civil proceeding is transferred to the learned Arbitrator with the consent of the parties and the proceedings are pending before the learned Arbitrator. In the said proceedings also in the counterclaim, respondent No.2 has made the following submissions: “13. The Respondent represented to the Claimants that he required Power of Attorney to do all acts on behalf of the Claimants. A Power of Attorney dated 11th October, 2003 was executed by Claimants at Bombay and the same was executed on 11th October 2003 by Claimants No.2 and 3 as partners of the Claimant firm.........” 15.8. It also appears from the record that a criminal complaint is also filed by M/s. Elektronik Lab, wherein, the respondent No.2 herein is one of the partners. The said complaint is filed on 06.05.2008 before the learned Chief Metropolitan Magistrate Court, Bombay. In the said criminal complaint, in para 7, it is stated as under: “7. I say that the said agreement with Gujarat Maritime Board was further extended and renewed from time to time. The said complaint is filed on 06.05.2008 before the learned Chief Metropolitan Magistrate Court, Bombay. In the said criminal complaint, in para 7, it is stated as under: “7. I say that the said agreement with Gujarat Maritime Board was further extended and renewed from time to time. The Bank Guarantee which was required to be given to Gujarat Maritime Board was also from time to time given by Complainant from Mumbai. The said Accused No.1 then represented to the Complainant firm that he would require a Power of Attorney in his favour to do all acts on behalf of complainant firm and expressed his daytoday difficulties in executing correspondence on behalf of Complainant firm. Believing his representation and for facilitating the day to day business, the complainant firm executed a Power of Attorney dated 11th October, 2003 in favour of Accused No.1. The said Power of Attorney clearly stipulated in Clause 14.........................” 15.9. In the said complaint, in para 14, it is stated as under: “14. The Complainant states that despite the above the Accused No.1 continued to do business as agent of the Complainant by using Power of Attorney dated 11th Oct., 2003. The complainant was left with no choice but to terminate the Power of Attorney given to the Accused No.1 by their letter dated 25th May, 2005...................” 16. In the civil proceedings as well as in the complaint filed by the respondent No.2 before the competent Court at Bombay, he has not at all alleged that petitioner has forged the aforesaid Power of Attorney dated 11.10.2003 and therefore at this belated stage, it cannot be said that the said document is forged document when respondent No.2 himself is relying upon the said document. 17. The respondent No.2 has not at all stated about the pendency of these proceedings in the impugned FIR which is filed on 29.09.2011 and therefore it is clear from the record that respondent No.2 has suppressed this material fact and therefore it can be said that the impugned FIR is gross abuse of process of the Court and is filed with mala fide intention. 18. The learned advocate for respondent No.2 has placed reliance on the reports submitted by the concerned Police Officers. 18. The learned advocate for respondent No.2 has placed reliance on the reports submitted by the concerned Police Officers. However, it is noteworthy at this stage that it was the specific case of the respondent No.2 in the proceedings initiated by him in the concerned Courts that the partners of the partnership firm have executed the Power of Attorney on 11.10.2003 in favour of the petitioner and therefore the said reports are required to be ignored, and more particularly when the respondent No.2 has not disclosed correct facts before the said Police Officers. 19. It also appears from the record that there is a delay of more than 8 years in filing the impugned FIR and when there is no explanation for filing the said FIR at belated stage, the said delay can be said to be fatal to the prosecution as observed by this Court in the decision rendered in the case of Arvindbhai Maganlal Master (Supra). Learned advocate for the respondent No.2 has tried to explain the delay in lodging the FIR by submitting that the respondent No.2 came to know about the forged power of attorney somewhere in July 2010 and therefore he immediately inquired from the concerned bank. When the concerned bank supplied the documents to he respondent No.2, at that time, he came to know about the socalled forgery committed by the petitioner and thereafter he immediately filed the FIR. However, if the aforesaid explanation rendered at the time of hearing of this petition is seen in light of the averments made by the respondent No.2 in the civil proceedings in the year 2007, it is crystal clear that this explanation is not required to be accepted, more particularly in view of para 4 of the Civil Suit No.1262 of 2007. 20. Even in the criminal complaint filed by the partnership firm against the petitioner and others before the Addl. Chief Metropolitan Magistrate Court at Bombay, in para 19, the respondent No.2 himself has stated that: “19. I say that in/or about June 2006, myself (i.e. complainant) partner of the Complainant in order to ascertain the correct facts, visited several banks at Ahmedabad (Viz; Central Bank of India, Union Bank, Khanpur Branch, P.A. Estate Agency Blgd., opp. Cama Hotel, Khanpur Ahmedabad – 380001 A/c. No.361501010015006 and ICICI Bank at JMC House, Opp. I say that in/or about June 2006, myself (i.e. complainant) partner of the Complainant in order to ascertain the correct facts, visited several banks at Ahmedabad (Viz; Central Bank of India, Union Bank, Khanpur Branch, P.A. Estate Agency Blgd., opp. Cama Hotel, Khanpur Ahmedabad – 380001 A/c. No.361501010015006 and ICICI Bank at JMC House, Opp. Parimal Garden, Off C.G.Road380006, A/c. No.002405006638) in order to verify the accounts in the name of the Complainant. I say that Mr. Bahadur Sanjana visited Ahmedabad and to his surprise it was found that Accused No.1 was acting as a sole proprietor in the name of Electronik Lab (Complainant). I say that I found that accused No.1 had opened the above Bank Accounts in the name of Electronik Lab but was operating the said accounts as sole proprietor. I say that we thus realize that because of accused No.1 opening the Bank Accounts in the name of Electronik Lab as sole proprietor, the accused No.1 siphoned away the entire Manning/serving charges of Rs.2,91,000/per month received from Gujarat Maritime Board.............” 21. Thus, the complainant in the year 2008 has specifically stated that in June 2006, the complainant, in order to ascertain the correct facts and to verify the accounts in the name of the Complainant, visited several banks at Ahmedabad viz. Central Bank of India, Union Bank, Khanpur Branch and ICICI Bank, at that time, he came to know about the fact that the accused No.1 had opened the account in the above banks in the name of M/s. Elektronik Lab but he was operating the said account as a sole proprietor. Thus, from the averments made by the respondent No.2 in the said complaint, the explanation given by the learned advocate for respondent No.2 that he came to know about the alleged transaction in the year 2010 is not required to be believed and it is nothing but an afterthought. Thus, there is a gross unexplained delay in filing the impugned FIR and therefore also it is required to be quashed and set aside. 22. This Court, in the decision rendered in the case of Arvindbhai Maganlal Master (Supra), in para 42 and 43, has observed as under: “42. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. 22. This Court, in the decision rendered in the case of Arvindbhai Maganlal Master (Supra), in para 42 and 43, has observed as under: “42. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710]. 43. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases, the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before a civil court may initiate criminal proceedings just to harass the other side with a malafide intention or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710].” 23. Moreover, the Hon’ble Supreme Court, in the decision rendered in the case of B. Suresh Yadav (Supra), in para 12 and 13, has observed as under: “12. While executing the sale deed, the appellant herein did not make any false or misleading representation. (vide : Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710].” 23. Moreover, the Hon’ble Supreme Court, in the decision rendered in the case of B. Suresh Yadav (Supra), in para 12 and 13, has observed as under: “12. While executing the sale deed, the appellant herein did not make any false or misleading representation. There had also not been any dishonest act of inducement on his part to do or omit to do anything which he could not have done or omitted to have done if he were not so deceived. Admittedly, the matter is pending before a competent civil court. A decision of a competent court of law is required to be taken in this behalf. Essentially, the dispute between the parties is a civil dispute. 13. 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 or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance. Had the fact as purported to have been represented before us that the appellant herein got the said two rooms demolished and concealed the said fact at the time of execution of the deed of sale, the matter might have been different. As the deed of sale was executed on 30.9.2005 and the purported demolition took place on 29.9.2005, it was expected that the complainant/first respondent would come out with her real grievance in the written statement filed by her in the aforementioned suit. She, for reasons best known to her, did not choose to do so.” 24. The Hon'ble Apex Court, in the decision rendered in the case of K.L.E. Society (Supra), in para 7, has observed as under: “7. One thing is clear on reading of High Court’s reasoning that the High Court came to the conclusion that deductions were made without any rhyme and reason and without any basis. The Hon'ble Apex Court, in the decision rendered in the case of K.L.E. Society (Supra), in para 7, has observed as under: “7. One thing is clear on reading of High Court’s reasoning that the High Court came to the conclusion that deductions were made without any rhyme and reason and without any basis. That was not the case of the complainant. On the other hand, it tried to make out a case that the deduction was made with an object. That obviously, was the foundation to substantiate claim of entrustment. On a close reading of the complaint it is clear that the ingredients of Sections 403, 405 and 415 do not exist. The statement made in the complaint runs contrary to the averments made in the petition in terms of Section 33(C) (2).” 25. In view of the aforesaid facts and circumstances of the present case, it is clear that the impugned FIR is nothing but gross abuse of process of the Court and it is filed with mala fide intention. 26. Even this Court in the decision rendered in the case of Khandubhai Poonabhai Tandel v. State of Gujarat & Anr. in Criminal Misc. Application No.6152 of 2010, after considering the various decisions rendered by the Hon’ble Supreme Court, held in para 14 as under: “14. From the decision of the Hon'ble Supreme Court referred to hereinabove, it is clear that while exercising the jurisdiction under Section 482 of the Criminal Procedure Code, the High Court has to be cautious and such power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. A complaint disclosing civil transactions may also have a criminal texture. A complaint disclosing civil transactions may also have a criminal texture. I am conscious of the aforesaid ratio laid down by the Hon'ble Supreme Court in the various decisions, however, at the same time, the Hon'ble Supreme Court has further observed that “but the High Court must see whether dispute which is essentially a civil nature is given a cloak of criminal offence, in such a situation, if a civil remedy is available and is in fact adopted, the High Court should not hesitate to quash criminal proceedings to prevent the abuse of process of Court.” If the ratio laid down by the Hon'ble Supreme Court is applied in the present case, it is clear that the complainant has not at all initiated any civil proceedings though the dispute is of a civil nature and as observed hereinabove the complainant ought to have initiated the civil proceedings for cancellation of the sale deed executed by the applicant as a power of attorney holder of the complainant. But, he has chosen not to initiate the same instead he filed the impugned complaint with a view to pressurize the applicant with a mala fide intention and with a view to harass him after receipt of the total amount of Rs.9,89,000/(with interest) and that too by suppressing the material fact with regard to the sale deed executed by the applicant in favour of Naynaben on 27.05.2005. Therefore, there is a gross delay in filing the FIR, which is unexplained.” 27. The contention taken by the learned advocate for the respondent No.2 that the documents produced by the petitioner along with the petition cannot be looked into by this Court while exercising the powers under Section 482 of the Code and under Article 226 of the Constitution of India. However, I have referred to and rely upon the documents produced by the petitioner, which are the proceedings initiated by the respondent No.2 himself before the Courts at Bombay. It is not the case of the respondent No.2 that he has not initiated such type of proceedings against the petitioner and others before the Court at Bombay and therefore when these documents are not in dispute, this Court can certainly look into and rely upon the same. 28. Learned advocate for the respondent No.2 has submitted that the petitioner has already filed Criminal Misc. 28. Learned advocate for the respondent No.2 has submitted that the petitioner has already filed Criminal Misc. Application No.1324 of 2014 before the High Court of Bombay for quashing and setting aside the complaint filed by the respondent No.2 before the Metropolitan Magistrate Court at Bombay and submitted that in the said proceedings, the present petitioner has taken a contention that the entire dispute has arisen outside the territorial jurisdiction of the learned Metropolitan Magistrate Court at Bombay and therefore the said complaint be quashed and set aside. Now, when the said proceedings are pending before the High Court at Bombay, it is not proper for this Court to give any opinion or decision with regard to the said proceedings. 29. Now, so far as the decision relied upon by the learned advocate for respondent No.2 in the case of Gunmala Sales Pvt. Ltd. (Supra), is concerned, in para 34.4, the Hon'ble Supreme Court has observed as under: “34.4. No restriction can be placed on the High Court’s powers under Section 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of the Court. There are no fixed formulae to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. The High Court at that stage does not conduct a mini trial or roving inquiry, but, nothing prevents it from taking unimpeachable evidence or totally acceptable circumstances into account which may lead it to conclude that no trial is necessary qua a particular Director.” 29.1. Thus, the Hon'ble Supreme Court in the aforesaid decision, on the contrary, observed that no restriction can be placed on the High Court’s powers under Section 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of the Court. There are no fixed formula to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of the Court. There are no fixed formula to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. Moreover, the Hon'ble Supreme Court observed that that the High Court at that stage does not conduct a mini trial or roving inquiry, but, nothing prevents it from taking unimpeachable evidence or totally acceptable circumstances into account which may lead it to conclude that no trial is necessary qua a particular Director. Thus, if the ratio laid down by the Hon'ble Supreme Court is applied in the present case, it is clear that relying upon the averments made by respondent No.2 himself in criminal as well as civil proceedings initiated before the Courts at Bombay, the case of the petitioner is that the respondent No.2 complainant has taken different stand in the impugned FIR by suppressing the material facts and therefore in the facts and circumstances of the present case, I am of the opinion that the impugned FIR is nothing but gross abuse of process of the Court. Thus, in my opinion, the aforesaid decision is not helpful to respondent No.2. 30. Moreover, in the decision of the Hon'ble Supreme Court rendered in the case of N. Soundaram (Supra) and relied upon by the learned advocate for respondent No.2, the Hon'ble Supreme Court has reiterated the principles for quashing and setting aside the FIR while exercising powers under Section 482 of the Code. The Hon'ble Supreme Court, in para 13, observed thus: “13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautionary to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana v. Bhajan Lal 6] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. [See State of Haryana v. Bhajan Lal 6] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 CrPC [See MCD v. Ram Kishan Rohtagi.] An investigation should not be shut out at the threshold if the allegations have some substance [See Vinod Raghuvanshi v. Ajay Arora.]” 31. In the facts and circumstances of the present case, as observed hereinabove, when the impugned FIR is filed after a period of more than 7 years, that too, by suppressing the material facts and by taking contrary stand which the respondent No.2 has taken in the proceedings initiated before civil as well as criminal Courts at Bombay, I am of the opinion that the impugned FIR is nothing but a gross abuse of process of the Court and therefore the powers under Section 482 of the Code coupled with Article 226 of the Constitution of India can be exercised by this Court. 32. Learned advocate for respondent No.2 has further relied upon the decision rendered by the Hon'ble Supreme Court in the case of Binod Kumar & Ors. (Supra) The Hon'ble Supreme Court, in the said decision, has reiterated the guidelines for exercise of powers under Section 482 of the Code. However, if the said decision is carefully seen, the Hon'ble Supreme Court, relying upon its earlier decision rendered in the case of Indian Oil Corporation v. NECP India Ltd., reported in (2006) 6 SCC 736 , in para 10, discussed the relevant principles, which read as under: (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. 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. 33. Thus, in the facts of the aforesaid case, the Hon'ble Supreme Court was of the opinion that no case of criminal breach of trust or dishonest intention of inducement is made out and the essential ingredients of the alleged sections are missing and therefore the FIR was quashed by the Hon'ble Supreme Court in the said case. The Hon'ble Supreme Court in para 20 observed that the parties are at liberty to work out their remedy in the civil suits which they have already had recourse to. 34. Thus, in the present case also when the impugned FIR is filed with a malafide intention after a period of 7 years by suppressing the material facts and taking contrary stand, which the respondent No.2 has taken in the civil as well as criminal proceedings initiated by him before the concerned Courts at Bombay, I am of the opinion that the impugned FIR is required to be quashed and set aside and therefore the aforesaid decision relied upon by the respondent No.2 is not helpful to the respondent no.2. 35. 35. In view of the aforesaid observations and more particularly from bare reading of the impugned FIR coupled with the aforesaid assertions made by the respondent No.2 himself in civil as well as criminal proceedings, when the ingredients of the alleged offence are not made out and when the civil proceeding initiated before the High Court of Judicature at Bombay and thereafter transferred to the learned Arbitrator, is already pending, it appears that the respondent No.2 is trying to give a cloak of criminal offence to the dispute, which is essentially of a civil nature and when the complainant has suppressed the material facts while lodging the FIR, in the opinion of this Court, the impugned FIR is required to be quashed and set aside to secure the ends of justice. 36. The petition is allowed. The FIR being C.R.No.I136/2011 registered with Shahpur Police Station is hereby quashed and set aside qua the petitioner only. Rule is made absolute. 37. In view of the fact that the main petition is disposed of, Criminal Misc. Application No.754 of 2015 does not survive and it is disposed of. However, learned advocate for respondent No.2 has submitted that though the stay was granted by this Court qua the petitioner only, the Investigating Officer was not carrying out the investigation qua other accused and therefore the Investigating Officer be directed to carry out the investigation so far as the other accused are concerned. 38. In this view of the matter, it is open for the respondent No.2 to submit an application before the Investigating Officer in this regard and if such an application is given, it is open for the Investigating Officer to consider the same in accordance with law without being influenced by this order.