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2022 DIGILAW 1174 (GUJ)

Sachinbhai Sureshbhai Patel v. State of Gujarat

2022-09-30

VAIBHAVI D.NANAVATI

body2022
ORDER : 1. Heard Mr. P.P. Majmudar, learned advocate appearing for the applicants, Ms. Maithili D. Mehta, learned Additional Public Prosecutor appearing for the respondent No.1 - State and Mr. Kaivan K. Patel, learned advocate appearing for the respondent No.2-original complainant. 2. By way of this application, the applicants herein have prayed for quashing of FIR being C.R. No.I-41 of 2016 dated 15.04.2016 registered with Siddhpur Police Station, District Patan, for the offence punishable under Sections 406, 420 and 114 of the Indian Penal Code, 1860. 3. Mr. P.P. Majmudar, learned advocate appearing for the applicants submitted that the impugned FIR fails to constitute the alleged offences against the applicants herein and that the said FIR is nothing but an abuse of process of law and the same does not disclose any cognizable offence against the applicants herein. Mr. P.P. Majmudar, learned advocate appearing for the applicants also submitted that respondent No.2 while instituting the impugned complaint substrate the fact that an earlier complaint was instituted by the respondent No.2 before the Police Sub Inspector, Manjalpur, District Vadodara, leveling similar allegations wherein after preliminary inquiry, the police submitted a report stating that respondent No.2 - original complainant was not present to give his statement and that the complaint came to be filed by the respondent authority. The complaint filed by the respondent No.2 was for recovery of money and hence, the said complaint was not entertained and a closure report to the said effect came to be filed on 29.03.2016. It appears that the applicants herein gave their statements in the said preliminary inquiry on 05.03.2016 and 22.03.2016. The copy of the said reports are duly produced on record ad Annexure-C (Collectively). The facts required adjudication of the present FIR as stated by the applicants herein are stated thus:- The respondent No.2 filed impugned FIR alleging FIR dated 15.04.2016 and stating that the respondent No.2 - original complainant started business of agro products at Nedhra village in Siddhpur District Patan. It is alleged that the respondent No.2 was in need of processing machine and therefore, the respondent No.2 contacted the applicant herein who is one of the partners of ANG Enterprice. It is also alleged in the impugned FIR that a quotation was sent for 16 machines amounting to Rs.26,73,000/- by email by the applicant herein. It is alleged that the respondent No.2 was in need of processing machine and therefore, the respondent No.2 contacted the applicant herein who is one of the partners of ANG Enterprice. It is also alleged in the impugned FIR that a quotation was sent for 16 machines amounting to Rs.26,73,000/- by email by the applicant herein. It is further alleged that meeting was held between the parties on 29.08.2014 and that the parties agreed to pay Rs.10,00,000/- was to be paid as down payment and allegedly on 29.08.2014 The respondent No.2 gave a cheque of Rs.5,00,000/- to the applicant herein. It is further alleged that thereafter on 27.09.2014, another cheque of Rs.5,00,000/- was also given by the respondent No.2 to the applicant herein and receipts were also issued by email. It is also alleged that though the aforesaid payment was duly paid, the machinery was not delivered to the respondent No.2 and in view of above, the applicants were told that by the respondent No.2 to refund the down payment. However, the said amount was not refunded and the machinery was also not been delivered. Resultantly, the respondent No.2 was constrained to file impugned FIR. 4. Mr. Kaivan Patel, the learned advocate appearing for the respondent No.2 - original complainant was not in a position to controvert the fact that the complaint impugned is identical to the first complaint which was filed by the respondent No.2 at Manjalpur Police Station, District : Vadodara,which is duly produced at page No.31. 5. Ms. Maithili D. Mehta, the learned Additional Public Prosecutor appearing for the respondent No.1 - State submitted that the applicantaccused has a factory preparing machines utilised for preparing packing material, which is situated at Vadodara so the second cheque was also delivered at Vadodara and therefore, Vadodara Police Station would have the jurisdiction. Similarly, the respondent No.2-original complainant has a agro product factory which is a packing material preparing factory which is situated at Siddhpur. 6. Having heard the learned advocates appearing for the respective parties. At this stage, it is apposite to refer to position of law as laid down by the Hon'ble Apex Court in the Criminal Appeal No.834 of 2017 dated 08.08.2019. It is apposite to refer paragraphs No.2.2, 4, 4.1, 4.2 and 4.3 which reads thus :- "2.2 That the aforesaid prayers/reliefs were opposed by the appellants herein and respondent Nos. 2 and 3 herein. It is apposite to refer paragraphs No.2.2, 4, 4.1, 4.2 and 4.3 which reads thus :- "2.2 That the aforesaid prayers/reliefs were opposed by the appellants herein and respondent Nos. 2 and 3 herein. It was submitted that the original complainant had earlier preferred an application under Section 156(3) of the Cr.P.C. which came to be rejected by the learned Magistrate, vide order dated 27.03.2015 and that the said order was not assailed by the complainant and thereafter a fresh private complaint under Section 200 Cr.P.C. has been preferred which is pending before the learned Magistrate. It was also submitted on behalf of the original accused that the dispute is of a civil nature which is tried to be converted into criminal, which is nothing but an abuse of the process of law. It was submitted that despite having the knowledge of the mortgage of the property with the Andhra Bank, thereafter the complainant himself had paid the mortgage money to the Andhra Bank and even got the sale deed executed in his favour. It was submitted that if the complainant was aggrieved, in that case, he would not have got the sale deed executed in his favour. 4.1 Even considering the nature of allegations in the complaint, we are of the firm opinion that no case is made out for taking cognizance of the offence under Section 420/34 IPC. The case involves a civil dispute and for settling a civil dispute, the criminal complaint has been filed, which is nothing but an abuse of the process of law. 4.2 It is required to be noted that after having come to know that the property was mortgaged with the Andhra Bank, the original complainant himself paid the mortgage money and got the mortgage redeemed. Not only that, thereafter, he got the sale deed executed in his name. Thereafter also, he filed the complaint with the learned Magistrate, being an application under Section 156(3) of the Cr.P.C., which came to be rejected by the learned Magistrate, vide order dated 27.03.2015. The said order was not assailed by the complainant. It appears that thereafter he filed a private complaint under Section 200 Cr.P.C. which was pending before the learned Magistrate. Despite the above, he filed a writ petition before the High Court, which is nothing but an abuse of the process of law. The said order was not assailed by the complainant. It appears that thereafter he filed a private complaint under Section 200 Cr.P.C. which was pending before the learned Magistrate. Despite the above, he filed a writ petition before the High Court, which is nothing but an abuse of the process of law. The criminal proceedings have been initiated by the original complainant to settle the civil dispute. Therefore, in the facts and circumstances of the case, the Investigating Officer and other police officers were justified in not registering the FIR and in coming to the conclusion that the complaint be filed. The earlier opinion on preliminary inquiry was never placed before the DCP. Thereafter, on thorough investigation/inquiry and considering the facts and circumstances of the case narrated hereinabove, when it was opined that the dispute between the parties is of a civil nature, the High Court ought not to have issued further directions. The High Court ought to have closed the proceedings. Not only the High Court has issued further directions, but even has imposed costs and an action against the appellants 3 to 5 herein which, in the facts and circumstances of the case, is not sustainable. 4.3 In view of the above and for the reasons stated above and as observed hereinabove, the initiation of the criminal proceedings by the original complainant is nothing but an abuse of the process of law, we not only quash and set aside the impugned judgment and order, but also quash the criminal proceedings pending before the learned Magistrate in respect of the transaction in question. Consequently, the present appeal is allowed, the impugned judgment and order dated 13.01.2017 passed by the High Court is hereby quashed and set aside. Even the criminal proceedings initiated by the original complainant pending before the learned Magistrate in respect of the transaction in question are hereby quashed and set aside." 7. In the facts of the present case, it is an undisputed fact that the respondent No.2 - original complainant herein preferred a complaint before the Manjalpur Police Station being application No.66 of 2016 for the same transaction as stated in the Second FIR. The contents of the FIR as stated above are not repeated. In the facts of the present case, it is an undisputed fact that the respondent No.2 - original complainant herein preferred a complaint before the Manjalpur Police Station being application No.66 of 2016 for the same transaction as stated in the Second FIR. The contents of the FIR as stated above are not repeated. The said complaint came to be filed by the respondent authority on 29.03.2016 and the operative paragraph of the said report reads thus :- "As the applicant gave Rs.10,00,000/- only, the respondent was to receive the finance money from the applicant at the rate of 5%. As the applicant does not take the machinery for some reasons and gives vague reply and as no other person can purchase the said machinery, our money is blocked in the said machinery, which has caused huge loss to us. As it has been stated that the applicant does not take the machinery, the applicant was contacted but he did not come to give his statement till date. It appears that he has submitted this application with the intention of earning money from the respondent. Therefore, as it appears that no action is required to be taken with respect to this application, the officer is requested to file the said application. Date: 29/03/2016." 8. The FIR which is impugned and which is duly produced at page 28 dated 15.04.2016, admittedly has been filed subsequently after the respondent authority closed the complaint on 29.03.2016 as stated above. The aforesaid FIR being C.R. No.I-41 of 2016 dated 15.04.2016 culminated into chargesheet, which is also duly produced at page No.44. The said charge-sheet came to be filed on 19.11.2020. 9. Having considered the documents which are produced on record and the nature of the complaints impugned, in view of this Court and in view of the ratio laid down by the Hon'ble Apex Court, in view of this Court, the complaint which is impugned and which has culminated into Criminal Case No. 1235 of 2021 would not be maintainable since the first complaint came to be closed and which was the same subject matter. On this ground alone, this Court is inclined to allow the application filed by the applicants herein. Consequently, the impugned FIR which has culminated into the criminal case No.1235 of 2021 stands quashed and the said proceedings which has resulted in Criminal Case No.1235 of 2021 shall stands terminated. On this ground alone, this Court is inclined to allow the application filed by the applicants herein. Consequently, the impugned FIR which has culminated into the criminal case No.1235 of 2021 stands quashed and the said proceedings which has resulted in Criminal Case No.1235 of 2021 shall stands terminated. 10. It is however, kept open for the respondent No.2 to take steps as permissible in the law. 11. This Court has otherwise not gone into the merits of the matter. 12. Rule is made absolute to the aforesaid extent.