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2017 DIGILAW 347 (GUJ)

Jaymin Hareshbhai Patel v. State of Gujarat

2017-02-10

A.J.SHASTRI

body2017
JUDGMENT : A.J. Shastri, J. 1. The present petition is filed by the petitioner - original accused No. 1 by invoking jurisdiction of this Court under Section 482 of the Cr.P.C. for seeking quashment of the FIR being I-C.R. No. 163 of 2010 lodged before the Nadiad Town Police Station, District - Kheda for the offence punishable under Sections 406, 420, 120-B and 506(1) of the IPC. 2. The case of the complainant is that he is dealing in the business of construction, industrial elevation as well as transaction pertaining to land. In the context of this business, for the development of construction, there was a need for finance to the tune of Rs. 15 crores and for that purpose, the petitioner along with other persons came in contact, who are stated to be dealing in such kind of financial assistance to be provided in the form of loan and resultantly, the petitioner came in contact through one Mr. Kalpesh Dalai. According to the complainant further, the Mr. Kalpesh Dalai, who is accused No. 3 in the complaint, has informed on 24.10.2007 that one Mr. Jaimin Patel is to be contacted, who is dealing with the NRI funds at Nadiad and therefore, along with Mr. Kalpesh Dalai, they met present petitioner - Mr. Jaimin Patel (accused No. 1). In the said meeting, a promise and assurance was given that such financial assistance from NRI funds would be made available but, for that purpose it was informed that some amount will be expended and on that day, since he was in hurry, demanded Rs. 1,05,000/- by way of fees which was given to the petitioner. Subsequently, further exchange of talks and the meeting processed in which with the assistance of other persons, a promise was given by petitioner that such financial assistance would be provided for that purpose and the transaction transfer fee of Rs. 60 lacs is required to be paid and therefore, since at the relevant point of time, such amount was not available, a sum of Rs. 30 lacs was given by way of cash to the petitioner, who is original accused No. 1 and further a cheque of Rs. 60 lacs is required to be paid and therefore, since at the relevant point of time, such amount was not available, a sum of Rs. 30 lacs was given by way of cash to the petitioner, who is original accused No. 1 and further a cheque of Rs. 30 lacs drawn in favour of Uco bank, Nadiad branch bearing No. 671448 was given towards security and as and when the amount will be generated, the same will be adjusted and in this contact, further meetings have taken place and consistent assurance and promise was given and when the receipt was demanded, the same was informed to be given later on. Some exchange of cheques have taken place in that transaction but, cheques have been returned and then, subsequently, entire episode which has taken place is narrated in the FIR. Several complaints in the form of criminal cases are pending with respect to this and therefore, it is appeared that a serious fraud is committed by the accused persons in connivance with each other and thereby, cheated respondent No. 2 which ultimately led to filing of the FIR before the Nadiad Town Police Station. The detailed narration can be visualized from the complaint which is filed at Page-25 of petition compilation. 3. It appears from the said complaint that the complaint came to be filed against as many as five accused persons and how these accused persons have committed an offence is spelt out in the complaint itself. Each person's name is also appears to have been narrated. This complaint was the subject matter of inquiry before the Nadiad Town Police Station, District-Kheda. It further appears from the record that the petitioner has also filed one application before the Police Inspector, In-charge of Nadiad Town Police Station, copy whereof is attached to the petition compilation baring no date. But it appears that same appears to have been given to the Police Inspector, In-charge of Nadiad Town Police Station. This application which has been given has also reflected that it has been filed against the present respondent No. 2. In furtherance to this, the petitioner appears to have approached the Hon'ble Chief Minister Cell at Gandhinagar by way of an application and sought the police protection by tendering an application on 26.6.2008. 4. This application which has been given has also reflected that it has been filed against the present respondent No. 2. In furtherance to this, the petitioner appears to have approached the Hon'ble Chief Minister Cell at Gandhinagar by way of an application and sought the police protection by tendering an application on 26.6.2008. 4. The record further indicates that exchange of correspondence has also taken place between the petitioner and respondent No. 2 and Page-46 of petition compilation indicates that respondent No. 2 has given a notice through advocate to present petitioner with respect to the transaction of money and the land which was sought to be purchased and for that purpose, the cheques which have been given are also the subject matter of controversy and this notice which has been given through advocate also reflected that steps were in contemplation for filing the complaint under Sections 384, 406, 420, 417, 463, 468, 471, 504 and 506(2) of the IPC and demanded an amount of Rs. 45 lacs. The record further indicates that a suit appears to have been filed by present petitioner against respondent No. 2 in the form of Civil Suit No. 135 of 2008 and the plaint for the same is also attached to the petition compilation at Page-52. This suit appears to have been filed for the purpose of challenging the notice dated 27.5.2008 and for restraining the respondent No. 2 from taking away directly or indirectly an amount of Rs. 39 lacs. This suit stated to have been pending in which the factual background and the controversy are in adjudication. In addition thereto, an injunction application is also appeared to have been filed by petitioner against the respondent No. 2 and therefore, this entire record of the case indicates that the transaction or the dealing between the petitioner and respondent No. 2 is seriously in controversy and is subject matter of adjudication. 5. The further examination of record has indicated that one another Civil Suit is also pending in the form of Civil Suit No. 183 of 2008 filed before the learned Principal Senior Civil Judge, Nadiad and the said suit also appears and stated to be pending for the reliefs which are claimed in Para. 11 of the said suit wherein also, a notice dated 13.6.2008 is under challenge. 11 of the said suit wherein also, a notice dated 13.6.2008 is under challenge. There are other criminal proceedings also appearing from the record to be pending between the parties in the form of Criminal Case Nos. 4157/2008, 4474/2008, 4964/2008 and 4512 of 2008 and many more as it appears and therefore, the entire record of the case of the present proceedings indicates that the facts and the stand taken by both the sides are serious in controversy and there appears to be a disputed version coming from both the sides. In the context of this record, Mr. Mitul R. Desai is questioning the enablity of FIR which has been filed by respondent No. 2. 6. While pressing the petition, Mr. Mitul Desai has contended specifically that respondent No. 2 - complainant has not come with clean hands and therefore, the FIR is nothing but a clear step of abuse of process of the law. It has also been contended by Mr. Mitul Desai that the stand taken by respondent No. 2 looking to the record of the case is not consistent. On every occasion at every stage of the proceedings, some new facts have been emerging at the instance of respondent No. 2 and therefore, this is nothing but a clear misuse of the process of the court machinery and therefore, filing of FIR is nothing but a clear example of abuse of process of law. Mr. Desai has further drawn the attention of the Court that there is a gross delay in filing the FIR and for the purpose of delay, no explanation has come out from the respondent No. 2 nor is reflected in any corner of FIR and therefore, such belated FIR smacks mala fide and therefore, entire filing of the complaint is nothing but a clear example of process of law. Mr. Desai has further contended that simple because the suits are pending and simply because other proceedings are pending in the form of criminal cases, same would not come in the way of petitioner in examining the FIR whether it is aimed at abuse of process of law and therefore, irrespective of pendency of proceedings, Mr. Desai has requested the Court that such abuse of process of law generated by respondent No. 2 be curved at the initial stage itself. Desai has requested the Court that such abuse of process of law generated by respondent No. 2 be curved at the initial stage itself. It was further contended that respondent No. 2 is a head strong person and has lifted the petitioner has committed serious offence and though several representations have been made, the authority has not acted upon in any manner which has constrained him to lodge the representation upto the stage of Hon'ble Chief Minister office and therefore, Mr. Desai has contended that this kind of stand cannot be allowed to be acted upon and thereby, requested the Court not to continue with coercive step against the petitioner. Mr. Desai has further contended by making an averment that notices which have been issued by respondent No. 2 and if those notices can be compared with FIR lodged by respondent No. 2 then, it would make it clear that at every stage, his stand is getting changed and therefore, for that purpose Mr. Desai has drawn the attention of the Court to the change which has been pointed at Page-16 of the petition compilation and thereby, has contended that such kind of abuse of process may not be allowed to be encouraged. Mr. Desai has further contended that simply because the summons came to be issued, suddenly the complaint came to be generated by respondent No. 2 and this is nothing but making a serious attempt of curving the petitioner from ventilating his genuine grievance and therefore, such an attempt may not be allowed to be encouraged. Mr. Desai has then pointed out that serious offence is committed and there is a threat given by respondent No. 2 which has been narrated in the FIR and therefore, in this background of fact, the FIR which has been filed is required to be quashed. Mr. Desai has further contended that looking to the averments contained in the FIR, there appears to be no case made out of any nature which would warrant the said process to be carried out further and therefore, by contending this, Mr. Desai has ultimately requested the Court to allow the present petition by granting the reliefs as prayed for in the petition. 7. To oppose the stand taken by the petitioner, Ms. Desai has ultimately requested the Court to allow the present petition by granting the reliefs as prayed for in the petition. 7. To oppose the stand taken by the petitioner, Ms. Kruti M. Shah, learned advocate representing respondent No. 2-complainant has vehemently opposed the petition and has specifically contended that the Court should be loathed in interfering with the FIR and the investigating machinery and the statutory powers cannot be allowed to be intercepted at the instance of the present petitioner. Ms. Shah has pointed out specifically that complaint came to be filed against five accused persons and only this petition is filed by petitioner, who is original accused No. 1 and therefore, at his instance, no such petition can be entertained. Ms. Shah has further pointed out that there are several disputed questions of facts entangled in the present proceedings. Not only that, there are series of litigations in the form of civil and criminal are pending between the parties where the respective stand is at controversy and Ms. Shah has therefore contended that since those proceedings are pending for appropriate adjudication, the FIR which has been filed cannot be allowed to throttle at this stage simply because certain averments are made by present petitioner in the proceedings. Ms. Shah has contended that there is no abuse of process of law at any point of time. On the contrary, the grievances which are voiced out in the FIR are required detailed investigation and for that purpose, the investigating machinery may be allowed to proceed further. Ms. Shah further contended that if there is a remote apprehension on the part of petitioner then, he can ask for even police protection and of course, that apprehension is illusory, just pleaded with a view to sideline the real controversy and therefore, Ms. Shah has contended that at this stage of the proceedings, the FIR may not be allowed to be throttled. Ms. Shah has further contended that there are series of decisions in which powers under Section 482 of the Cr.P.C. are to be exercised sparingly and only in exceptional cases. Prima facie, looking to the averments which are made, an offence as alleged is established and for that purpose, the criminal machinery may not be allowed to be intercepted at this stage, more particularly at the instance of present petitioner, who is original accused No. 1. 7.1 Ms. Prima facie, looking to the averments which are made, an offence as alleged is established and for that purpose, the criminal machinery may not be allowed to be intercepted at this stage, more particularly at the instance of present petitioner, who is original accused No. 1. 7.1 Ms. Shah has filed the detailed affidavit and tried to clarify the grievance for which FIR has been filed and said detailed affidavit which is reflected on Page-160 of the petition compilation requires that some investigation in that direction is also required. To examine further whether by filing the FIR, the respondent No. 2 has an intention of abuse of process of law, the Court has assistance of further affidavit filed by the Police Inspector, In-charge of Nadiad Town Police Station, who has deposed by way of affidavit on Page-170 of petition compilation. Said affidavit has pointed out specifically that on the contrary, the grievances which have been raised against the investigating agency at the relevant point of time by the petitioner have been thoroughly examined and on 3.7.2008, it is the petitioner who himself has deposed on oath that the petitioner has no grievance against LCB Officer or any other office and accordingly, the complaint which was generated by the petitioner was ordered to be filed and therefore, on the basis of this, it appears that the grievances which are tried to be voiced out against the investigating machinery are also not found just as is reflected from the further affidavit filed by the Police Inspector. 8. The Court has also gone through the specific affidavit which has been filed by this very petitioner, who is original accused No. 1 reflecting on Page-184 of the petition compilation in which also by narrating in detail he has clarified that under which circumstances, he has filed such application and thereafter, from this affidavit, it is emerging on Page-187 that some compromise has also taken place and therefore, the entire controversy which has erupted between both the sides appears to be of serious conflict on factual background and therefore, it appears prima facie that the FIR is not possible to be throttled at this stage, more particularly in exercise of powers under Section 482 of the Cr.P.C. It appears from the record further that no doubt it has been alleged that on 17.6.2008 the incident in question alleged to have occurred. But at the same time, much reliance is given by both the sides about their previous transactions, about their inimical business relations and the dispute. The petitioner has made an attempt by asserting that the abuse of process of law is made by respondent No. 2 by indicating conduct. But it appears that this conduct has a different shady colours on account of which whether this conduct has actually occurred at the instance of respondent No. 2, is appearing to be a matter of investigation. Simply on the basis of assertion, the Court cannot adjudicate the disputed version of both the sides. It has also appeared that chain of transaction has occurred between the parties and inter-se litigations are also the subject matter of serious fight between the parties in litigation and therefore, looking to this entire tenor of dispute and encircled factual controversies, the Court deems fit not to intercept any process. Since the petitioner has not made an attempt whether ingredients are satisfied or not but, has relied upon the conduct of respondent No. 2 by making allegations which according to the Court cannot form the basis for exercise of jurisdiction under Section 482 of the Cr.P.C. Seriously disputed questions of fact, in considered opinion of the Court, cannot be made a subject matter of exercise of inherent jurisdiction. It appears from the record that at both end, there are some grievances, allegations and counter allegations and therefore, the Court cannot be an instrument rather this is not a forum to allow the party to ventilate their grievances of such a nature which requires detailed adjudication. 9. The scope of Section 482 is by now well defined by catena of decisions and few decisions related to it are required to be considered while coming to the conclusion in the present proceedings. The same are reproduced hereinafter. 9.1 The Supreme Court in case of N. Soundaram Vs. P.K. Pounraj & Anr., reported in (2014) 10 SCC 616 , in Para. 13 it is held as under: "13. It is well settled by this Court in a catena of cases that the power under Section 482 of Cr.P.C. has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana v. Bhajan Lal] The inherent power should not be exercised to stifle a legitimate prosecution. [See State of Haryana v. Bhajan Lal] 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 power under Section 482 Cr.P.C. [See MCD v. Ram Kishan Tohtaji] An investigation Page 13 of 28 HC-NIC Page 13 of 28 Created on Sat Aug. 06 06:03:02 1ST 2016 R/SCR.A/1530/2011 JUDGMENT should not be shut out at the threshold if the allegations have some substance. [See Vindo Raghuvanshi v. Ajay Arora]" 9.2 In another decision in case of Teeja Devi Alias Triza Devi Vs. State of Rajasthan & Ors., reported in (2014) 15 SCC 221 , the Supreme Court has in Para. 9 held as under: "9. We have no hesitation in holding that in the facts of the case, the High Court was not justified in interfering with the police investigation and quashing the FIR. This is not at all a rare case. Without a thorough investigation, it is not possible or proper to hold whether the allegations made by the complainant are true or not. Hence, the investigation should have been allowed to continue so that on filing of the report under Section 173 Cr.P.C. the affected party could pursue its remedy against the report in accordance with law. Keeping in view the fact that the criminal case was at the stage of investigation by the police the High Court was not justified in holding that the investigation of the impugned FIR is totally unwarranted and that the same would amount to gross abuse of the process of the court. 9.3 In yet another decision in case of HMT Watches Ltd. Vs. M.A. Abida & Anr., reported in (2015) 11 SCC 776, in Para. 13 and 15, the Supreme Court has held as under: "13. In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court. 15. M.A. Abida & Anr., reported in (2015) 11 SCC 776, in Para. 13 and 15, the Supreme Court has held as under: "13. In view of the law laid down by this Court as above, in the present case High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial court. 15. For the reasons as discussed above, we find that the High Court has committed grave error of law in quashing the criminal complaints filed by the appellant in respect of offence punishable under Section 138 of the N.I. Act, in exercise of powers under Section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial court, after recording of the evidence, can be better appreciated." 9.4 The Supreme Court has in case of Amanullah & Anr. Vs. State of Bihar and Ors., reported in AIR 2016 SC 1871 , held in Para. 27 and 28 as under: "27. After considering the rival legal contentions urged by both the parties, case law referred to supra and the material placed on record, we are of the view that the High Court has exceeded its jurisdiction under Section 482 of the Cr.P.C. It has erred in quashing the cognizance order passed by the learned CJM without appreciating the material placed before it in correct perspective. The High Court has ignored certain important facts, namely, that on 17.10.2008, the appellant No. 1 was allegedly threatened by the accused-Mukhtar for which FIR No. 104/08 was registered against him for offences punishable under Sections 25 and 26 of the Arms Act, 1959. Further, there are statements of various witnesses made under Section 164 of the Cr.P.C., before a judicial magistrate, to the effect that the deceased has been murdered by none other than her husband-Mukhtar. The evidence collected by the I.O. by recording the statement of prosecution witnesses, filed alongwith the chargesheet was duly considered by the learned CJM before taking cognizance and therefore, the same should not have been interfered with by the High Court in exercise of its inherent power under Section 482 of the Cr.P.C. 28. The evidence collected by the I.O. by recording the statement of prosecution witnesses, filed alongwith the chargesheet was duly considered by the learned CJM before taking cognizance and therefore, the same should not have been interfered with by the High Court in exercise of its inherent power under Section 482 of the Cr.P.C. 28. Further, the High Court has failed to take into consideration another important aspect that the case at hand relates to the grave offence of murder and that the criminal proceedings related thereto should not lightly be interfered with, which is a well settled proposition of law." 10. From overall analysis of the evidence on record and in view of aforesaid proposition of law laid down by catena of decisions, the Court is of the considered opinion that this factual background which is seriously in dispute and allegations and counter allegations which are reflecting on the record are not possible to be adjudicated upon in exercise of powers under Section 482 of the Cr.P.C. At this stage, it is deemed proper not to intercept the process of Investigating Officer in furtherance of the complaint bearing I-C.R. No. 163 of 2010 lodged before the Nadiad Town Police Station and accordingly, the petition being meritless is not entertained and the same is dismissed hereby. Rule is discharged. 11. The Court, while passing this judgment, has not examined in detail the merit and demerit of the allegations but, is expecting that the investigating machinery to conduct proper and fair inquiry into the issue to find out the truth and the observations made in this judgment are made in the context of exercise of powers under Section 482 of the Cr.P.C. which would not come in the way of investigating agency to carry out process pursuant to filing of the complaint. With these observations, the present petition is disposed of.