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2024 DIGILAW 2222 (GUJ)

Dilip Manchhalal Parihar v. State Of Gujarat

2024-12-18

SANDEEP N.BHATT

body2024
JUDGMENT : 1. The present petition is filed for the following prayers: “a) Be pleased your Lordships to quashed and set aside the complaint (F.I.R) bearing I.CR.No. 11191011240307/2024 registered with DCB Police Station At AHMEDABAD, filed by respondent no.2 qua present petitioner and further be pleased to quashed and set aside the Criminal proceedings qua present petitioner if any arising out of the said complaint. (b) That pending hearing and final disposal of this present petition, this Honble Court may be pleased to stay further proceedings of FIR bearing No. 11191011240307/2024 registered with DCB Police Station, AHMEDABAD against the petitioner. (c) Be pleased your Lordships to pass any other and further order considering the facts and circumstances of the case in the interest of justice.” 2. Heard learned Senior Counsel Mr. Aditya Bharat Manubarwala with learned advocate Mr. O.I.Pathan for the petitioner and learned APP, Mr. Manan Maheta for the respondent – State. 3. Learned Senior Counsel has submitted that essentially the dispute is between two brothers and initially, the application was given before some other Police Station, though, both the brothers are residing at Mumbai however with a view to harass the present petitioner, the FIR is filed before the D.C.B. Police Station, Ahmedabad City. He has further submitted that looking to the tenor of the FIR, essentially the allegation pertains to non-payment of the amount and for that Civil Proceedings are required to be filed which can be more efficacious remedy and by way of the present FIR, the Civil Proceedings are converted into Criminal Proceedings. Therefore, he submits that, in view of the settled position of law, when the Court is of the opinion that on a bare reading of the FIR, no offences are made out or Court is of the opinion that the continuation of the proceedings pursuant to the FIR would amount to abuse of process of law, then the Court should interfere in the proceedings initiated pursuant to the FIR and may quash the proceedings, in the interest of justice. 4. Learned APP, Mr. Maheta has strongly opposed the submissions made on behalf of the petitioner and has submitted that every matter cannot be considered as civil dispute, merely because, there is some mention about the recovery of the amount and every complaint is required to be examined independently on the facts and circumstances of each case. 4. Learned APP, Mr. Maheta has strongly opposed the submissions made on behalf of the petitioner and has submitted that every matter cannot be considered as civil dispute, merely because, there is some mention about the recovery of the amount and every complaint is required to be examined independently on the facts and circumstances of each case. He has submitted that the Hon’ble Apex Court has also held in various decisions that the mere filing of civil proceedings pursuant to the dispute between the parties does not mean that such dispute is not having a criminal texture. He has further submitted that earlier complaint is filed by the complainant which was not registered as at the relevant point of time, no evidence were produced and from the report filed before the concerned Court at the time of consideration of the application for the anticipatory bail, it was specifically stated that at the relevant point of time, evidence was not produced by the complainant. He has further submitted that otherwise the transaction has taken place at Ahmedabad and the firm is also situated at Ahmedabad and therefore, there is no substance in the contentions raised by the present petitioner that the petitioner is residing at Mumbai and the complaint is filed at Ahmedabad with a view to harass the present petitioner. 5. I have considered the rival submissions made at the bar, I have also gone through the present FIR which is filed under the provisions of Sections 406, 409 and 420 of the Indian Penal Code, 1860, the same reads as under: “406. Punishment for criminal breach of trust.— Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 409. Criminal breach of trust by public servant, or by banker, merchant or agent.— Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, mer-chant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 420. 420. Cheating and dishonestly inducing delivery of property.— Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 6. It also transpires that earlier complaint is filed, which is not registered as the petitioner has failed to produce necessary documentary evidence in support of his say. It also transpires that the firm is situated at Ahmedabad and transaction has also taken place at Ahmedabad. Therefore, the contentions raised on behalf of the petitioner regarding the fact that both the petitioner as well as the complainant are residing at Mumbai and the complaint is filed at Ahmedabad with a view to harass the petitioner and that amounts to abuse of process of law and the same is not required to be accepted. The other contention which is raised is that the dispute is essentially in the nature of civil dispute as the dispute between two brothers is about the business transaction and non-payment of the said amount as mentioned in the FIR and therefore, the best course is to avail the civil remedy. In the series of judgments, the Hon’ble Apex Court has taken view that when there is a transaction of purely civil dispute, the complaint is required to be quashed. However, there are also several judgments where the Hon’ble Apex Court as well as this Hon’ble Court have taken view that when the complaint is having the texture of civil as well as criminal dispute, then merely on the basis that the civil suit can be filed, no ground is there to interfere with such criminal proceedings. 7. It is apt to refer to the judgment in the case of Lalit Chaturvedi Vs. State of Uttar Pradesh reported in 2024 (0) AIJEL-SC 73144, wherein, relevant paragraphs are reproduced as under: “Having gone through the complaint, which was registered as an FIR and the assertions made therein, it is quite clear that respondent no. 2/complainant – Sanjay Garg’s grievance is regarding failure of the appellants to pay the outstanding amount, in spite of the respondent no. 2/complainant – Sanjay Garg’s grievance is regarding failure of the appellants to pay the outstanding amount, in spite of the respondent no. 2/complainant – Sanjay Garg’s repeated demands. The respondent no. 2/complainant – Sanjay Garg states that the supplies were made between the period 01.12.2015 and 06.08.2017. The appellants had made the payments from time to time of Rs. 3,76,40,553/- leaving a balance of Rs. 1,92,91,358/-. We will assume that the assertions made in the complaint are correct, but even then, a criminal offence under Section 420 read with Section 415 of the IPC is not established in the absence of deception by making false and misleading representation, dishonest concealment or any other act or omission, or inducement of the complainant to deliver any property at the time of the contract(s) being entered. The ingredients to allege the offence are neither stated nor can be inferred from the averments. A prayer is made to the police for recovery of money from the appellants. The police is to investigate the allegations which discloses a criminal act. Police does not have the power and authority to recover money or act as a civil court for recovery of money. The chargesheet also refers to Section 406 of the IPC, but without pointing out how the ingredients of said section are satisfied. No details and particulars are mentioned. There are decisions which hold that the same act or transaction cannot result in an offence of cheating and criminal breach of trust simultaneously.10 For the offence of cheating, dishonest intention must exist at the inception of the transaction, whereas, in case of criminal breach of trust there must exist a relationship between the parties whereby one party entrusts another with the property as per law, albeit dishonest intention comes later. In this case entrustment is missing, in fact it is not even alleged. It is a case of sale of goods. The chargesheet does refer to Section 506 of the IPC relying upon the averments in the complaint. However, no details and particulars are given, when and on which date and place the threats were given. Without the said details and particulars, it is apparent to us, that these allegations of threats etc. have been made only with an intent to activate police machinery for recovery of money. It is for the respondent no. 2/complainant – Sanjay Garg to file a civil suit. Without the said details and particulars, it is apparent to us, that these allegations of threats etc. have been made only with an intent to activate police machinery for recovery of money. It is for the respondent no. 2/complainant – Sanjay Garg to file a civil suit. Initiation of the criminal process for oblique purposes, is bad in law and amounts to abuse of process of law. In view of the aforesaid discussion, the impugned judgment is set aside and the present appeal is allowed quashing the FIR and resultant proceedings, including the chargesheet. We clarify that the present appeal only deals with the question of criminal offence. We have not commented or made any observations on the civil rights of respondent no. 2/complainant – Sanjay Garg.” 8. In view of the above, it is clearly held that the proceedings pursuant to the FIR can go on if the dispute also involves some criminality or having some criminal texture. From the bare reading of the FIR, it cannot be said that the dispute is essentially of the civil nature as there is a firm is going on in the cloth market whereby upto the year 2023, the cotton clothes were purchased and some payment is also made and thereafter, substantial amount of Rs.1,33,97,316/- was not paid and thereafter, though it was repeatedly asked, initially, the petitioner has made promises and by giving certain replies but by not acting on such assurances for payment of the amount and when the complainant has again asked about the payment of the amount, the petitioner has not paid the said amount and therefore, committed criminal breach of trust as well as cheating as alleged in the FIR, which is required to be investigated further. It cannot be said that even from the allegations which are borne out from the FIR only the civil proceedings are required to be filed and no criminal complaint can be filed looking to the allegations, more particularly, about the criminal breach of trust and cheating, whereby, prima facie offence of cheating is made out. 9. It is needless to say that the Hon’ble Apex Court has given specific directions in the case of Neeharika Infrastructure Pvt.Ltd. Vs State of Maharashtra reported in 2021 SCC Online SC 315, wherein, it is held in paragraph 80 as under: “80. 9. It is needless to say that the Hon’ble Apex Court has given specific directions in the case of Neeharika Infrastructure Pvt.Ltd. Vs State of Maharashtra reported in 2021 SCC Online SC 315, wherein, it is held in paragraph 80 as under: “80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: (i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; (ii) Courts would not thwart any investigation into the cognizable offences; (iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; (iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty). (v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; (vi) Criminal proceedings ought not to be scuttled at the initial stage; (vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; (viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere; (ix) The functions of the judiciary and the police are complementary, not overlapping; (x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; (xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; (xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; (xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; (xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; (xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; (xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. (xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.” 10. In view of the foregoing reasons, no interference of this Court is called for in the present matter, at this stage. Therefore, the present petition lacks merit and the same is required to be dismissed. 11. Accordingly, the present petition is dismissed.