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2025 DIGILAW 558 (GUJ)

Sunil Bhagchand Jain v. State Of Gujarat

2025-06-25

J.C.DOSHI

body2025
ORDER : J. C. DOSHI, J. 1. By way of this petition under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for the following reliefs: (a) to quash and set aside the impugned FIR bearing C.R No. I/20/2019 dated 17/03/2019 registered with the Paldu Police Station, Ahmedabad for the offences punishable under Sections 406 , 420. 120(b) and 114; (b) Pending the hearing and final disposal of this petition, be pleased to stay the further proceedings FIR bearing C.R No. I/20/2019 dated 17.3.2019 registered with the Paldi Police Station, Ahmedabad City for the offences punishable under Sections 406 , 420, 120(b) and 114 along with notice dated 04.04.2019 issued by the Sub Inspector, Paldi Police Station; (c) To grant any other appropriate and just relief/s; 2. The facts of the case are taken from the record as under : 2.1 The complainant alleges that on 25.9.2017 the petitioner had approached the complainant stating that he is a very well established dealer of food grains and Agro products. It is alleged that the petitioner would provide the complainant with food grains at a price lower than the market rate, more specifically 200 rupees lower per quintal than the market price. 2.2 Upon agreement between the complainant and the petitioner herein, the petitioner sough a full payment in advance from the complainant for delivery of food grains. However, it is further alleged that the complainant denied making full payment and thereafter was ready and willing to make 50% of the total payment I.e to the tune of Rs. 25,00,000/-. It is further stated that thereafter the present complainant made a payment of Rs. 25,00,000/- to the petitioner by way of three RTGS cheques dated 26.9.2017 to the tune of Rs. 7,00,000/- cheque dated 27.9.2017 to the tune of Rs. 9,00,000/- and another cheque dated 28.9.2017 to the tune of Rs. 9,00,000/-. 2.3 Thereafter the petitioner did not supply the requisite food grains to the petitioner and sought time to deliver the said goods. It is further alleged that despite repeated requests from the complainant the present petitioner on one or another count made excuses to delayy the supply of food products to the complainant. 3. Learned advocate Mr. 9,00,000/-. 2.3 Thereafter the petitioner did not supply the requisite food grains to the petitioner and sought time to deliver the said goods. It is further alleged that despite repeated requests from the complainant the present petitioner on one or another count made excuses to delayy the supply of food products to the complainant. 3. Learned advocate Mr. Kirtan H Mistry appearing for the petitioner would submit that the entire FIR filed is counter blast to the FIR filed against the complainant by him before Anantpura Police station, in Kota district vide complaint No. 175 of 2017. It is further submitted that for no reason without explaining delay the question of FIR was filed after delay of two years. Learned advocate Mr. Mistry takes this Court to the record of the case and would submit that in the FIR which was filed by him before the Anantpura Police Station since the private respondent is apprehending arrest, he had preferred anticipatory bail before the Rajasthan High Court vide S.B Criminal Misc. Application No. 15814 of 2017. The Rajasthan High Court while declining to grant anticipatory bail to the petitioner and noted that the amount of Rs. 25 lakhs is a part of the questioned FIR and added that said amount has been paid by the private respondent company to the petitioner under promise to supply wheat, grain and other pulses, to pay under distress for some other transaction. Therefore he submitted that the foundation of the FIR in question is based on falsehood and may not allow to proceed further in the matter rather the FIR in question is absurd further proceedings would be abuse of process of law. Mainly on the aforesaid submission learned advocate Mr. Mistry requested to allow the petition and to quash the FIR. 4. Per contra, learned advocate Mr. Daxit Patel for learned advocate Mr. R J Goswami representing the accused would mainly submit that the averments made in the petition seeking anticipatory regular bail in the offence registered as FIR No.175 of 2017 registered with Anantpura Police station, Kota is limited to get bail. Those averments have no bearing upon the facts of the present case. Daxit Patel for learned advocate Mr. R J Goswami representing the accused would mainly submit that the averments made in the petition seeking anticipatory regular bail in the offence registered as FIR No.175 of 2017 registered with Anantpura Police station, Kota is limited to get bail. Those averments have no bearing upon the facts of the present case. He would submit that the petitioner approached the Hon’ble Court and introduced himself as big trader in Rajasthan and assured that he will supply wheat to the complainant has also handed over the samples of wheat and fixed the price pursuant to which the complainant private respondent made an advance payment of Rs. 25 lakhs through cheque and RTGS. However, the petitioner did not supply the goods/wheat which he has promised, therefore committed an offence under Section 406 of the INDIAN PENAL CODE . The promise is breached after taking the advance amount therefore the essential element of offence under Section 406 and 420 of the IPC are made out. 5. Upon above submissions learned advocate Mr. Patel submitted to dismiss the petition. 6. Learned APP in view of the given facts and circumstances while placing on record the report of the I.O would submit to pass the order. (a) On 25.9.2017, the accused Nos. 1 and 2 both came to the office and introduced themselves as reputed traders in Kota, Rajasthan and doing business in the name of Vardhman Industries. b) The accused had lured by stating that they are doing large scale business and will sell the wheat by less price to them. c) They accused also further stated that the market price of the wheat is Rs. 1800/- in which Rs. 200 was reduced with an amount of Rs. 1600/-. The accused wanted the total payment in advance so the complainant had decided to pay 50% in advance and 50 % from the goods. d) It is further stated that the complainant had brought 3125 quintals of wheat at the price of Rs. 1600/-per quintal. The total value of the goods ordered was Rs. 50,00,000/-. The accused had asked for advance payment. It was further stated that the goods should be sent from the mill and the payment of GST should be done through the bank. 1600/-per quintal. The total value of the goods ordered was Rs. 50,00,000/-. The accused had asked for advance payment. It was further stated that the goods should be sent from the mill and the payment of GST should be done through the bank. e) The accused had further stated that the he had given the name, address and the name of the bank where the account of the trust is held and went to Darshan hotel to get the money. f) It was further stated that the accused had demanded an amount of Rs. 25,00,000/-. g) It is further stated that the promised goods by the accused were not given and the complainant had gone to the office to collect the goods where the accused had stated the goods had been sold and accused always made excuses. h) Again the complainant had tried to contact the accused but the accused had changed their mobile number. But when complainant went to the place of the accused they treated the complainant very badly and said that they will not get the goods and also the money. In this way they cheated complainant on the pretext of giving the loan at a reasonable price and also took an advance of Rs. 25,00,000/-. Hence a criminal complaint was filed by the complainant against the accused under Section 401 , 420, 120(B). 114 of the INDIAN PENAL CODE . Hence, this petition. 7. Having heard learned advocates of both the sides at the outset and going through the gist of the FIR, according to the complainant the petitioner accused introduced himself as a big trader in Rajasthan and to supply wheat after fixing the price. The accused had obtained Rs. 25 lakhs as an advance from the complainant by way of cheque No. 688981 of Rs. 7 lakhs and other cheque of Rs. 9 lakhs by way of cheque no. 688982 and Rs. 9 lakhs was transferred by way of cheque no. 688983 in total Rs. 25 lakhs was paid to the petitioner as an advance payment for mostly purchase of wheat. 8. The petitioner had filed the FIR No 175 of 2017 with Anantpura Police Station, Kota, Rajasthan for the offence punishable under Section 420 , against the three accused alleging that they have siphoned the food grains and pulses from him under the pretext of purchase. 8. The petitioner had filed the FIR No 175 of 2017 with Anantpura Police Station, Kota, Rajasthan for the offence punishable under Section 420 , against the three accused alleging that they have siphoned the food grains and pulses from him under the pretext of purchase. It is also alleged in the FIR that the accused have not paid the sale price of foodgrains and pulses and such they have committed cheating. During the investigation of the said FIR it comes on record that the complainant herein had purchased the said foodgrains and pulses. The Investigating Officer, therefore, found involvement of the complainant in the commission of the said offence. In the background of facts the complainant would apprehended arrest in the FIR No. 175 of 2017 preferred Criminal Misc. Application No. 15814 of 2017 for bail before the Rajasthan High Court. The bail application is rejected, however, the finding of the Rajasthan High Court is pertinent, it reads as under : “ It is admitted fact that present petitioner has returned an amount of Rs. Seven lakh on 26.9.2017 and subsequently an amount of Rs. Nine lakhs on 27.9.2017, likewise another amount of Rs. Nine lakhs has been returned and deposited through RTGS/NEFT from HDFC Bank in the account of M/s.Hariom Marketing, complainant firm, as such a total amount of Rs. Twenty lakhs has been returned and deposited in the account of the complainant by the accused persons. A number of criminal cases, pertaining to similar kind of bungling are reportedly lodged against the present petitioner along with other co-accused persons and in one of them the present petitioner is stated to be behind the bars. It has also emerged that present petitioner has got close blood relationship with co-accused Babulal and the factual report submitted by the prosecution explicitly reflects that the present petitioner has remained a part of deceptive activity in committing offence and factual report categorically conveys complicity of the present petitioner. Prima facie the petitioner has been found involved in the offences punishable under Sections 420 , 406 and 120-B of the INDIAN PENAL CODE . 9. After being arrested the complainant preferred regular bail application before the Rajasthan High Court vide Criminal Misc. Application No. 3403 of 2018. The averment made in para 10 of the bail application is relevant to the present matter. Hence it is reproduced as under : “10. 9. After being arrested the complainant preferred regular bail application before the Rajasthan High Court vide Criminal Misc. Application No. 3403 of 2018. The averment made in para 10 of the bail application is relevant to the present matter. Hence it is reproduced as under : “10. That however, considering that the petitioner is a well settled trader in Gujarat, the investigating agency and the complainant wrongfully created pressure on him to cough out money and by committing extortion forced him to make RTGS payment and thus coerced him into paying Rs. 25 lakhs to the complainant’s firm. Copy of RTGS amounts paid by the petitioner amounting to Rs. 25 lakhs are annexued makred as Annexue 11.” 10. Learned advocate appearing for the complainant could not dispute the aforesaid finding and averments. Both of above finding and averments manifestly makes it clear that the complainant has changed his version about Rs. 25 lakhs which is foundational facts of the questioned FIR. The complainant has changed version conveniently. It emerges from the record that the complainant has paid Rs. 25 lakhs to the petitioner during the proceeding of seeking bail in FIR No. 175 of 2017 but in order to seek FIR against the petitioner, the complainant conveniently changed the statement and put that Rs. 25 lakhs has been paid towards advance for producing foodgrains and pulses and the petitioner have not supplied the foodgrains and pulses, the offence of criminal breach of trust an cheating has been committed by the accused. 11. It is apt to note that the complainant suppressed earlier transaction which took place between the parties and upon such suppressed material of facts by forged statement registered question FIR against the petitioner, perhaps to take vengeance or to settle the score. It established that the complainant has filed questioned FIR to enrobe the petitioner accused to bring him to the settlement position. The complainant was required to aver the facts of the earlier transaction in the questioned FIR and to explain as to why Rs. 25 lakhs was paid to the petitioner fixed different fictional story in teeth of the finding of the Rajasthaan High Court instead. 12. In view of the above, since the very foundation of lodging FIR itself is ingenious having no support of sufficient material facts the petitioner obtained money of Rs. 25 lakhs was paid to the petitioner fixed different fictional story in teeth of the finding of the Rajasthaan High Court instead. 12. In view of the above, since the very foundation of lodging FIR itself is ingenious having no support of sufficient material facts the petitioner obtained money of Rs. 25 lakhs under the proceeding of the FIR No. 175 of 2017 cannot be send to face the turbulence of trial. Thus, FIR is found to be complete abuse of process of law. 13. At this juncture I may refer to the judgement of the Hon’ble Ape Court in the case of State of Haryana Vs. B.Bhajanlal & ors., AIR 1992 SC 604 , the Hon’ble Apex Court summed up the proposition of law, which reads as under:- “(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 ins the F.I.R. and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the code. (3) Where, the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same donot disclose the commission of any offence and make out the case against the accused. (4) Where, the allegations in the F.I.R. 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 S.155(2) of the Code. (5) Whether, the allegations made in the F.I.R. 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 bare engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) toi the institution 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. (6) Where, there is an express legal bare engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) toi the institution 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 malafide 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. The findings of the Hon’ble Apex Court in para 1,3 and 7 are attracted in the present case. In view of above, present petition deserves consideration. 15. In the result, the present petition is allowed and impugned FIR being C.R. No. -I/20/2019 dated 17.3.2019 registered with Paldi Police Station, Ahmedabad City for the offences punishabe under Sections 406 , 420, 120(b) and 114 of the IPC as well as other consequential proceedings arising out of the aforesaid FIR qua the petitioners herein are hereby quashed and set aside. Direct service is permitted.