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Gujarat High Court · body

2023 DIGILAW 952 (GUJ)

Darshana Jatin Gandhi v. State of Gujarat

2023-08-07

SANDEEP N.BHATT

body2023
JUDGMENT : SANDEEP N. BHATT, J. 1. All these applications are filed under Section 482 of the Code of Criminal Procedure, 1973 (`the Code’ for short) praying to quash the FIR being No. 11210025202440 of 2020 registered with Limbayat Police Station, Surat City for the offences punishable under Sections 406, 420 and 120B of the Indian Penal Code and all the further proceedings pursuant to the same. 2. As the common question of facts and law are involved in all these petitions and the same FIR is challenged in all these applications by the accused, at the request of learned advocates for the parties, they are heard together and disposed of by this common oral judgment. 3. For the sake of convenience, the facts of Criminal Miscellaneous Application No. 10810 of 2020 are considered, which are as under: 3.1. It is averred in the application that the entire dispute, as per the version of the complainant, pertains to Shop No. 3, situated at A.M.T. Textile Market which has been developed on Block No. 101, Final Plot No. 54 in T.P. Scheme No. 33 in Village Dumbhal; that the land was originally owned by the accused nos.1 and 2 and others; that subsequently the accused nos.1 and 2 sold the subject land to a partnership firm viz. M.S. Corporation and payment of Rs.40 lacs is paid in cash to accused no. 8 and 10 in the impugned FIR; that the applicant is neither a party to the transaction nor a signatory to the registered sale deed; that the respondent no. 2 herein had preferred a complaint to the Limbayat police station on 12.1.2017 making the same allegations as in the impugned FIR; that the said complaint was inquired and was disposed of by observing that there was no iota of evidence showing that the respondent no. 2 had made any payment of Rs.40,00,000/- that similarly the respondent no. 1 made another attempt in the year 2019 on the basis of verbatim same allegations; the said complaint was also inquired and disposed of in similar lines; that on the basis of the same allegations, the respondent no. 2 has filed the present FIR and the same is also entertained by the same police station; which is sought to be quashed by way of filing these applications. 4. Heard learned advocates for the parties. 4.1 Learned senior advocate Mr. 2 has filed the present FIR and the same is also entertained by the same police station; which is sought to be quashed by way of filing these applications. 4. Heard learned advocates for the parties. 4.1 Learned senior advocate Mr. Lakhani for the applicants submitted that the impugned FIR is registered in 2020 for an alleged transaction of the year 2020 i.e. after an inordinate and unexplained delay of 8 years; that the impugned FIR is the third attempt after making two unsuccessful attempts of registering the FIR in the year 2017 and 2019; in the previous two complaints, closure report was filed by the Limbayat Police Station stating that there is no evidence to corroborate the allegations of the complainant as well as dispute is of civil in nature; the impugned FIR does not disclose any new fact as well as does not disclose any new evidence other than which was already inquired into in 2017 and 2019 by the very same police station; that the allegation of the original complainant is that he had paid Rs.40,00,000/- (Rupees forth lakhs), however, he had produced only one diary which shows only Rs.4,000/- (Rupees four thousand only); that the original complainant has not filed any civil suit in spite of the allegation of the so-called transaction in the year 2012. He, therefore, prayed to quash the impugned FIR. 4.2 In support of his contentions, he has relied on the decision of this Court rendered in the case of Hasmukhbhai @ Harishbhai S/o Ravjibhai Bhanderi vs. State of Gujarat, decided on 30.6.2023 in Criminal Miscellaneous Application No. 13117 of 2021. 4.3 He has also relied on the judgment of State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 and submitted that this is a case of abuse of process of law and therefore the impugned FIR requires to be quashed by allowing these applications. 5. Per contra, learned advocate Mr. Barot for respondent no. 2 has strongly opposed this application and submitted that on bare reading of the complaint, prima facie case is made out. He has further submitted that the Court has to consider the facts of the present case whether the present applicants in collusion with each other have played with the present complainant and therefore prima facie ingredients of Sections 406, 409 and 420 are attracted. He has further submitted that the Court has to consider the facts of the present case whether the present applicants in collusion with each other have played with the present complainant and therefore prima facie ingredients of Sections 406, 409 and 420 are attracted. 5.1 He further submitted that merely because the complaint is filed in the year 2020, it is not good ground as the parties are trying to resolve the dispute and therefore this Court may not interfere with the process of criminal proceedings and therefore the present application deserves to be dismissed. 6. Learned APP Mr. Joshi has also submitted that essentially it is a dispute between two private parties, however, prima facie, ingredients of Sections 406, 420 and 120B of the IPC are made out. He has submitted that no prayer can be granted as the applicants should face the trial as prima facie case is made out against the applicants. 7. I have considered the rival submissions and I have also perused the material placed on record. It transpires that entire transaction pertains to Shop No. 3, situated at A.M.T. Textile market which has been developed on Block No. 101, Final Plot No. 54 in T.P. Scheme no. 33 in village Dumbhal and the complainant has given some amount for purchase of the same; somehow, it seems that the said transaction could not be materialized; the entire transaction as per the complaint is alleged to have taken place in the 2012 and thereafter the complainant had filed the first complaint in the year 2017, which is also after a delay of five years for the same allegations impugned in this FIR; the same was ordered to be filed; thereafter, again in the year 2019, another complaint was filed for the same allegations, which was again inquired into and filed; thereafter the impugned FIR is filed in the year 2020 for the same set of allegations by the complainant. 8. 8. In this background, if the applications of similar nature were given to the concerned police station i.e. Limbayat Police Station, Surat city in the years 2017 and 2019 by the complainant against the present applicants and in those applications, the statements were also recorded, after that it was decided by the concerned police inspector by yadi that those applications should be filed as there was no iota of evidence to show that the complainant had made a payment of Rs.40,00,000/- then there is no believable reason to file the impugned complaint in the year 2020 i.e. 20.6.2020 under Sections 406, 420 and 120B of the IPC before the same police station pertaining to the same transaction. 9. In view of the above, the following points have to be taken into consideration: (i) the complaint filed in the year 2020 pertains to dispute that occurred in the year 2012 and no explanation is given in the complaint for filing the complaint after a period of eight years and the delay that occurred in filing the complaint at such belated stage without any explanation for delay and also vital facts regarding earlier complaint of year 2017 and 2019. (ii) the complainant has not filed any civil suit though the dispute is primarily of civil nature. (iii) even the conduct of the concerned police officer of the police station who has taken the complaint or who has directed to register the complaint is also doubtful in view of the fact that though there were earlier applications which were inquired, not proceeded further after recording the statements of the concerned persons regarding the same subject matter and filed as closed and after delay of eight years, the police has again registered the impugned complaint which is given by the complainant and that too without recording the material aspect that earlier applications were given in the year 2017 and 2019, were inquired and thereafter not proceeded further. (iv) that, even considering the allegations in the complaint, essentially the dispute pertains to a civil dispute. (v) there is no documentary evidence to show that the complainant has ever paid the amount of Rs.40,00,000/- to any of the accused. (iv) that, even considering the allegations in the complaint, essentially the dispute pertains to a civil dispute. (v) there is no documentary evidence to show that the complainant has ever paid the amount of Rs.40,00,000/- to any of the accused. (vi) that there is no documentary evidence regarding the so-called partnership firm or private limited company by the name ‘Blue Feathers Limited’ as alleged by the original complainant in the impugned complaint as well as the previous complaints. (vii) Even prima-facie, no ingredients of alleged offence is made out from the FIR. 10. It is also fruitful to refer the facts of present case in view of some judgments of the Hon’ble Apex Court which are as under: “(i) In the case of Sarabjit Kaur vs. State of Punjab and Another, 2023 Live Law (SC) 157, it is held by the Hon’ble Apex Court that “a breach of trust does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes.” (ii) In the case of Sardar Ali Khan vs. State of Uttar Pradesh through Principal Secretary Home Department, 2020 (0) AIJEL SC 65675, wherein there was civil dispute and criminal proceedings were initiated, it is held by the Hon’ble Apex Court that “there is no allegation of impersonation and forgery of signatures in suit filed by 2nd respondent and having regard to serious factual disputes which are of civil nature, for which civil suits are pending, allowing respondent no. 2 to pursue his complaint in criminal proceedings is nothing but abuse of process of law.” (iii) In the case of Banshilal Motilal Chandak vs. State of Gujarat, 2019 (0) AIJEL SC 240805, it is held by this Court that “the complainant has filed impugned FIR only with view to harass applicants and compel them to part with money though dues of 2009 to 2010 are pending, no reason has been given by first informant for delay in filing complaint and on plain and simple reading of FIR, it is revealed that civil dispute has been given colour of criminal proceedings.” (iv) Prof R.K. Vijayasarathy and Another vs. Sudha Seetharam and Another, 2019 (16) SCC 739 , it is held by the Hon’ble Supreme Court that “son of the appellants has instituted a civil suit for recovery of money against first respondent. Suit is pending. First respondent has filed the complaint against appellants six years after date of alleged transaction and nearly three years from filing of suit. Averments in complaint, read on its face, do not disclose ingredients necessary to constitute offences under Penal Code. Attempt has been made by first respondent to cloak a civil dispute with a criminal nature despite absence of ingredients necessary to constitute a criminal offence. Complaint filed by first respondent against appellants constitutes abuse of process of court and is liable to be quashed.” The facts of the case on hand are identical to the facts of the said case.” 11. This Court, in Criminal Miscellaneous Application Nos.13117 of 2021 has considered similar set of facts and allowed the said application vide order dated 30.6.2023, considering the judgments in cases of (i) Sarabjit Kaur (supra) (ii) Sardar Ali Khan (supra), (iii) Banshilal Motilal Chandak (supra) and (iv) Prof R.K.Vijayasarathy and Another (supra). 12. In a recent decision in the case of Chanchalpati Das vs. State of West Bengal and Others, AIR 2023 SC 2710 , the Hon’ble Apex Court has held in paragraphs 15 to 21 as under: “15. In State of A.P. vs. Golconda Linga Swamy and Another, MANU/SC/0552/2004 : 2004 (6) SCC 522 this Court had observed that the Court would be justified to quash the proceedings if it finds that initiation or continuance of such proceedings would amount to abuse of the process of Court. 16. In State of A.P. vs. Golconda Linga Swamy and Another, MANU/SC/0552/2004 : 2004 (6) SCC 522 this Court had observed that the Court would be justified to quash the proceedings if it finds that initiation or continuance of such proceedings would amount to abuse of the process of Court. 16. As regards inordinate delay in filing the complaint it has been recently observed by this Court in Hasmukhlal D. Vora and Another vs. State of Tamil Nadu, MANU/SC/1639/2022 that though inordinate delay in itself may not be a ground for quashing of a criminal complaint, however unexplained inordinate delay must be taken into consideration as a very crucial factor and ground for quashing a criminal complaint. 17. In the light of afore-stated legal position, if the facts of the case are appreciated, there remains no shadow of doubt that the complaint filed by the Respondent-complainant after an inordinate unexplained delay of eight years was nothing but sheer misuse and abuse of the process of law to settle the personal scores with the Appellants, and that continuation of such malicious prosecution would also be further abuse and misuse of process of law, more particularly when neither the allegations made in the complaint nor in the chargesheet, disclose any prima facie case against the Appellants. The allegations made against the Appellants are so absurd and improbable that no prudent person can ever reach to a conclusion that there is a sufficient ground for proceeding against the Appellants- Accused. 18. Before parting, a few observations made by this Court with regard to the misuse and abuse of the process of law by filing false and frivolous proceedings in the Courts need to be reproduced. In the Court. In Dalip Singh vs. State of Uttar Pradesh and Others, MANU/SC/1886/2009 : (2010) 2 SCC 114 it was observed that: 1. For many centuries Indian society cherished two basic values of life i.e. “satya” (truth) and “ahimsa” (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. 19. In Subrata Roy Sahara vs. Union of India and Others, MANU/SC/0406/2014 : (2014) 8 SCC 470 it was observed as under: 191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to deter litigants from their compulsive obsession towards senseless and ill-considered claims. 20. We would like to add that just as bad coins drive out good coins from circulation, bad cases drive out good cases from being heard on time. Because of the proliferation of frivolous cases in the courts, the real and genuine cases have to take a backseat and are not being heard for years together. The party who initiates and continues a frivolous, irresponsible and senseless litigation or who abuses the process of the court must be saddled with exemplary cost, so that others may deter to follow such course. The matter should be viewed more seriously when people who claim themselves and project themselves to be the global spiritual leaders, engage themselves into such kind of frivolous litigations and use the court proceedings as a platform to settle their personal scores or to nurture their personal ego. 21. Having regard to the facts and circumstances of the present case and for the reasons stated hereinabove, we deem it appropriate to quash the criminal proceedings pending against the Appellants in the Court of Chief Judicial Magistrate, Alipore, arising out of the FIR No. 33 of 2009 registered at Ballygunge Police Station, and quash the same.” 13. Further, it will also be fruitful to mention the judgment of Hon’ble Supreme Court in the case of State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 , wherein the Hon’ble Supreme Court has observed thus: “In the backdrop of the interpretation of the various relevant provisions of the Code under Ch. Further, it will also be fruitful to mention the judgment of Hon’ble Supreme Court in the case of State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 , wherein the Hon’ble Supreme Court has observed thus: “In the backdrop of the interpretation of the various relevant provisions of the Code under Ch. XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art. 226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) 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. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec. 156(1) of the Code except under an order of a Magistrate within the purview of sec. 155(2) of the Code. (3) 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. (4) 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 sec.156(2) of the Code. (5) 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. (5) 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. (6) 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. (7) 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.” 14. It is also relevant to refer to the judgment of the Hon’ble Apex Court in the case of Inder Mohan Goswami and Another vs. State of Uttaranchal, (2007) 12 SCC 1 , more particularly Para 23 & 24 thereof, which read as under: “23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code. (ii) to prevent abuse of the process of court. (iii) to otherwise secure the ends of justice. 24. Inherent powers under Sec. 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases.” 15. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases.” 15. In view of above settled position of law and after considering the facts as alleged in the FIR and circumstances of the present case, it transpires that it is nothing but abuse of process of law and continuation of further proceedings pursuant to the said FIR will cause greater hardships to the applicants and no fruitful purpose would be served if such further proceedings are allowed to be continued. The Court must ensure that criminal prosecution is not used as instrument of harassment or for seeking private vendetta or with ulterior motive to pressurise accused or to settle the score. 16. In this view of the matter, this is a fit case to exercise the inherent powers under Section 482 of the Code. Accordingly, all these applications are allowed. The impugned FIR being No. 11210025202440 of 2020 registered with Limbayat Police Station, Surat City, as well as subsequent proceedings, if any, arising out of the same FIR are hereby quashed and set aside qua the present applicants. Rule is made absolute. Direct service is permitted.