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2018 DIGILAW 801 (GUJ)

Bharatbhai Manjibhai Parmar v. State of Gujarat

2018-06-29

B.N.KARIA

body2018
JUDGMENT & ORDER : B.N. Karia, J. The Present Petition Has Been Filed By The Petitioner Under Section 482 Of the Code of Criminal Procedure, 1973 {"CrPC" for brevity} to quash and set aside complaint, being C. R. No. I-179/2012 registered with Thorala Police Station, District: Rajkot for an offence punishable under Sections 406, 420, 120B and 114 of the Indian Penal Code ["IPC" for short]. 2. Brief facts of the present petition read, thus: 2.1 Petitioner is a partner of a firm which is running in the name of Gayatri Enterprise since 1981 and doing business of manufacturing machine tools at Rajkot. The said firm is registered with the Sales tax authorities, having TIN number and after introduction of Value Added Tax, CST number. The said firm is consisting of two partners viz., the present applicant and one Kamlaben Lajibhai Parmar. The applicant wanted to purchase a Hyundai I-20 model Car for himself and therefore, he approached one M/s. Equity Motors [Rajkot] Private Limited, having dealership of Hyundai Cars and met one Pankajbhai Kanani [the complainant] on 27th July 2012for the purpose of purchasing the vehicle. After discussion, it was informed by the complainant, who happens to be General Manager of the said Equity Motors [Rajkot] Private Limited, that the on-road price of said car would be approximately Rs. 11 lakhs and the applicant was told to initially pay an amount of Rs. 7,62,000/- and once the said amount is paid, the car shall be delivered within a week, and at the time of delivery of the vehicle, remaining amount as per the final figure was required to be paid. Accordingly, the applicant paid a sum of Rs. 7,62,000/- on 1st August 2012 from his savings bank account maintained by Bank of Baroda through RTGS on 31st July 2012. To the agony of the applicant, he waited for delivery of the vehicle and requested many a times, however, inspite of passing over of two months, the dealer/company did not deliver the Car and as a result thereof, the applicant filed a complaint against the said Company before the District Consumer Forum at Rajkot on 27th September 2012. The said forum allowed the complaint and granted a sum of Rs. 7,62,000/- with running interest @ 10% from 1st August 2012 plus Rs. 50,000/- towards compensation and cost. The said forum allowed the complaint and granted a sum of Rs. 7,62,000/- with running interest @ 10% from 1st August 2012 plus Rs. 50,000/- towards compensation and cost. However, in the interregnum, during the course of issuance of notice by the District Consumer Forum, making it returnable on 27th October 2012, the opponent no. 2 complainant lodged a complaint against the petitioners and two others for an offence; narrated hereinabove alleging inter alia that the accused no. 1 one Maheshbhai G Vakariya did not pay entire amount of Verna Car and even at the time of delivery, cheated the company by representing to consider RTGS amount paid by him and thereby took delivery by not paying full amount. It is further alleged in the complaint that the accused no. 2 the present applicant though was not a customer of the complainant's company, created bank transaction of making payment through RTGS on 1st August 2012, upon instructions of the accused no. 1, and the role attributed against the accused no. 2-one Ravibhai Jentibhai Pesavariya is in respect of cheating different customers., giving rise to quashment of the complaint by the petitioner ie., the accused no. 2 in the said complaint. 3. Heard learned advocate Mr. Sandeep R. Limbani for the petitioner, learned advocate Mr. Ashish M. Dagli for the respondent no.2 and learned APP Mr. Rutvij Oza for the respondent no.1-State. 4. It is argued by learned advocate Mr. Sandeep R. Limbani for the petitioner that that the petitioner wanted to purchase Hyundai I-20 model car, and therefore, he approached M/s Equity Motors (Rajkot) Pvt. Ltd. having dealership of the Hyundai Car and met personally to the Managing Director of the company as well as General Manager Mr. Pankaj Kanani on 27.07.2012. That, after discussion, he confirmed the price of the said car at Rs. 11 lacs approximately and petitioner was informed to pay initial amount of Rs. 7,62,000/- to the dealer. That, after paying the said amount to the dealer, it was informed that car would be delivered within a week from the date of payment. That, remaining amount was require to be paid on delivering of the car. That the petitioner, on 1st August 2012, transferred an amount of Rs. 7,62,000/- from his savings bank account of Bank of Baroda being Account No. 035901000306376 through RTGS in HDFC Bank account of the company bearing bank account No. 01012560005943. That, remaining amount was require to be paid on delivering of the car. That the petitioner, on 1st August 2012, transferred an amount of Rs. 7,62,000/- from his savings bank account of Bank of Baroda being Account No. 035901000306376 through RTGS in HDFC Bank account of the company bearing bank account No. 01012560005943. That, he was waiting for delivering the car and frequent request was made by him to deliver the car. That, inspite of passing 2 months, he was not delivered the car booked by him, and therefore, he filed a complaint against M/s. Equity Motors (Rajkot) Pvt. Ltd before the District Consumer Forum, Rajkot on 27.09.2012 and District Forum issued notice to the company. Thereafter, considering the merits, District Consumer Forum Rajkot has passed an order on 23rd January 2013 in favour of the petitioner directing to pay an amount of Rs. 7,62,000/- with running interest @ 10% from 1st August 2012 plus Rs. 50,000/- towards compensation to the petitioner. That, the respondent no.2 has falsely filed complaint against the petitioner for an offence punishable under Sections 406, 420, 114 and 120B of the Indian Penal Code. That, no case is made out by the respondent no.2- complainant against the present petitioner. That, there was no inducement on the part of the petitioner nor the petitioner was entrusted the property nor he has misappropriated any amount. That, the complaint was filed much less preferred after the complaint of the petitioner before the Consumer Forum. That, respondent no.2 misused the police machineries and got the FIR registered with a view to pressurize the petitioner so that he would withdraw the consumer case. That it is a clear case of abuse of process of law. That the petitioner is duped by the respondent no.2 by adjusting the payment of Rs. 7,62,000/- made by him through RTGS in favour of accused no.1 and delivered the car to the accused no.1. That, the petitioner himself was cheated by the respondent no.2 and the respondent no.2 misappropriated the amount paid by the petitioner. That he has nothing to do with the purchase of a car by the accused no.1. Therefore, it was requested by learned advocate Mr. Sandeep Limbani for the petitioner that petitioner is falsely involved in the offence by the respondent no.2 by filing false criminal complaint and abusing the process of law. That he has nothing to do with the purchase of a car by the accused no.1. Therefore, it was requested by learned advocate Mr. Sandeep Limbani for the petitioner that petitioner is falsely involved in the offence by the respondent no.2 by filing false criminal complaint and abusing the process of law. That, the complaint being C. R. No. I-179/2012 registered with Thorala Police Station, District: Rajkot for the offence punishable under Sections 406. 420, 120B and 114 of the Indian Penal Code should be quashed and set aside. 5. Mr. Rutvij Oza, learned APP for the respondent no.1-State submitted that FIR discloses prima facie offence against the persons named therein that there is no justification much less legal justification to quash the FIR by this Court. He drew attention of this Court towards statement recorded by the Investigating Officer to contend that during investigation accused no.1 Mahesh Ganeshbhai Vekariya submitted that the accused no.3 namely Ravi shown in the FIR is also in the business of vehicle. That, accused no.1 is friend of the present petitioner. That, in fact, an amount was transferred on instructions of the accused no.1 and car was delivered to accused no.1. That, after passing of one and half years on 13th September 2012, a notice was issued by the present petitioner to the dealer. That, the delivery of the car was made to the accused no.1. That, relation of accused no.1 and 2 were clearly made out from the police papers and they are known to each other since long. That, Section 120B of the Indian Penal Code is applied to the facts of the case. That, direct evidence would not be available at this juncture. That, truth would be found out after recording evidence by the court. At this juncture, prima facie, petitioner is involved in the offence, and therefore, the impugned FIR cannot be quashed by the Court. It was requested by learned APP to dismiss the petition. 6. Mr. Ashish M. Dagli, learned advocate for the respondent no.2-complainant has supported the averments made in the complaint lodged by the respondent no.2 He has also drawn attention towards the affidavit filed by the complainant, who is General Manager of the company and submitted that all the accused were known to each other. 6. Mr. Ashish M. Dagli, learned advocate for the respondent no.2-complainant has supported the averments made in the complaint lodged by the respondent no.2 He has also drawn attention towards the affidavit filed by the complainant, who is General Manager of the company and submitted that all the accused were known to each other. It is further submitted that in terms of Section 405 of the Indian Penal Code, whoever, being in any manner entrusted with property, or with any dominion over property, the Section does not require that trust should be in furtherance of any lawful object. That, the offence of cheating is prima facie constituted by the petitioner. For the purpose of quashing the complaint, it is necessary to consider whether allegations in the complaint prima facie make out any offence or not. It is further submitted that is not necessary to scrutinize allegations for the purpose of deciding whether such allegations are likely to be upheld in the trial. That, without recording evidence in the trial, no question arise to quash the FIR, as prayed by the petitioner. Ultimately, it was requested by him to dismiss the petition. 7. Heard learned advocates for the respective parties at length and on perusal of the record of the case, it appears that the respondent no.2 has lodged a written complaint stating that accused no.1 did not pay the entire amount of Verna Car even at the time of delivery and cheated the company by representing that RTGS amount was paid by him, and thereby, took the delivery of car, however, full payment was not made. It is further alleged that accused no.2-present petitioner though was not customer of the company, created bank transaction by making payment of Rs. 7,62,000/- through RTGS on 01.08.2012 upon the instruction of the accused no.1. It is further alleged that the accused no.3-Ravibhai Jentibhai Pesavariya with a view to cheat or to defraud the customer made payment on different names by RTGS and instructed to credit in account of another accused. From the record, it appears that amount of Rs. 7,62,000/- was paid by the present petitioner to the company on 01.08.2012 from his savings bank account of Bank of Baroda being Account No. 035901000306376 through RTGS in HDFC Bank account of the company bearing bank account No. 01012560005943. From the record, it appears that amount of Rs. 7,62,000/- was paid by the present petitioner to the company on 01.08.2012 from his savings bank account of Bank of Baroda being Account No. 035901000306376 through RTGS in HDFC Bank account of the company bearing bank account No. 01012560005943. A copy of the passbook shows the said entry is produced on record by the petitioner. From the averments made in the complaint by the respondent no.2, it is also admitted that said amount was paid by the petitioner to the company. On demanding the delivery of the car by the petitioner, it was informed to him that said amount was adjusted into the account of the accused no.1, upon the instructions given by the accused no.1. It is nowhere stated that delivery of the car was made to the present petitioner or petitioner was knowing another co-accused. Prima facie, it appears that before transferring the above staid amount deposited by the present petitioner in the account of the accused no.1, the petitioner was never informed nor his consent was received by the company. When the delivery of car was not made to the petitioner, he approached the District Consumer Forum, Rajkot by filing a complaint on 27.09.2012. From the record, it appears that District Consumer Forum Rajkot has delivered the judgment in favour of the petitioner directing the company to pay an amount of Rs. 7,62,000/- with running interest @ 10% from 01.08.2012 plus Rs. 50,000/- towards compensation on the ground of mental agony, harassment or special cost etc., to the complainant within 30 days from the date of order ie., 23.01.2013. 8. As per the averments made by learned advocate Mr. Ashish Dagli for the respondent No.2, the order passed by the District Consumer Forum, Rajkot was challenged and is pending but nothing is produced by the complainant to show that this order was challenged or any appeal is pending. Prima facie, FIR does not disclose as to how the present petitioner can be found guilty of offence punishable under Sections 406, 420, 114 and 120B of the Indian Penal Code. The ingredients of the offence are conspicuously lacking and no case is made out by the complainant against the present petitioner. Prima facie, FIR does not disclose as to how the present petitioner can be found guilty of offence punishable under Sections 406, 420, 114 and 120B of the Indian Penal Code. The ingredients of the offence are conspicuously lacking and no case is made out by the complainant against the present petitioner. If it is believed that present petitioner and other co-accused are related to each other and knowing them since long, there are no allegations much less the averments made by the complainant against the present petitioner. From the complaint, it is nowhere found that there was any entrustment on the part of the present petitioner or he was entrusted with any property. Prima facie, this court is of the view that respondent no.2 had misused the police machinery and FIR was registered with a view to harass the present petitioner, an amount of Rs. 7,62,000/- deposited by the present petitioner through RTGS in account of the company was not repaid to him by the company and instead of it, lodged a false complaint against him along with other coaccused by getting up the story of friendship with the petitioner and the accused no.1. It also appears from the record that legal notice was also issued on 13.09.2012 by the present petitioner to the company requesting to deliver the car and/or repay the amount deposited by him. 9. In case of D. P. Gulati, Manager Accounts, Jetking Infotrain Limited v. State of Uttar Pradesh & Anr., (2015) 11 SCC 730 , the Supreme Court has held that object of exercise of power under Section 482 CrPC is to prevent abuse of process of law and to secure ends of justice. 10. In view of the facts of the case on hand and settled principles of law established by the Apex Court in the reported judgments and after going through the complaint filed by the respondent no.2 against the present petitioner, this court is of the view that it is clear case of abuse of process of law on the part of the respondent no.2, and therefore, this petition deserves to be allowed. Accordingly, the same is allowed and impugned complaint, being C. R. No. I-179/2012 registered with Thorala Police Station, District: Rajkot for an offence punishable under Sections 406. 420, 120B and 114 of the Indian Penal Code is hereby quashed and set aside qua the petitioner alone. 11. Accordingly, the same is allowed and impugned complaint, being C. R. No. I-179/2012 registered with Thorala Police Station, District: Rajkot for an offence punishable under Sections 406. 420, 120B and 114 of the Indian Penal Code is hereby quashed and set aside qua the petitioner alone. 11. Rule nisi made absolute to the afore stated extent with no order as to costs.