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Gujarat High Court · body

2023 DIGILAW 172 (GUJ)

Rajeshbhai Hardhorbhai Manka v. State Of Gujarat

2023-01-20

GITA GOPI

body2023
ORDER : 1. The prayer is made in the Criminal Misc. Application (For Vacating Interim Relief) No.1 of 2022 for vacating interim relief granted to the respondents – original petitioner in the main matter vide order dated 22.11.2019. Advocate Mr. Aman A.Sama for the complainant submits that because of order dated 22.11.2019, no charge-sheet has been filed without the permission of the Court and the investigation has been stopped. 2. Thus, the prayer is made to vacate the interim relief granted vide order dated 22.11.2019, which read as under: “Prima facie, it appear that there exists civil transaction. Therefore, present application deserves consideration. Issue Notice returnable on 01.04.2020. Learned APP waives service of notice on behalf of the respondent – State. Meanwhile, no coercive steps shall be taken against the applicants. However, investigation to proceed in accordance with law, but charge sheet shall not be filed without permission of the Court. Direct service is permitted.” 3. The FIR shows as of dispute between landlord and tenant, thus, the main matter being Criminal Misc. Application No.21675 of 2019 be listed today. 4. In the main matter being Criminal Misc. Application No.21675 of 2019 filed under section 482 of the Code of Criminal Procedure, the petitioners as a landlord of the premises have prayed for quashing and setting aside of the FIR being C.R. No.II-114/2019 registered with Samakhiyari Police Station, for offences punishable under section 504, 506(2) and 114 of IPC and section 135 of the Gujarat Police Act. 5. As per the case, the petitioner no.1 is engaged in the business of hotel and restaurants in District Kutch and is a owner of non-agricultural land bearing Plot Nos.22 to 25 of Survey No.265 of village Samakhiyali, Taluka Bhachau, District – Kutch. It is stated that petitioner no.1 had constructed building and started a hotel in the name of ‘New Gangotri (Shivsagar) Hotel’ on the said land, which is on National highway No.8 on the road of Bhachau to Maliya. 5.1 It is further contended that petitioner no.1 used to give the said hotel ‘New Gangotri (shivsagar)’ on rent/leave and license and since respondent no.2 was interested in getting the said premises on rent/leave and license, he approached petitioner no.1 and after discussions and negotiations, petitioner no.1 agreed to give the said Hotel along with tables, chairs, fan and all equipments relating to hotel in working condition with running hotel. 5.2 It is further stated that the said property was given on leave and license basis for 11 months. The license fees was fixed at Rs.1,00,000/- per month; however, petitioner no.1 agreed to charge Rs.70,000/- per month for the first three months, and thus agreement dated 30.04.2019 was executed before the Notary Public on Rs.100/- non-judicial stamp paper on the condition mentioned therein, and was agreed upon by the petitioner no.1 and respondent no.2. 5.3 It is stated by the petitioners that the said hotel was given on leave and license to the respondent no.2 on the condition to give total deposit of Rs.16,00,000/-, and thus it is stated that accordingly respondent no.2 issued cheque of Rs.5,00,000/- to petitioner no.1 dated 26.04.2019 and Rs.5,00,000/- and Rs.3,00,000/- were paid in cash and also paid Rs.3,00,000/- to previous tenant towards refund of deposit by cheque dated 01.08.2019 drawn on State Bank of India. 5.4 It is further stated that, it was agreed that on vacating the hotel by respondent no.2 on expiry of the term of agreement, petitioner no.1 has to return the deposit and if the respondent no.2 (tenant) vacates the hotel before expiry of the term, then he will not be entitled to claim return of deposit. It is also stated that on page no.2 of the agreement, it is provided that if any item is to be purchased, it will have to be purchased by the tenant and amount will be deducted from the rent or it will be adjusted towards deposit and it is also provided in the agreement that if owner requires any article, the tenant will provide it to the owner. The premises was given on rent along with Pan Galla, Chiki Jelly, Tea, Breakfast, Cold Drinks, Ice cream items. The time limit of the agreement was for 11 months starting from 01.05.2019 to 01.03.2020, and, the respondent no.2 had agreed to hand over peaceful and vacant possession on the expiry of the period of agreement. 5.5 It is further stated by the petitioners that, after paying rent/license fees regularly for some time, the respondent no.2 became irregular in payment of rent/license fees from September, 2019 on the pretext of heavy rain and in the monsoon season there was no business and therefore was not in a position to pay the rent. 5.5 It is further stated by the petitioners that, after paying rent/license fees regularly for some time, the respondent no.2 became irregular in payment of rent/license fees from September, 2019 on the pretext of heavy rain and in the monsoon season there was no business and therefore was not in a position to pay the rent. 5.6 The petitioners state that, with a view to escape from his liability to pay the rent, since vacated the hotel premises prior to the expiry of the agreement, thus to recover the amount of deposit, the respondent no.2 has filed complaint with Samakhiyari Police Station on 21.10.2019 inter alia stating that he had made application dated 03.09.2019 to the police, wherein he has stated that he had taken the Hotel Shiv Sagar on rent from its owner – petitioner no.1, before four months and executed notarized agreement and the rent was fixed at Rs.70,000/- for the first three months and thereafter rent of Rs.1,00,000/- per month was to be paid. The respondent no.2 alleges in the said complaint that after one month of his taking hotel on rent, petitioner no.1 started harassing him and went on taking whatever item he required from the premises. It is alleged that petitioner no.1 used to take away A.C., water cooler, Table, Chair and hence he was fed up and therefore he had decided to vacate the hotel and asked to refund the deposit of Rs.16,00,000/- given by him to petitioner no.1, but he disagreed to return the same and on 03.09.2019 he had vacated the hotel. 5.7 The FIR suggests that the complaint has been given on the premise that petitioner no.1 and his son i.e. petitioner no.2 – Ghanshyambhai Rajeshbhai Manka, have come to the hotel on being called by the respondent no.2 and they had taken the complainant to the office of the hotel. The complainant alleges that petitioners started abusing him and his partner and told that deposit will not be returned and one month’s rent which is outstanding will have to be paid. The complainant alleges that petitioners started abusing him and his partner and told that deposit will not be returned and one month’s rent which is outstanding will have to be paid. It is stated by the complainant that he had informed the petitioner about his reason for vacating the premises; however, petitioner no.1 started giving threats and at that time son of petitioner no.1 had taken out knife from his waist and given threats to respondent no.2 and his partner to kill them, and therefore, respondent no.2 called his brother residing at America by mobile phone, who called the police control room and Samakhiyali Police Station, thus, police came to the hotel and took them away and thereafter he had made an application to S.P. Office, Gandhidham. 5.8 The complainant – respondent no.2, alleges that the incident occurred at 2.30 p.m. on 03.09.2019. The said complaint was registered with Samakhiyari Police Station on 21.10.2019 vide the impugned FIR. 6. Mr. Aman A.Sama, learned advocate for the complainant, respondent no.2, submits that the petitioners had threatened and abused him and petitioner no.2 had showed him a knife and ultimately he had to called his brother at America, who thereafter informed the police and police came and rescued him and thus that fact itself would be enough for filing of the charge-sheet. 7. Learned Public Prosecutor, submitted that any First Information Report should be quashed in accordance with the guidelines of the Apex Court and the parameters laid down therein. 8. The dispute appears to be with regard to the leave and license/rent agreement of the hotel, which was for the period of 11 months. The copy of the rent agreement is produced on record. As per the petitioners, the necessary clauses were incorporated in the agreement with regard to the articles, which were to be purchased. Further necessary conditions were there regarding the deposit money. The petitioner states that he is the owner of three hotels and is running two more hotels in the vicinity. One water cooler lying unused in the hotel premises was taken by him and since the respondent no.2 wants to come out of the terms and conditions of the agreement, he has filed false and frivolous complaint. 9. The dispute between the parties appears to be purely civil in nature; the remedy lies before the Civil court. One water cooler lying unused in the hotel premises was taken by him and since the respondent no.2 wants to come out of the terms and conditions of the agreement, he has filed false and frivolous complaint. 9. The dispute between the parties appears to be purely civil in nature; the remedy lies before the Civil court. As per the FIR dated 21.10.2019, the complainant had taken the hotel Shivsagar from his owner Rajeshbhai Hardhorbhai Manka, petitioner no.1, under rent agreement for 11 months, which was executed before the notary. The monthly rent for the initial three months was Rs.70,000/- and thereafter the amount of Rs.1,00,000/- was decided. The FIR suggests that within a period of one month there were harassment from the accused with regard to A.C., water cooler and table and chairs, which the petitioner took away and therefore the complainant was fed up. It came to his knowledge that earlier too a person who had taken the hotel on rent had run away without even taking the deposit money. 9.1 The complainant has alleged that about Rs.16,00,000/- have been given by him as a deposit and the petitioners as accused have failed to return the same. Thereafter, the complainant vacated the hotel on 03.09.2019 and on that day he had invited the petitioners in the hotel and both of them had taken him in the office and it is stated that, at that time Mustkim Mahamedhussain Thradra, Mahemed Sidik Adam Saudi Hizibur Rahman and Abdul Karik Sunesara were there and the accused had started abusing him and his partners and had refused to give the deposit money stating that one month rent is outstanding and also questioned him as to why he vacated the premises without asking the petitioner. It is alleged that petitioner no.1 has threatened the complainant and his son, petitioner no.2, removed the knife from his waist and had threatened to kill him and his partners, and after informing his elder brother at America, who had phoned the police control room and thereafter the police came there and had taken him away from the premises. 10. Whether the complainant – respondent no.2 was entitled for the deposit amount or whether the petitioners as owners of the hotel premises were entitled to retain the money or any outstanding dues were to be recovered are issues which have to be decided by the Civil Court. 10. Whether the complainant – respondent no.2 was entitled for the deposit amount or whether the petitioners as owners of the hotel premises were entitled to retain the money or any outstanding dues were to be recovered are issues which have to be decided by the Civil Court. It appears that the complaint was not registered on 03.09.2019; however, after a delay the complaint came to be registered on 21.10.2019. The FIR further states that the complainant had given some application before the S.P. Office Gandhidham and therefore the petitioners – accused had threatened to kill him and his partners and thus he filed the complaint. The delay in registration of the complaint is not known. The impugned FIR is in connection with the fact that the complainant had given some application before the S.P. Office Gandhidham and thus the present petitioners threatened to kill him and his partners. On the day when the alleged threat was administered no FIR was registered. 11. In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604 , the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Apex Court in the said case made the following observations:- “8.1. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Apex Court in the said case 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.” 11.1 In the case of International Advanced Research Centre For Powder Metallurgy And New Materials (ARCI) & Ors. Vs. Nimra Cerglass Technics (P) Ltd & Anr., reported in 2015 LawSuit (SC) 885, the Hon’ble Apex Court held that distinction between breach of contract and the cheating would depend upon the intention of the accused at the time of alleged inducement. If it is established that the intention of the accused was dishonest at the time when accused made a promise and entered into a transaction with the complainant to part with the property or money, then the liability is criminal and the accused is guilty of the offence of cheating. On the other hand, if all that is established that a representation made by the accused has subsequently not been kept, criminal liability cannot be foisted on the accused and the only right which the complainant acquires is the remedy for breach of contract in a Civil Court. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown at the beginning of the transaction. 11.2 In the case of Indian Oil Corporation v. Nepe India Limited reported in 2006 (6) SCC 736 , the Hon’ble Apex Court while referring to the jurisdiction under Section 482 of the Cr.P.C. has laid down principles for the parties for quashing of the criminal proceedings which reads as under :- “It is to seen if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which High Court is to exercise its jurisdiction under Section 482 of the Code, Jurisdiction under this Section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. 11.3 In the above decision, the Hon’ble Apex Court has observed the fact of a growing tendency in business circles to convert purely civil disputes into criminal cases and has referred to the decision of the Hon’ble Apex Court in the case of G. Sagar Suri v. State of Uttar Pradesh reported in 2000 1 SC 360. 11.3 In the above decision, the Hon’ble Apex Court has observed the fact of a growing tendency in business circles to convert purely civil disputes into criminal cases and has referred to the decision of the Hon’ble Apex Court in the case of G. Sagar Suri v. State of Uttar Pradesh reported in 2000 1 SC 360. The Apex Court was of the view that there is an impression that the civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, through any criminal prosecution should be deprecated and discouraged. 12. There was no FIR on 03.09.2019, though the police had come at the premises, as stated, to rescue the complainant, no complaint has been lodged by the police on that day on any fact of knife, which is alleged to have been removed by the son of landlord from his waist. The continuance of FIR would lead to wastage of precious judicial time, as the dispute could be settled by the Civil Court and therefore this Court is of the opinion that this is 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. 13. In the result, the petition is allowed. The impugned FIR being C.R. No.II-114/2019 registered with Samakhiyari Police Station is quashed and set aside qua the present petitioners. 14. In view of the order passed in the main matter, no order in Criminal Misc. Application (For Vacating Interim Relief) No.1 of 2022, the same stands disposed of accordingly.