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2023 DIGILAW 110 (GUJ)

Samir Mahendrabhai Patel v. State Of Gujarat

2023-01-12

GITA GOPI

body2023
ORDER : 1. Rule returnable forthwith. Mr. Dhawan Jayswal, the learned APP waives service of notice of rule for and on behalf of the respondent No.1-State of Gujarat. Mr. Bhavik Samani, the learned advocate waives service of notice of rule for and on behalf of the respondent No.2-original first informant. 2. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused no.4 seeks to invoke the inherent powers of this Court praying for quashing of the Criminal case No.87912 of 2022 pending before the Court of learned 2nd Additional Chief Metropolitan Magistrate, Ahmedabad arising from the F.I.R. being C.R.No.I-79 of 2019 filed before the Vasna Police Station, District-Ahmedabad for the offence punishable under Sections- 406, 420, 409, 120B, 34 and 114 of the Indian Penal Code. 3. The applicant is accused no.4 of the impugned F.I.R. being C.R.No.I-79 of 2019 registered with Vasna Police Station, District - Ahmedabad is contending that he has committed no offence and the F.I.R. registered against him smacks of malafide and is with ulterior motive and the facts suggests that he is innocent and has been wrongly named in the FIR and falsely implicated. 4. Heard Mr. Jal Unwala, learned senior advocate assisted by Mr. Dhanesh Patel, learned advocate appearing for the applicant – accused no.4; Mr. Dhawan Jayswal, learned APP appearing for the respondent no.1- State of Gujarat and Mr. Bhavik Samani, the learned advocate appearing for the respondent no.2 – original complainant. 5. Mr. Jal Unwala, learned senior advocate submits that the complainant is a President of Trustnagar Co. Op. Housing Society since last more than one year. Prior to the F.I.R., the society is a registered society and during the period of 2009 to 2011, the original accused no.5 [now deceased] had been serving as a President; original accused no.1 had been serving as Secretary and original accused no.2 had been serving as Chairman. Mr. Unwala submitted that during the said period, the society was not in a position to look after, the common plot bearing survey no.226 admeasuring 1300 sq.mtr., had decided to either sell or give on rent the said plot and therefore, the committee members of the society passed a resolutions dated 26.07.2009 and 04.07.2010 according to which 11 committee members were authorized to take decisions with regard to the said plot. Mr. Mr. Unwala submitted that the allegations are against the accused nos.1, 2 and 5 misusing the powers assigned to them by the society and accused no.6 [now deceased] who for their personal gain had decided to sell the plot in question to accused no.3 for a consideration of Rs.1,85,00,000/-. Mr. Unwala submitted that as per the complaint, all the four accused had executed MOU as well as Banakhat with accused no.3 and in the said banakhat, the resolution dated 04.07.2010 has been allegedly misused. 6. Mr. Unwala, learned senior advocate further submitted that the only allegation against the present applicant is for aiding accused no.3 monetarily and the allegation is that he had given a cheque dated 30.03.2011 of Bank of Baroda for an amount of Rs.10,00,000/-. Mr. Unwala submitted that providing money to accused no.3 would not be an offence. He further submitted that the alleged banakhat is executed on 15.11.2011, whereas the cheque was given on 30.03.2011 and thus, Mr. Unwala submitted that how the money given on 30.03.2011 by way of cheque would have any relevance with the banakhat without any possession which was registered before the Sub-Registrar, Paldi on 16.11.2011. 7. Mr. Unwala, learned senior advocate submitted that aiding money or lending money is not crime unless it falls under the Money Laundering Act and no such act has been invoked. He further submits that there is no such allegation from accused no.3 – Pankaj Jayantilal Shah against the present application of being party to the banakhat. He further submitted that the present applicant is not even member of the society. 8. Mr. Jal Unwala, learned senior advocate further submitted that G.T.K. Trading Private Limited has also given two cheques on 31.03.2011 for an amount of Rs.5,00,000/- each to Pankaj Jayantilal Shah while G.T.K. Trading Private Limited is not made accused. 9. Mr. Unwala further submitted that as per the F.I.R. dated 02.08.2019, a notorized MOU was executed by Mahendrabhai Pushkarnath Trivedi; Alkeshbhai Maheshbhai Shah and Indravadan Popatlal Shah with Pankaj Jayantilal Shah and at that time Rs.15,00,000/- was given and on 05.04.2011 again Rs.15,00,000/- was given and for that receipt signed by Ramanbhai and Alkeshbhai was given to Pankajbhai Shah. Further allegation is that on 14.04.2011 a simple MOU was executed by Mahendrabhai Trivedi, President and Alkeshbhai Shah wherein, Mr. Indravadan Shah, had signed the document as a witness. Further allegation is that on 14.04.2011 a simple MOU was executed by Mahendrabhai Trivedi, President and Alkeshbhai Shah wherein, Mr. Indravadan Shah, had signed the document as a witness. The said MOU reflects a cheque No.332837 without any date, drawn on Rajkot Nagrik Sahakari Bank, Ahmedabad for an amount of Rs.5 lakh, given to the society, but the said cheque was not presented before the bank. It is stated that as per the FIR, the cheque was to be deposited for title clearance. It is alleged that without title clearance, a banakhat without possession was executed on 16.11.2011, while there is no entry with regard to the said cheque in the society record. Mr. Unwala further submitted that a general meeting was conducted by the society and the allegation against three office bearers regarding siphoning of money was made, which they had withdrawn as self, by way of different cheques, which amounts goes to Rs.30 lakh and had caused loss to the society. 10. Mr. Unwala further submitted that F.I.R. registered is with the only allegation against the present applicant, of aiding Pankaj Shah for an amount of Rs.10 lakh while the said amount has no such connection with the MOU or the banakhat executed by the society, through its office bearers. 11. Mr. Bhavik Samani, learned advocate appearing for the respondent no.2 submitted that the FIR came to be registered under the instruction of the Registrar of the society. The allegation against the present applicant is of criminal conspiracy under Section-120B of the IPC, where complainant says that the real mastermind is the present applicant who is supporting Pankaj Jayantilal Shah and their intention is to usurp the common plot of the society and thus, the investigation is required to be conducted so as to bring out the case of conspiracy, which is alleged by the complainant against the present applicant. He further submits that during the court commission, which was drawn in the civil proceeding being Lawad Suit No.264 of 2011 and Civil Suit No.529 of 2018, the present applicant was present as a witness. 12. He further submits that during the court commission, which was drawn in the civil proceeding being Lawad Suit No.264 of 2011 and Civil Suit No.529 of 2018, the present applicant was present as a witness. 12. The fact suggests that Lawad Suit No.264 of 2011 was before the Board of Nominees; about 37 disputants had filed the case against five of the opponents where opponent no.1 is the Trustnagar Co-operative Housing Society; opponent no.2 is Indravadan Popatlal Shah as a Chairman; opponent no.3 is Mahendrabhai P. Trivedi as a President; opponent no.4 is Alkeshbhai Mahendrabhai Shah as a Secretary and opponent no.5 is Pankaj Jayantilal Shah. As per order dated 23.11.2011 of Board of Nominees passed by the Deputy Registrar & Member, Board of Nominee, Ahmedabad Division, Ahmedabad, the relief in terms of Para-20(A) has been granted till the disposal of the suit. 13. The only allegation against the present applicant is that he has given Rs.10 lakh on 30.03.2011 to Pankaj Jayantilal Shah and at the same time, on 31.03.2011 one GTK Private Limited had also given two cheques, each of Rs.5 lakh to Pankaj Jayantilal Shah, but the GTK Private Limited has not been made an accused in the FIR. There could not be any case of criminal conspiracy drawn merely because of some money lended to Pankaj Jayantilal Shah with whom the MOU/Banakhat as alleged in the FIR, has been drawn. Lawad Suit finally decides the dispute of the society with the members, there is no prima-facie case against the present applicant. 14. Learned APP submitted that any first information report should be quashed in accordance with the guidelines of the Apex Court and parameters laid down there. It is further submitted that because of the interim relief, no further progress could be made in the matter. 15. Countering the above submission of the learned APP, it is submitted by learned advocate for the applicant Mr. Unwala submits that investigation has already been completed and chargesheet has been filed. 16. In case of State of Haryana V. Bhajan Lal and Others reported in AIR 1992 SC 604 , the Apex Court made the following observations:- “8.1. 15. Countering the above submission of the learned APP, it is submitted by learned advocate for the applicant Mr. Unwala submits that investigation has already been completed and chargesheet has been filed. 16. In case of State of Haryana V. Bhajan Lal and Others reported in AIR 1992 SC 604 , the Apex Court made the following observations:- “8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:- (a) where the allegations made in the First Information Report or the complaint, 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; (b) where the allegations in the First Information Report 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; (c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (d) where the allegations in the FIR 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; (e) where the allegations made in the FIR or complaint 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; (f) where there is an express legal bar 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; (g) 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.” 17. In view of the foregoing discussion and the ratio laid down in the above referred judgment there exist no scope for any further proceeding in the matter. The continuance of proceedings against the applicant would be abuse of process of court, the FIR read in entirely does not constitute any offence against the applicant. Hence, the court is of the opinion that this a fit case where the inherent powers of the court under section 482 of the Cr.P.C. could be exercised for securing the ends of justice. 18. In the result, this application is allowed. The Criminal case No.87912 of 2022 pending before the Court of learned 2nd Additional Chief Metropolitan Magistrate, Ahmedabad arising from the F.I.R. being C.R.No.I-79 of 2019 filed before the Vasna Police Station, District-Ahmedabad is hereby ordered to be quashed and all consequential proceedings pursuant thereto qua the present applicant shall stand terminated. Rule is made absolute. Direct service is permitted.