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2024 DIGILAW 101 (GUJ)

HITESHBHAI MAHESHBHAI PATEL v. STATE OF GUJARAT

2024-01-12

HASMUKH D.SUTHAR

body2024
ORDER : 1. Learned advocate Mr. Bhavin C. Patel states that he has instructions to appear on behalf of the original complainant and thereby, seeks permission to file his Vakalatnama, which is granted. Heard learned advocates for the respective parties. 2. RULE. Learned advocates waive service of notice of rule on behalf of the respective respondents. 3. Considering the facts and circumstances of the case and since it is jointly stated at the Bar by learned advocates on both the sides that the dispute between the parties has been resolved amicably, this matter is taken up for final disposal forthwith. 4. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) the applicant has prayed to quash and set aside the complaint being CR No. I-11213026220256 of 2023 registered with the Kotada Sangani Police Station, District Rajkot for the offences punishable under Sections 406, 420, 504 and 506(2) of the IPC and the consequential proceedings arising out therefrom. 5. Going through the complaint, it appears that respondent No. 2 is engaged in the business of manufacturing Gharghanti and his factory named khodiyar Enterprise, he also alleged in his complaint that earlier he was do this business as Khodiyar Enterprise which was converted in name of Amar Industry at village Ardoi, Kotda Sangani. It is alleged present applicant whose company name is Milpower Private Limited and doing his business since last six to seven year. It is further alleged that while complainant have business with name of Khodiyar enterprise he has sent some Gharghanti to the Millpower Private Limited through transportation on 16.07.2022 along with bill of Rs. 7,90,550/-. Thereafter on 24.07.2022 again he sent some goods and spare parts of Gharghanti worth of Rs. 5,49,200/- and at that time brother of the complainant went to Millpower Private Limited Company at Ahmedabad to deposit the goods and for collect the amount of Rs. 13,39,750/- which is the outstanding amount. That the owner of Millpower Company Hiteshbhai promised that he will send the money after five days. It is also alleged in complaint that applicant has not paid amount to the informant and due to nonpayment from applicant side he was in depression and consume poison and then he was taken to the hospital for treatment. After he was under treatment for many days, his brother called to pay the money. It is also alleged in complaint that applicant has not paid amount to the informant and due to nonpayment from applicant side he was in depression and consume poison and then he was taken to the hospital for treatment. After he was under treatment for many days, his brother called to pay the money. It is also alleged that applicant-accused has not paid remaining amount. Hence, the present complaint is lodged. Now, dispute is settled between the parties as the same is private in nature, In view of above, the present application deserves consideration. 6. Learned advocates for the respective parties submitted that during the pendency of proceedings, the parties have settled the dispute amicably and pursuant to such mutual settlement, the original complainant has also filed an Affidavit, which is taken/placed on record. In the Affidavit, the original complainant have categorically stated that the dispute with the applicant has been resolved amicably and that he has no objection, if the present proceedings are quashed and set aside since there is no surviving grievance between them. 7. Learned APP has raised objection to allow the present petition considering the nature of allegations levelled in the complaint. It is stated that due to act of the accused and he has used abusive language the present complaint is filed. In view of above, the present application be dismissed. 8. Considering the fact that prima facie, it appears that there is some dispute of commercial transaction qua purchase the goods. It is admitted that there was some dues of Rs. 13,39,750/- and the same has been paid and the said fact is confirmed at Annexure-B, page 14 of the compilation. It appears that dispute is private in nature and it is needless to say that as per the FIR, the offence has not taken place either for the purpose of cheating or forgery. In view of above, the present application deserves consideration. 9. It appears that dispute is private in nature and it is needless to say that as per the FIR, the offence has not taken place either for the purpose of cheating or forgery. In view of above, the present application deserves consideration. 9. Having heard learned advocates on both the sides and considering the facts and circumstances of the case as also the principle laid down by the Apex Court in the cases of (i) Gian Singh vs. State of Punjab and Another, (2012) 10 SCC 303 , (ii) Madan Mohan Abbot vs. State of Punjab, (2008) 4 SCC 582 , (iii) Nikhil Merchant vs. Central Bureau of Investigation, 2009 (1) GLH 31 , (iv) Manoj Sharma vs. State and Others, 2009 (1) GLH 190 and (v) Narinder Singh and Others vs. State of Punjab and Another, 2014 (2) Crime 67 (SC), in the opinion of this Court, the further continuation of criminal proceedings against the applicants in relation to the impugned FIR would cause unnecessary harassment to the applicants. Further, the continuance of trial pursuant to the mutual settlement arrived at between the parties would be a futile exercise. Hence, to secure the ends of justice, it would be appropriate to quash and set aside the impugned FIR and all consequential proceedings initiated in pursuance thereof under Section 482 of the Cr.P.C. 9.1. Considering the fact that petitioner is also facing charge under Sections 406, 420. In this regard, It would be apposite to refer the decision of the Hon’ble Apex Court in case of Sarabjit Kaur vs. State of Punjab and Another, (2023) 5 SCC 360 . 9.2. Considering the fact that petitioner is also facing charge under Sections 406, 420. In this regard, It would be apposite to refer the decision of the Hon’ble Apex Court in case of Sarabjit Kaur vs. State of Punjab and Another, (2023) 5 SCC 360 . 9.2. So far as offence under Sections 504 and 506 of IPC are concerned, the learned Apex Court in the case of Mohammad Wajid and Another vs. State of U.P. and Others, 2023 Live Law (SC) 624 : 2023 INSC 683 , has held that: “Indian Penal Code, 1860; Section 504 - Mere abuse, discourtesy, rudeness or insolence, may not amount to an intentional insult within the meaning of Section 504, IPC if it does not have the necessary element of being likely to incite the person insulted to commit a breach of the peace of an offence and the other element of the accused intending to provoke the person insulted to commit a breach of the peace or knowing that the person insulted is likely to commit a breach of the peace. Each case of abusive language shall have to be decided in the light of the facts and circumstances of that case and there cannot be a general proposition that no one commits an offence under Section 504, IPC if he merely uses abusive language against the complainant - In judging whether particular abusive language is attracted by Section 504, IPC, the court has to find out what, in the ordinary circumstances, would be the effect of the abusive language used and not what the complainant actually did as a result of his peculiar idiosyncrasy or cool temperament or sense of discipline. It is the ordinary general nature of the abusive language that is the test for considering whether the abusive language is an intentional insult likely to provoke the person insulted to commit a breach of the peace and not the particular conduct or temperament of the complainant. (Para 25-26) Indian Penal Code, 1860; Section 504 - One of the essential elements for constituting an offence under Section 504 of the IPC is that there should have been an act or conduct amounting to intentional insult. Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult. Where that act is the use of the abusive words, it is necessary to know what those words were in order to decide whether the use of those words amounted to intentional insult. In the absence of these words, it is not possible to decide whether the ingredient of intentional insult is present. (Para 28) Indian Penal Code, 1860; Section 506 - Before an offence of criminal intimidation is made out, it must be established that the accused had an intention to cause alarm to the complainant. (Para 27) Interpretation of Statutes- All penal statutes are to be construed strictly - Court must see that the thing charged is an offence within the plain meaning of the words used and must not strain the words.” (Para 19-21) 10. In the opinion of this Court, the further continuation of criminal proceedings against the applicant/s in relation to the impugned FIR would cause unnecessary harassment to the applicant/s. Further, the continuance of trial pursuant to the mutual settlement arrived at between the parties would be a futile exercise. Hence, to secure the ends of justice, it would be appropriate to quash and set aside the impugned FIR and all consequential proceedings initiated in pursuance thereof under Section 482 of the Cr.P.C. 11. In the aforesaid backdrop, complaint is filed. It is necessary to consider whether the power conferred by the High Court under section 482 of the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage as the Hon’ble Supreme Court has decided in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava and Another, AIR 2006 SC 2872 and State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supp. (1) SCC 335, the Apex Court has set out the categories of cases in which the inherent power under Section 482 Cr.P.C. can be exercised and held in Para 102 as under: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter 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 Section 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: (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.” 12. In the result, the application is allowed. (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.” 12. In the result, the application is allowed. The impugned complaint being CR No. I-11213026220256 of 2023 registered with the Kotada Sangani Police Station, District Rajkot and all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the applicant herein. Rule is made absolute. Direct service is permitted. 13. If the applicant is in jail, the jail authority concerned is directed to release the applicant forthwith, if not required in connection with any other case.