Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 203 (GUJ)

Noorjahanbibi Mubinali Saiyed v. State Of Gujarat

2023-01-25

GITA GOPI

body2023
JUDGMENT : 1. Rule. Mr. Dhawan Jayswal, learned APP waives service of Rule on behalf of the respondent– State. 2. This application has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) for quashing the FIR bearing CR No.I-0032/2019 registered with City Police Station, Vadodara for offences punishable under sections 384, 386, 506(2) and 114 of the IPC as well as Sections 40 and 42 of the Money Lenders Act and to terminate all the subsequent proceedings in connection with the FIR. 3. The complaint has been filed by the respondent no.2 stating that she had borrowed a sum of Rs.2 lacs from the applicant and she had given undated cheque of SBI and stated that she used to regularly pay the interest amount to the applicant and on selling her Zamzam Apartment, House no.101, had paid Rs.2 lacs to the present applicant. It is stated that the complainant had in all paid Rs.5 lacs to the applicant and despite that the applicant used to always demand Rs.2 lacs and has threatened to deposit the cheque and would get it bounced and would send her to jail. 4. Mr. Thakkar submits that Criminal Case no.42127 of 2016 was filed against the complainant - respondent no.2 by the present applicant under Section 138 of the Negotiable Instruments Act who was sentenced to one year simple imprisonment and also ordered to pay the compensation amount of Rs.2,03,000/- under Section 357 of the Cr.P.C. Against that, she has filed Criminal Appeal no.43 of 2020 before the learned Additional Sessions Judge, Vadodara and the appeal was dismissed on 24.3.2022 confirming the conviction. Copy of the said orders are placed on record. 4.1 Mr. Thakkar submits that in Criminal Case no.42127 of 2016, the complainant had vide Exh.17 on 28.1.2019 had given an undertaking of payment of the amount, Rs.2 lacs as per the terms in the undertaking which fact itself suggests that the complaint is false and fabricated on the face of the record. 4.2 The complainant, by filing Criminal Misc. Application no.1 of 2023 in the present matter, has made prayer for vacating the adinterim relief granted by this Court in terms of Paragraph 8(C) through which this Court had ordered to stay further proceedings of Criminal Case no.18494 of 2019 pending before the learned Additional Chief Judicial Magistrate, Vadodara. 5. 4.2 The complainant, by filing Criminal Misc. Application no.1 of 2023 in the present matter, has made prayer for vacating the adinterim relief granted by this Court in terms of Paragraph 8(C) through which this Court had ordered to stay further proceedings of Criminal Case no.18494 of 2019 pending before the learned Additional Chief Judicial Magistrate, Vadodara. 5. Learned Additional Public Prosecutor submits that the Police Inspector, City Police Station has filed a report about the present status of the criminal proceedings. He states that any FIR should be quashed in accordance with the guidelines of the Hon'ble Apex Court and the parameters laid down therein. 6. The complainant has sustained imprisonment under Section 138 of the Negotiable Instruments Act. The Court, after appreciation of the evidence, has found the complainant of the impugned FIR guilty. Even in appeal, conviction order was reaffirmed. The FIR is nothing but an abuse of process of law. Prima facie it appears that the complaint has been filed as a counterblast to the cheque which she had given to the applicant. 7. In case of State of Haryana V. Bhajan Lal & Ors., reported in AIR 1992 SC 604 , the Hon'ble 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 Hon'ble 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 Hon'ble 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 noncognizable 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.” 8. Thus, in view of observation and reasons given hereinabove and taking into consideration the facts and circumstances of the case, the impugned FIR and subsequent proceedings arising therefrom are required to be quashed and set aside. 9. In the result, the petition is allowed. The FIR bearing CR No.I-0032/2019 registered with City Police Station, Vadodara and the proceedings initiated in pursuance thereof are quashed and set aside qua the present applicant. Rule is made absolute to the aforesaid extent. Direct service is permitted.