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2019 DIGILAW 613 (GUJ)

Prashantbhai Maneklal Mehta v. State Of Gujarat

2019-06-26

A.S.SUPEHIA

body2019
JUDGMENT : 1. As both these applications arise out of the same F.I.R., the same are decided analogously. 2. Rule. Learned APP waives service of rule for the respondent-State. 3. The present applications have been filed seeking quashing of FIR registered at Harij Police Station, District Patan being C.R. No.I-90 of 2015 for the offences punishable under Sections 406, 420, 507 and 114 of the Indian Penal Code, 1860 ('the IPC' for short). 4. The brief facts of the case leading to filing of Criminal Misc. Application No.19544 of 2015 are as under :- 4.1. The applicant is the owner/director of Jai Jalaram Ginning Factory, which is supplying cotton and cottonseeds, and respondent no.2 was partner. The Jai Jalaram Ginning Factory used to supply cotton to Rushi Cotex Private Limited for sale in market. The supply continued from 2008-09 to 2011-12. The account of Jai Jalaram Ginning Factory has been settled and paid when the payment of Rs.50,00,000/- were made by RTGS transaction on 22.06.2013. 4.2. There was three directors namely Shailesh Narendrabhai Pandya (accused no.3), Prakash Maneklal Mehta (present petitioner) and Meenaben J. Soni-wife of accused no.2 in the Rushi Cotex Private Limited, registered office of Rushi is situated at 46/47 Empire Tower, C.G. Road, Ahmedabad dealing in trading business of cotton since last 7-8 years. 4.3. It is the case of the applicant that Jai Jalaram Ginning Factory or any of its partners at any point of time has not given any loan to Rushi Cotex Private Limited. The complainant has not advanced any amount of loan much less Rs.1,75,00,000/- to Rushi Cotex Private Limited or any of its partners out of the loan taken from Dena Bank and frivolous complaint is filed by the complainant against the petitioner for the alleged transaction of 2011 in the year 2015. 5. The brief facts of the case leading to filing of Criminal Misc. Application No.19401 of 2015 are as under: 5.1. The petitioner no.1 is working as a Manager of a trading company viz., Rushi Cotex Private Limited, whereas petitioner no.2 is the director of the Rushi Cotex Private Limited. 5.2. It is the case of the petitioners that initially accused no.1-Prashantbhai Maneklal and respondent no.2-complainant were the partners in Jai Jalaram Ginning Factory. The petitioner no.1 is working as a Manager of a trading company viz., Rushi Cotex Private Limited, whereas petitioner no.2 is the director of the Rushi Cotex Private Limited. 5.2. It is the case of the petitioners that initially accused no.1-Prashantbhai Maneklal and respondent no.2-complainant were the partners in Jai Jalaram Ginning Factory. The said factory used to supply cotton to Rushi Cotex Private Limited and regular payments were also made by Rushi Cotex Private Limited to Jai Jalaram Ginning Factory. The account of Jai Jalaram Ginning Factory has been fully settled and paid when payments of Rs.50,00,000/- were made by RTGS transaction on 22.06.2013 to Jai Jalaram Ginning Factory. 6. Learned advocate Mr. R.D. Dave appearing for the applicants has submitted that the impugned F.I.R., which is not tenable in law and is false, frivolous, oppressive and vexatious against the applicants only with a view to extort money. He has also submitted that the applicant in Criminal Misc. Application No.19544 of 2015 had already resigned from the post of Director of Rushi Cotex Private Limited vide letter dated 30.06.2011 and the same had already been acknowledged. He has further submitted that even if the contents of the impugned F.I.R. are taken, the same would not satisfy the ingredients of Section 406, 420 and 507 of the IPC. 7. Learned advocate Mr. R.D. Dave for the applicants has submitted that the nature of dispute is civil and no criminal liability arose therefrom. In support of his submissions, he has placed reliance on the judgment of the Apex Court in the case of Joseph Salvaraj A. vs. State of Gujarat & Ors., reported in AIR 2011 SC 2258 . He has further invited the attention of this Court to the agreement dated 01.03.2013, wherein it has been stated that the complainant has agreed to retire as partner from the partnership firm. He has submitted that at that time also the complainant did not raise any grievance about the alleged loan amount and the impugned F.I.R. filed after a delay of two years. 8. Vehemently opposing the submissions of the learned advocate for the applicants, learned advocate Mr. Neel Dave appearing for respondent no.2-complainant has submitted that in fact the applicants have duped the complainant as they had taken loan of Rs.1,75,00,000/- from him and thereafter, did not return the amount. 8. Vehemently opposing the submissions of the learned advocate for the applicants, learned advocate Mr. Neel Dave appearing for respondent no.2-complainant has submitted that in fact the applicants have duped the complainant as they had taken loan of Rs.1,75,00,000/- from him and thereafter, did not return the amount. He has submitted that it is a clear case of dishonest intention on the part of the applicants. He has further asserted that only when Mr. Prashantkumar Maneklal Mehta resigned from the post of Director, all the dues of Rushi Cotex Private Limited were satisfied and No Due Certificate was obtained on 12.10.2015 after the complainant filed the complaint on 07.10.2015. Thus, he has submitted that this depicts the dishonest intention of the applicants and hence, the impugned F.I.R. may not be quashed and set aside. 9. Learned APP Mr. Hardik Soni has submitted that the investigation is over and the Investigating Officer has collected the relevant documents, more particularly the contract/agreement entered into between the partners. He has submitted that the investigation reveals that there was some agreement entered into between the partners for want of amount of Rs.1,75,00,000/-, whereby the conditions mentioned therein were to be fulfilled by the respective partners. Thus, he has submitted that prima facie it reveals that there has been violation of contractual obligation amongst the partners. 10. I have heard the learned advocates appearing for the respective parties. 11. The impugned F.I.R. dated 07.10.2015 has been registered for the alleged the offence punishable under Sections 406, 420, 507 and 114 of the IPC. The contents of same reveal that there has been a contractual/agreement amongst the partners including the complainant and the applicants, who were the partners of Jalaram Ginning Factory at the relevant time. In the impugned F.I.R. the complainant has stated that he had parted with an amount of Rs.1,75,00,000/- to Jalaram Ginning Factory as loan and the same was to be returned with interest to him, however, as and when he inquired about the same, the present applicants assured him that they would return the amount after they obtained the loan from the Bank of Maharashtra. However, though the loan of Rs.3,00,00,000/- was obtained they did not return complainant's money. However, though the loan of Rs.3,00,00,000/- was obtained they did not return complainant's money. Thus, it is further alleged in the impugned F.I.R. by the complainant that when he called upon by the applicants on mobile number 98794 99794 for returning his money, they threatened to kill him by hiring some persons and also threatened him that they will also seize his property. Thus, the impugned F.I.R. has been lodged by the complainant for the offence punishable under Sections 406, 420, 507 and 114 of the IPC. 12. This Court has perused the papers of the investigation. The Investigating Officer has collected the written agreement of the present applicants as well as the complainant, who is the signatory to the agreement of an amount of Rs. 1,75,00,000/-. A bare perusal of the agreement reveals that there is not a whisper about the fact that the complainant had paid an amount of Rs.1,75,00,000/- to the applicants or to the firm. It only refers to the mode of repayment as well as one of the clause refers thereto that after 08.02.2011, it would be the entire responsibility of the complainant to handle the necessary obligations of executing the appropriate activities pertaining to Income Tax as well as further money transaction. There is nothing in the agreement, which depicts that the applicants have to return the amount of Rs.1,75,00,000/-, which is paid to them. Thus, as regards the offence under Sections 406 and 420 of the IPC is concerned, no offence as mentioned therein, has been established. Be that as it may, the dispute can purely said to be civil in nature. At this stage, it would be apposite to refer to the observations made by the Supreme Court in the case of Joseph Salvaraj (supra), which read as under: “21. Criminal breach of trust is defined under Section 405 of the IPC and 406 thereof deals with punishment to be awarded to the accused, if found guilty for commission of the said offence i.e. with imprisonment for a term which may extend to three years, or with fine, or with both. 22. Section 420 of the IPC deals with cheating and dishonestly inducing delivery of property. Cheating has been defined under Section 415 of the IPC to constitute an offence. 22. Section 420 of the IPC deals with cheating and dishonestly inducing delivery of property. Cheating has been defined under Section 415 of the IPC to constitute an offence. Under the aforesaid section, it is inbuilt that there has to be a dishonest intention from the very beginning, which is sine qua non to hold the accused guilty for commission of the said offence. Categorical and microscopic examination of the FIR certainly does not reflect any such dishonest intention ab-initio on the part of the appellant. 23. Section 506 of the IPC deals with punishment for criminal intimidation. Criminal intimidation, insult and annoyance have been defined in Section 503 of the IPC but the FIR lodged by complainant does not show or reflect that any such threat to cause injury to person or of property was ever given by the Appellant to the Complainant. 24. Thus, from the general conspectus of the various sections under which the Appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the Complainant's FIR. Even if the charge sheet had been filed, the learned Single Judge could have still examined whether the offences alleged to have been committed by the Appellant were prima facie made out from the complainant's FIR, charge sheet, documents etc. or not. 25. In our opinion, the matter appears to be purely civil in nature. There appears to be no cheating or a dishonest inducement for the delivery of property or breach of trust by the Appellant. The present FIR is an abuse of process of law. The purely civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance against the Appellant. It does not meet the strict standard of proof required to sustain a criminal accusation”. 13. In the instant case, even if the allegations made in the F.I.R. are taken at its face value, the same will not constitute the offence of criminal breach of trust as the same would amount to a breach of contractual agreement and would not in any manner give rise to any criminal liability. 14. The agreement dated 01.03.2013 entered into by the petitioners and the complainant whereby he had relinquished himself as the partner of the firm is not disputed. 14. The agreement dated 01.03.2013 entered into by the petitioners and the complainant whereby he had relinquished himself as the partner of the firm is not disputed. If it was the case of the present complainant that the loan of Rs.1,75,00,000/- is not paid by the petitioners, then the fact of non-payment the loan would have been incorporated in the aforesaid agreement wherein the complainant has resigned/retired from the partnership firm. There is no clause inserted in the agreement that the amount referred in the FIR remained to be paid by the petitioners. Thus, the lodging the FIR against the petitioners appears to be afterthought, and the same is lodged only with a view extort money from the petitioners. 15. So far as the offence punishable under Section 507 of the IPC is concerned, the same is also not established. Section 503 of the IPC defines “criminal intimidation”, which is incorporated as under: “503. Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.—A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section. Illustration A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B’s house. A is guilty of criminal intimidation.” 16. It is no more Respondent-integra that for satisfying the ingredients of Section 503 of the IPC the causing of alarm to the complainant or to the victim is sine qua non and if the same is missing, no offence under Section 506 or 507 of the IPC can be said to have been established. I may with profit refer to the observations made by this Court in the case of Mehul Chunibhai Choksi vs. State of Gujarat, 2018 (1) GLR 349 . I may with profit refer to the observations made by this Court in the case of Mehul Chunibhai Choksi vs. State of Gujarat, 2018 (1) GLR 349 . This Court while examining the provision of section 503 of IPC has held thus: “The essential ingredients The offence of criminal intimidation has been defined under Section 503 of the Indian Penal Code and Section 506 of the Indian Penal Code provides punishment for it. Section 503 reads as under: "Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation. Explanation: A threat to injure the reputation of any deceased person in whom the persons threatened is interested, is within this section. An offence under Section 503 has following essentials: 1. Threatening a person with any injury; (i) to his person, reputation or property; or (ii) to the person, or reputation of any one in whom that person is interested. 2. The threat must be with intent; (i) to cause alarm to that person; or (ii) to cause that person to do any act which he is not legally bound to do as the means of avoiding the execution of such threat; or (iii) to cause that person to omit to do any act which that person is legally entitled to do as the means of avoiding the execution of such threat. 46 A bare perusal of Section 506 of the Indian Penal Code makes it clear that a part of it relates to criminal intimidation. Before an offence of criminal intimidation is made out, it must be established that an accused had an intention to cause alarm to the complainant. Mere threats given by the accused not with an intention to cause alarm to the complainant, but with a view to deterring him from interfering with the work of construction of the wall, which was undertaken by the accused applicant, would not constitute an offence of criminal intimidation. Mere threats given by the accused not with an intention to cause alarm to the complainant, but with a view to deterring him from interfering with the work of construction of the wall, which was undertaken by the accused applicant, would not constitute an offence of criminal intimidation. In the entire FIR, there is no whisper of any allegation that the threats which were administered actually caused any alarm to the first informant and he felt actually threatened.” In the present case, there is not a whisper in the complaint that the alleged criminal intimidation administered by the present petitioners had caused any alarm to the complainant, and he actually felt very threatened. The incident happened on 05.10.2015 and the F.I.R. has been lodged on 07.10.2015 (i.e. after two days of the incident). Moreover, the delay in lodging the FIR would substantiate the fact that the alleged criminal intimidation did not cause any alarm, and he did feel any immediate threat to his life. The delay in registering the FIR is itself fatal for the case of the complainant as the same will dilute his allegations of being criminally intimidated by the petitioners. Thus, no offence under Section 506 and 507 of the IPC as alleged in the FIR is established in the present case. 17. In this view of the matter and peculiar facts and circumstances of the case, this Court is of the considered opinion that the present case would fall within the parameters laid down by the Supreme Court in the case of Bhajanlal & Ors. (supra), whereby 7 categories are narrated as under: “(1) Where the allegations made in the First Information Report or the FIR, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the F.I.R. and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 23. Where, the uncontroverted allegations made in the F.I.R. or FIR and the evidence collected in support of the same do not disclose the commission of any offence and make out the case against the accused. 24. 23. Where, the uncontroverted allegations made in the F.I.R. or FIR and the evidence collected in support of the same do not disclose the commission of any offence and make out the case against the accused. 24. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 25. Where, the allegations made in the F.I.R. or FIR are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 26. Where, there is an express legal bare engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party 27. Where a criminal proceeding is manifestly attended with mala-fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” The present case would fall under the aforesaid categories 1 and 7. 18. In light of the aforesaid analysis and observations, the impugned FIR being C.R. No.I-90 of 2015 registered with Harij Police Station, District Patan deserves to be quashed and set aside. The further continuation of the criminal proceedings in relation to the impugned F.I.R. against the present applicants would be an unnecessary harassment to the applicant and would amount to the abuse of process of law and hence, to secure the ends of justice, the impugned F.I.R. is required to be quashed in exercise of inherent powers under Section 482 of the Code of Criminal Procedure, 1974. 19. For the reasons stated hereinabove, the present applications are allowed. Impugned F.I.R. being C.R.No. I-90/2015 registered at Harij Police Station, District Patan as well as all other consequential proceedings arising out of the aforesaid F.I.R are hereby quashed and set aside qua the applicants. 20. Rule is made absolute to the aforesaid extent. Direct service permitted. 21. Registry to place a copy of this order in the connected matter. Rule is made absolute.