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Gujarat High Court · body

2017 DIGILAW 1647 (GUJ)

Kalpesh Naginbhai Shah v. State of Gujarat

2017-09-14

B.N.KARIA

body2017
JUDGMENT : B.N. Karia, J. This application has been filed by the applicants/original accused under section 482 of the Code of Criminal Procedure, 1973 (for brevity "CrPC") praying to quash and set side the complaint, being C.R. No. I-63 of 2013 registered with Nadiad Town Police Station, Nadiad for an offence punishable under Sections 120(B), 255, 260, 406, 418, 423, 465, 467, 468, 471, 475 of the Indian Penal Code. 2. Brief facts of the impugned complaint are that in the year 2009-10, the daughter of the complaint when was studying with daughter of the accused no.1 and because of that the accused and the complainant came in contact with each other and they increased their family relation as well as they created relation with father-in-law of the complainant and in the month of April 2010, the accused persons came to the house of the complainant, when his father-in-law was present and stated that they have filled in a tender regarding photo ration card for Nadiad and Anand Districts and in this regard, they are in need of Rs. 65,00,000/- and accused no.1 gave lure about getting huge benefit thereon and by keeping trust upon the accused persons, complainant gave an amount of Rs. 65,00,000/- by way of cheque and cash and by stating the said fact, they once again got Rs. 30,00,000/- and also got Rs. 7,00,000/- from relative of the complainant and while asking about receipt of payment by them before the Collector office at that time, they gave original receipt dated 25.05.2010 having seal and signature of District Election Officer and Collector, Kheda and gave assurance that such amount has been deposited before the office and they have started work upon it. 2.1 Thereafter, accused no.1 was arraigned in a case of creating bogus documents of the office of the Collector for getting loan from Oriental Bank of Commerce and he was sent to judicial custody, and therefore, the accused no.2 and his henchmen Bhaumikbhai met the complainant to get Rs. 4,00,000/- for taking out accused no.1 from judicial custody and stated that whenever accused no.1 will come outside then they will pay such amount and beyond that the complainant had paid Rs. 4,00,000/- more for initiating bail proceeding for release of the accused no.1 from jail. 4,00,000/- for taking out accused no.1 from judicial custody and stated that whenever accused no.1 will come outside then they will pay such amount and beyond that the complainant had paid Rs. 4,00,000/- more for initiating bail proceeding for release of the accused no.1 from jail. Thereafter, when accused no.1 was released on bail, at that time, complainant demanded back his money and therefore, they issued five cheques of various dates, but while depositing such cheques in the bank, all these cheques returned with an endorsement 'account is closed'. While making inquiry about tender allotted to him, the complainant found that no tender has been granted in their favour and they have created false receipts under the seal and signature of District Election Officer and Collector Kheda and thereby the accused persons have committed offence of cheating by creating false document and signature etc, and that is how the impugned complaint has been lodged against the present applicants. 3. Heard learned advocate Mr. Nirav C. Thakkar appearing on behalf of the applicants and learned APP Mr. KL Pandya appearing on behalf of the respondent no.1. Though, served, none remained present on behalf of the respondent no.2. 4. Learned advocate Mr. Nirav C. Thakkar appearing on behalf of the applicants has stated that the complaint is bogus, concocted and afterthought and none of the ingredients of offence alleged therein are made out. That, the complainant has lodged more than one complaint for an incident that has admittedly taken place between April 2010 to 26.06.2011 and no satisfactory explanation is given for delay in lodging the impugned complaint. That, the complainant has not disclosed lodging of first complaint before the learned Chief Judicial Magistrate, Nadiad while lodging the subsequent FIR. Various other important facts are also not stated by the respondent no.2 while getting registered the impugned FIR. That, the impugned FIR has been lodged even while the competent Criminal Court was already ceased of the matter and investigation into the same set of allegations was already initiated by the Investigating Agency against the present applicants and other accused persons. Thus, this subsequent complaint in the form of FIR lodged with the Police under section 154 CrPC, 1973 is not maintainable at all. Thus, this subsequent complaint in the form of FIR lodged with the Police under section 154 CrPC, 1973 is not maintainable at all. That, the Police Inspector, Nadiad Town Police Station has conducted inquiry pursuant to an order of the learned Chief Judicial Magistrate under section 202(1) CrPC, 1973 and had reported that there is no evidence in writing regarding any money having been paid by the respondent no.2 to the accused; as alleged in a private complaint made before the learned Chief Judicial Magistrate. That, considering the complaint lodged by the respondent no.2 before the learned Judicial Magistrate (First Class) under sections 138 and 141 of the Negotiable Instruments Act, it can be seen that the respondent no.2 was given a cheque of Rs. 6 lacs only and there is nothing on record about payment of exaggerated amount of Rs. 30 lacs having been made by respondent no.2 to the applicants, as mentioned in the impugned FIR. 5. On the side of the respondent no.1-State, learned APP Mr. KL Pandya has strongly objected submissions made by the learned advocate for the applicants and supported the allegations made in the complaint by the respondent no. 2. It is further submitted that the complaint filed by the respondent no.2 before the learned JMFC at Nadiad under sections 138 and 141 of the Negotiable Instruments Act and Section 114 and 420 of the Indian Penal Code is factually on different cause of action. That, second complaint cannot be compared with the impugned complaint lodged by the complainant. That, in all 2 different cheques were received by the applicant no.1 from the complainant-respondent no.2 and there were different transactions in connection with the business. That, in an inquiry, a report was submitted by the concerned Police Inspector and even thereafter, no evidence is collected. The said inquiry is pending before learned JMFC at Nadiad. That, in the impugned complaint, it is clearly stated at page No. 6 that the cheque issued by the applicant no.1 is different then the complaint lodged under section 138 of the Negotiable Instruments Act ie., Criminal Complaint No. 4426 of 2011 and the said facts require deep investigation and at this stage, it would be premature to accept the prayer of applicants of quashing the impugned complaint. That, after completion of the investigation, if it is found that there is no sufficient evidence, alternative remedy is certainly available with the applicants to approach learned JMFC, where already a complaint is lodged. That, no powers under section 482 CrPC, 1973 may be exercised by this Court at this juncture as prima facie offence is made by the present applicants; as alleged in the complaint. Hence, it was requested by him to dismiss present Application. 6. Nobody appears to respond the application, though served with a notice. As per endorsement made by the Unarmed Head Constable, Nadiad Town City Police Station dated 14th July, 2013, notice as well as order has been duly served upon the respondent no.2 wherein signature has been obtained on 13th July, 2013. Therefore, it can be said that respondent no.2 has chosen not to participate in the proceedings. 7. Having considered the facts of the case and submissions made by learned advocate appearing on behalf of the applicants and learned APP appearing on behalf of the respondent no.1, it appears that impugned complaint, being C.R. No. I- 63 of 2013 was registered with Nadiad Town Police Station for an offence punishable under Sections 120B, 255, 260, 406, 418, 423, 465, 467, 468, 471 and 475 of the Indian Penal Code by the respondent no.2-original complainant against the present applicants on 23rd April, 2013. As per averments made in the complaint, alleged offence was committed from April 2010 to 26th June 2011. No explanation has come forth for causing delay in registering complaint by the respondent no.2. It is stated that the respondent no.2 had given some money to the applicant no.2 in person and thereby, the respondent no.2 came in contact with applicant no.1, as his daughter as well as daughter of the applicant no.1 were studying in a common school namely Saint Anna School in the year 2009-10. As the applicant no.1 was engaged in business of offset printing and had filled in certain tenders in the office of the Collector for government work, the respondent no.2 was informed by the applicant no.1 that work of ration card and election card of the government is given in his favour and therefore, he was in need of some money. As the applicant no.1 was engaged in business of offset printing and had filled in certain tenders in the office of the Collector for government work, the respondent no.2 was informed by the applicant no.1 that work of ration card and election card of the government is given in his favour and therefore, he was in need of some money. It was informed to the respondent no.2 by the applicant no.1 that if he need to invest some money in the business, he would get hefty profit, and therefore, he was lured to make investment. As the applicant no.1 was running business of Ekta Offset Private Limited and he was identified as Director of the Company, was frequently visiting the respondent no.2 and developed a family relationship. On a promise as well as assurance given by the applicants, the respondent no.2 had given huge amount of Rs. 65 lacs by way of cheque, as shown in the complaint as well as cash amount of Rs. 30 lacs. Thereafter, on a request made by the respondent no. 2 to show the receipts of deposit of money with the Government, the applicant no.1 handed over original receipt under the seal and signature of the Election Commissioner as well as Collector, District: Kheda issued in the month of May, 2010. It was further assured by both the applicants that the amount received by them from respondent no.2 was deposited with the office of Collector as security deposit and they have started projected work. Thereafter, it came to the knowledge of respondent no.2 that for forging bogus documents of Collector Office and getting loan from Oriental Bank of Commerce, a compliant was filed against the present applicant no.1, and therefore, the respondent no.2 doubted of the illegal act committed by the applicant no.1, as he was arrested by the Police and for bailing out to the applicant no.1, another amount of Rs. 4 lacs was given by the respondent no.2, so that he would return back the amount given by respondent no.2 to the applicants. 8. It is alleged by the complainant that after release on bail when the respondent no.2 demanded money given to the applicant, he gave five different cheques of different dates on behalf of Ekta Offset Pvt. Ltd under his signature drawn on ICICI Bank of his Current Account No. 026005000991 in favour of father in law of the complainant. 8. It is alleged by the complainant that after release on bail when the respondent no.2 demanded money given to the applicant, he gave five different cheques of different dates on behalf of Ekta Offset Pvt. Ltd under his signature drawn on ICICI Bank of his Current Account No. 026005000991 in favour of father in law of the complainant. All the cheques were returned back with an endorsement of "account closed", and therefore, when the complainant inquired with ICICI Bank, he was informed that the account was already closed on 9th October 2009. As per the contention raised by the complainant the intention of the accused/applicants was malafide from the beginning, and though the account was closed, cheques were issued, forged documents were made to deceive the complainant. That, the accused were knowing that the cheques were not going to be realized, and therefore, offence was committed by the accused. It is further alleged that the amount was received by the present applicants in collision with each other that tenders were sanctioned by the officer of the Collector and security deposit was to be paid to the office. That, no orders were passed by the office of the Collector in favour of the applicants, however, both of them have put their forged signatures with false seals in the name of District Election Officer and Collector, District: Kheda dated 25.05.2010 as well as created a false receipt No. 010362 dated 25.05.2010. Hence, the complaint was filed. 9. It appears from the record-Annexure-B that before lodging the impugned complaint, respondent no.2 filed a complaint before the learned Chief Judicial Magistrate, Nadiad against the present applicants and other accused, who are the family members of the applicants for an offence punishable under sections 120(B), 255, 260, 406, 418, 420, 423, 465, 467, 468, 471 and 475 of the Indian Penal Code. In the said complaint, which was registered as Inquiry Case No. 453/2011, it was alleged that the applicant no.1 by showing certain documents had stated that he had filed a tender for various printing orders of the State Government and he needed to make deposit of certain amount before allotment of tender work to him. The applicant no.1 requested the respondent no.2 for financial help and in return, he agreed to share hefty profit. Due to such representation, the respondent no.2 given huge amount of Rs. The applicant no.1 requested the respondent no.2 for financial help and in return, he agreed to share hefty profit. Due to such representation, the respondent no.2 given huge amount of Rs. 30 lacs to both the applicants and wife of the applicant no.1. It is further alleged in the aforesaid complaint that applicant no.1 forged certain receipts to show to the respondent no.2 that he had made deposit with the State Government and project work was going on. It was only when the applicant no.1 was arrested for an offence registered in the year 2010 that the respondent no.2 came to know about the fraud and cheating committed by applicant no.1 with respondent no.2, and therefore, he filed above mentioned private complaint in the Court of learned Chief Judicial Magistrate, Nadiad, which came to be registered as Inquiry Case No. 453/2011. It appears from this document-Annexure-B that learned Magistrate has directed an inquiry to be conducted under section 202(1) CrPC, 1973 vide order dated 2nd July 2011. It appears from document-Annexure-C that Police Inspector, Nadiad Town Police Station submitted a report dated 28.08.2011 stating that after conducting an inquiry, he could not find any evidence regarding any money paid by the respondent no.2 to the applicant no.1 or other accused. Thereafter, it appears that learned Chief Judicial Magistrate had called upon the respondent no.2 to produce evidence before the Court by separate order dated 27th December 2012. As per information and knowledge of the applicants, no such evidence was produced by the respondent no.2 and the matter is still pending before the court of learned Chief Judicial Magistrate. This fact was not denied by the prosecution. 10. Thereafter, it appears from the record- Annexure-D that the respondent no.2 filed a private complaint before the learned court of Judicial Magistrate (First Class), Nadiad citing similar story alleging that the applicants and other accused shown in the said complaint had given a cheque of Rs. 6 lacs to the respondent no.2. It is further alleged in the said complaint that Rs. 30 lacs were given to the accused and Rs. 65 lacs were received by the accused from the father of the complainant namely Ravjibhai Shankarbhai Patel, as per the details given in the complaint. It is further alleged that one of the relatives namely Sanjaybhai Bhikhubhai Patel had also given Rs. 7 lacs to the applicants. 30 lacs were given to the accused and Rs. 65 lacs were received by the accused from the father of the complainant namely Ravjibhai Shankarbhai Patel, as per the details given in the complaint. It is further alleged that one of the relatives namely Sanjaybhai Bhikhubhai Patel had also given Rs. 7 lacs to the applicants. As per the averments made by applicants, a Civil Suit was filed for recovery of money allegedly given by the said Sanjaybhai against the applicants, which is pending. As the cheque amount of Rs. 6 lacs given to the respondent no.2 in a bid to return the money allegedly given by him to the applicant was dishonoured, and hence, the above said complaint came to be filed alleging an offence punishable under sections 138 and 141 of the Negotiable Instruments Act, 1881and Section 420 and 114 of the Indian Penal Code. The said complaint was registered as Criminal Complaint No. 4426 of 2011, wherein summons to the accused were issued vide order dated 02.08.2011. 11. It appears from the document Annexure-E that in Criminal Complaint No. 4426 of 2011 vide Ex. 17, one application was submitted by the complainant stating that since Inquiry Case No. 453 of 2011 was registered for an offence punishable under Sections 420 and 120(B) etc., of the Indian Penal Code against the accused in Criminal Complaint No. 4426 of 2011. As per statement made in an application Ex. 17, considering the facts and circumstances of the case, it would be better to try said offence by different trials under the provisions of Negotiable Instruments Act and Indian Penal Code. Therefore, under section 218 CrPC, 1973 it was requested to try all the cases in the different Courts under the Negotiable Instruments Act as well as under Indian Penal Code. From the averments made in the application, it is clear that in connection with the said transaction, different complaints were registered by the respondent no.2, two complaints were also filed by the respondent no.2 before the Chief Judicial Magistrate, Nadiad after registration of Criminal Complaint No. 4426 of 2011. Considering the facts of this case, this Court is of the view that the complainant has tried to drag the applicants in criminal proceedings by filling different complaints, though the transaction was common. Considering the facts of this case, this Court is of the view that the complainant has tried to drag the applicants in criminal proceedings by filling different complaints, though the transaction was common. Prima facie, it appears that just to recover the amount allegedly given to the applicants, the respondent no.2 has given criminal colour to the dispute, which appears to be Civil in nature. Relatives of the complainant namely Sanjaybhai, who has also allegedly given Rs. 7 lacs to the applicants by way of loan has also filed a Civil Suit for recovery of amount against the present applicants, which is not denied by the prosecution. Instead of filing a Civil suit by the respondent no.2, he has filed three different complaints out of the same transaction against the present applicants. It is one of the arguments advanced by the learned advocate for the applicants that the applicant no.2 has nothing to do with the transaction, as he was out of India during the said period. He has also produced a copy of VISA. At this juncture, this Court would not like to enter into the merits of this case, though prima facie, this Court is of the opinion that complainant has tried to misuse the process of law by filing three different complaints against the present applicants converting Civil dispute into criminal proceedings. 12. Here, this Court would like to refer to a decision in the case of Minu Kumari & Anr. v. State of Bihar & Ors. reported in (2006) 4 SCC 359 , wherein it is held that; 'section 482 CrPC, 1973 does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision.' 13. The aforesaid circumstances takes this Court to some of the propositions of law laid down by the Apex Court on the issue of exercising powers under section 482 of the Code of Criminal Procedure, 1973 :- (a) In a case reported in 2015 (1) SCC 513 (Rajib Ranjan and Others v. R. Vijaykumar), the Hon'ble Apex Court while dealing with an issue related to civil proceedings vis-a-viz a criminal complaint, propounded a feature analysing the chronology of events and has held that allegations of fabricating records were mischievously made just to give colour of criminality to a civil case and further, the same were made after losing battle in civil proceedings. Hence, the Apex Court was of the opinion that the complaint was not bonafide amounted to misuse and abuse of the process of law and thereby, quashed the complaint. (b) Now, if the case on hand is to be seen, it is quite clear that the disputed document was forming part of the Civil suit way back in 2003 and taking advantage of reiteration of production in the year 2012, in 2013, a complaint came to be filed. (b) Now, if the case on hand is to be seen, it is quite clear that the disputed document was forming part of the Civil suit way back in 2003 and taking advantage of reiteration of production in the year 2012, in 2013, a complaint came to be filed. The record as stated above indicates that the respondent complainant is very much a part of the civil proceedings and was shown as defendant No.1 way back in 2003 and therefore, the ratio laid down by Apex Court appears to be applicable to the case on hand and therefore, the relevant extract contained in the Paragraph of the above decision is reproduced hereunder :- 25. In Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 , the Court reiterated the scope and ambit of power of the High Court under Section 482 of the Code in the following words: "23. This Court in a number of cases has laid down the scope and ambit of courts' powers under section 482 CrPC, 1973. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 CrPC, 1973 can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. 24. Inherent powers under section 482 CrPC, 1973 though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the could would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases 25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. Discussion of decided cases 25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP, (1) 1964 AC 1254 Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys, 1977 AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved. 46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under section 482 CrPC, 1973 though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained." (c) In yet another decision in the case of Pooja Ravinder Devidasani v. State of Maharashtra and Another reported in (2014) 16 SCC 1 , where also the Hon'ble Apex Court has considered in a similar way and found that the proceedings are required to be quashed from being misused and in Paragraph 30 it was held as under :- "30. Putting the criminal law into motion is not a matter of course. To settle the scores between the parties which are more in the nature of a civil dispute, the parties cannot be permitted to put the criminal law into motion and courts cannot be a mere spectator to it. Putting the criminal law into motion is not a matter of course. To settle the scores between the parties which are more in the nature of a civil dispute, the parties cannot be permitted to put the criminal law into motion and courts cannot be a mere spectator to it. Before a Magistrate taking cognizance of an offence under Sections 138/141 of the NI Act, making a person vicariously liable has to ensure strict compliance with the statutory requirements. The superior courts should maintain purity in the court. The High Court ought to have quashed the complaint against the appellant which Page 26 of 29 is nothing but a pure abuse of process of law." (d) In another decision in the case of D.P. Gulati, Manager Accounts, Jetking Infotrain Limited v. State of Uttar Pradesh and Another reported in 2015 (11) SCC 730 , the Apex Court while dealing with the powers under section 482 of the Code of Criminal Procedure, 1973 has propounded that this exercise of power is aimed at to prevent the abuse of process of law and the duty under section 482 of the code of Criminal Procedure, 1973 is to see and secure the ends of justice and also that no proceedings are abused. The relevant paragraph of the said decision is worth to be taken note of and hence, reproduced here-in-after :- "7. We have carefully considered the rival submissions made before us. From a bare perusal of Section 482 of the Code, it is clear that the object of exercise of power under the section is to prevent abuse of process of law, and to secure ends of justice. In Rajiv Thapar v. Madan Lal Kapoor, this Court has enumerated the steps required to be followed before invoking inherent jurisdiction by the High Court under Section 482 of the Code as under :- "30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under section 482 CrPC, 1973 : 30.1. Step one : whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step one : whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two : whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three : whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer is all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under section 482 CrPC, 1973. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising there from) specially when it is clear that the same would not conclude in the conviction of the accused." 14. From the above-stated documents, facts and in light of the decisions cited above, this Application is hereby allowed. 15. Complaint, being C.R. No. I-63 of 2013 registered with Nadiad Town Police Station, Nadiad is hereby quashed and set aside accordingly. 16. Notice discharged. No costs.