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Gujarat High Court · body

2019 DIGILAW 736 (GUJ)

Aravind Omkarnath Talla v. State of Gujarat

2019-07-10

A.S.SUPEHIA

body2019
JUDGMENT : A.S. Supehia, J. 1. As both these applications arise out of the same F.I.R., the same are decided analogously. 2. The present applications have been filed seeking quashing of the F.I.R. registered at Adalaj Police Station, District Gandhinagar being C.R. No. I-107 of 2013 for the offences punishable under Secs. 406, 420, 467, 468, 471 and 114 of the Indian Penal Code, 1860 ('the I.P.C.' for short). 3. The allegations in brief as culled out of the F.I.R., are as follows: 3.1. The complainant, Mr. Viren Bharatbhai Shah, is an employee of the company M/s. Manav Nesvi Infrastructure Pvt. Ltd. It is alleged in the F.I.R. that the complainant-company decided to open a gaming zone on the 2nd Floor of Balaji Agora Mall and for that contacted the accused persons during July, 2012 and between July, 2012 and January, 2013, paid an amount of Rs. 95,00,000/- by cheques to the accused persons. It is alleged that thereafter the complainant came to know that bad quality of material is supplied to the complainant and out of 8 machines, 3 are not working. It is alleged that the bill issued to the complainant is forged. Thereafter, the complainant has been trying to contact the accused but the accused are not taking the calls of the complainant, and hence, F.I.R. has been filed. 4. Learned Advocate Mr. Narendra Jain appearing for the applicant has submitted that the F.I.R. does not disclose an offence punishable under Sec. 406 of the I.P.C. He has submitted that the essential ingredients for the commission of said offence are woefully lacking in the F.I.R. He has also submitted that as per the complainant, there is no written contract with respect to the transactions of sale, and it is settled law that in the sale, there is no entrustment, and the entrustment being an essential ingredient for attracting the offence of criminal breach of trust punishable under Sec. 406 of the I.P.C. cannot be made out against the present applicant. Thus, he has submitted that the impugned F.I.R. is required to be quashed and set aside. 5. Learned Advocate Mr. Narendra Jain for the applicant has submitted that if the F.I.R. is perused, there are no averments, which would warrant even remotely the invocation of the provisions of Sec. 420 of the I.P.C. qua the applicant. Thus, he has submitted that the impugned F.I.R. is required to be quashed and set aside. 5. Learned Advocate Mr. Narendra Jain for the applicant has submitted that if the F.I.R. is perused, there are no averments, which would warrant even remotely the invocation of the provisions of Sec. 420 of the I.P.C. qua the applicant. He has submitted that admittedly no averments regarding the applicants having made any representations to the complainant are there in the F.I.R., and hence, there is no question of any false representations having been made by the applicants. Thus, he has submitted that no offence of cheating can be made out against the applicants. 6. Learned Advocate Mr. Narendra Jain for the applicant has submitted that there is no question of any forgery having been committed with respect to the bill by the applicants because the bill referred to in the F.I.R. bears the signatures of the applicant himself and there is no other signatures of any other persons. He has submitted that if no offence of making a false document can be admittedly made out against the applicants, there is no question of the applicant having committed any offence relating to using of any forged documents. He has further submitted that the complainant has maliciously filed the impugned F.I.R. with false details because the F.I.R. carries a statement that an amount of Rs. 95,00,000/- were paid to the applicant between July, 2012 and January, 2013. However, if the Bank statements of the applicants are seen, the said amount has been paid upto the year 2013. 7. Learned Advocate Mr. Narendra Jain for the applicants has submitted that in fact the applicants have to recover money from the complainant's company for the works executed by the applicants and the impugned F.I.R. seems to be an attempt to not pay the dues of the applicants. Thus, he has submitted that the impugned F.I.R. is required to be quashed and set aside. 8. Learned Advocate Mr. Dipen Desai appearing for the applicant Nos. 1 to 3 has submitted that in fact the applicant No. 1 has introduced accused No. 4, who is the broker and dealing with gaming machines whereas accused Nos. 2 and 3 are the employees of accused No. 1. Thus, he has submitted that no offence as mentioned in the impugned F.I.R. is established. 1 to 3 has submitted that in fact the applicant No. 1 has introduced accused No. 4, who is the broker and dealing with gaming machines whereas accused Nos. 2 and 3 are the employees of accused No. 1. Thus, he has submitted that no offence as mentioned in the impugned F.I.R. is established. He has submitted that the F.I.R. if read is in its entirety, it discloses a civil dispute which is painted with the colour of criminal offence. 9. Learned Advocates appearing for the respective parties have further submitted that in fact the applicants admitted that the invoice bears their signatures and the entire payment was given in July, 2012 and January, 2013 and machines were installed only thereafter the payment was given, which shows that the owner of the Mall was satisfied with the conditions of the machines. It is submitted that if at all the machines were subsequently found to be having technical difficulties, then the same can be said to be a civil and cannot give rise to criminal liability. Thus, it is submitted by learned Advocates that the impugned F.I.R. is required to be quashed and set aside. 10. Learned A.P.P. Mr. Hardik Soni on the instructions of the Investigating Officer has submitted that the investigation is over and the Investigating Officer has recorded the statements of various witnesses. He has submitted that the statement of Supervisor of the complainant was recorded by the Investigating Officer, which reveals that after some time, the gaming machines, which were installed in the Mall, were not working due to technical difficulties. However, he has submitted that no forgery has been established in the investigation. He has submitted that at this stage, the impugned F.I.R. may not be quashed and set aside. 11. I have heard the learned Advocates appearing for the respective parties. I have also perused the papers of the investigation. 12. The contents of the impugned F.I.R. reveal that the complainant has alleged that after paying an amount of Rs. 95,00,000/- towards the gaming machines, the same were not functioning properly since they were of bad quality material. It is not in dispute that at the time of installation of the gaming machines, the same were verified and only after assuring the functioning of the machines, the amount was paid. 13. 95,00,000/- towards the gaming machines, the same were not functioning properly since they were of bad quality material. It is not in dispute that at the time of installation of the gaming machines, the same were verified and only after assuring the functioning of the machines, the amount was paid. 13. Thus, even if the allegations made in the entire F.I.R. are taken at their face-value, the ingredients of offence of cheating, criminal breach of trust and forgery are not established in the present case. The investigation does not reveal that the offence of forgery has been established. The present applicants are mala fidely with an oblique motive are embroiled in the criminal prosecution in order to extract money from them. The nonfunctioning of the gaming machines or facing a technical glitch falls within the domain of civil dispute, and such dispute is sought to be converted into a criminal offence. 14. On the backdrop of the aforenoted analysis, the present applications are allowed. Impugned F.I.R. being C.R. No. I-107 of 2013 registered at Adalaj Police Station, District Gandhinagar, as well as all other consequential proceedings arising out of the aforesaid F.I.R. are hereby quashed and set aside qua the applicants. Rule is made absolute. Direct Service permitted.