Gujarat High Court
Maheshbhai Premchandbhai Shah vs State Of Gujarat on 29 October, 2021
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/4126/2021 ORDER DATED: 29/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 4126 of 2021
=============================================
MAHESHBHAI PREMCHANDBHAI SHAH
Versus
STATE OF GUJARAT
=============================================
Appearance:
MR.D K.PUJ(3836) for the Applicant(s) No. 1
MR PRABHAKAR UPADYAY(1060) for the Respondent(s) No. 2
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
=============================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 29/10/2021
ORAL ORDER
1. Considering the facts of the case and with the consent of learned counsel for the respective parties, present application is taken up for final disposal.
2. Rule. Learned APP waives service of Rule for the respondent State.
3. By way of this application under Section 482 of the Code of Criminal Procedure, the applicant prays for quashing of FIR bearing C.R.No.I-347/2011 dated 09.12.2011, registered with Navrangpura Police Station, Ahmedabad, for the offence under Sections 408, 409, 420, 465, 467, 468, 471, 474 and 120(b) of the Indian Penal Code as well as other consequential proceedings arising out of the alleged FIR.
4. The brief facts can be summarized as under:-
The alleged FIR as referred to above had been registered with Navrangpura Police Station, Ahmedabad on the basis of private complaint by respondent No.2 Mansukh Devjibhai Parmar inter alia alleging fabrication of employees' records Page 1 of 11 Downloaded on : Mon Jan 17 05:06:15 IST 2022 R/CR.MA/4126/2021 ORDER DATED: 29/10/2021 with an intent to misappropriate the amount of ad-hoc compensation under the rehabilitation scheme framed for the workers of Closed textile Mills by _the Central Government. The Ahmedabad Manufacturing and Calico Printing Mill Ltd., and others came into liquidation vide orders of this Court dated 20.04.1998 and 15.07.1998. The possession and custody of assets and record of subject Mills were taken over by the office of the Official Liquidator in presence of the representatives of Textile Labour Association (now referred to as TLA) and Banks/Financial Institutions, in the year 1998. The alleged FIR being filed against 31 persons including the members of closed Association Mills, members of TLA, office bearers of Official Liquidator, responsible officers of Bapunagar Mahila Coop. Bank. It is alleged that after closure of Units of each Mill, the Central Government, Ministry of Textiles, had launched Rehabilitation Funds Scheme, extending benefits of 18 months salary to the workers of closed mills. As per the criteria fixed by the Central Ministry, preparation of workers' reports was undertaken by a Committee of representatives/office bearers of TLA in the presence of Committee of closed mills and accordingly, it was prapared in the year 1999. Thereafter, the TLA filed a Company Petition No.303/2004 dated 05.08.2004 seeking disbursement of workmen's claim for 5777 workers as per the list prepared and submitted by TLA. Vide order dated 25.05.2005 passed by this Court, the then Official Liquidator had appointed M/s. Amaldatt and Associates, CA, as auditor for investigation and verification of the workers claim as submitted by the TLA. The auditor had submitted its report on 19.08.2006 admitting and certifying claims of 5757 workers as against 5777 workers claimed by TLA. A coordinate Bench of this Court vide its order dated Page 2 of 11 Downloaded on : Mon Jan 17 05:06:15 IST 2022 R/CR.MA/4126/2021 ORDER DATED: 29/10/2021 10.10.2006 passed in Company petition No.303/2004 directed the office of the Official Liquidator to make ad-hoc payment of Rs.50,000/- to each worker as per the list of 5757 workers, as certified and verified by the auditor. The payment was made by the office of the Official Liquidator as per the directions of this Court. Those workers, who were entitled for ad-hoc payment, were identified by TLA and upon verification by TLA, the amount was paid through Account Payee Cheque, for which the applicant was authorized by the Official Liquidator for payment and accordingly, payment was made by the office of the Official Liquidator. Thereafter, the complainant - respondnet No.2 Shri Parmar in the capacity of member of Committee of closed mills lodged the FIR on 09.12.2011 for the alleged offences as referred to above alleging that, the persons named in the FIR had misappropriated the amouant of Rs.1,63,86,800/- payable to 284 mill workers by fabricating and forging bogus documents and posing the same to be genuine to claim the amounts. It is further alleged that, pursuant to the liquidation of the Mill, the records of workers were being prepared by the TLA and while preparing the list of workers, the accused created bogus record and submitted claims in respect of workers, who were not entitled.
In the aforesaid background facts, the applicant being Dy. Official Liquidator has been arraigned as accused No.13 by the Investigating Agency and chargesheet came to be filed against him for the alleged offences as referred to above.
Aggrieved by the alleged FIR and subsequent proceedings arising out of the FIR, the applicant has Page 3 of 11 Downloaded on : Mon Jan 17 05:06:15 IST 2022 R/CR.MA/4126/2021 ORDER DATED: 29/10/2021 preferred present application.
5. This Court has heard learned Senior Counsel Mr. Yogesh Lakhani, assisted by learned counsel for the applicant Mr. D.K.Puj, Ms. Shruti Pathak, learned APP for the State and Mr. Prabhakar Upadhyay, learned counsel for and on behalf of respondent No.2- complainant.
6. Mr. Lakhani, learned Senior Counsel for the applicant would submit that, the applicant is falsely implicated as accused No.13 in the chargesheet, as his name was not mentioned in the FIR by the respondent No.2; that as per the list of workers submitted by TLA and upon identification of each worker by TLA, the office of the Official Liquidator made payments by way of account payee cheques. In this context, learned Senior Counsel would urge that, the role of the applicant was only limited to signing the cheques for the workers mentioned in the report prepared by the auditor and therefore, upon bare reading of the FIR and chargesheet papers, prima facie, no offence as alleged being committed by the applicant or made out any case against the applicant. Thus, he would urge that, the chargesheet does not disclose any specific charge or involvement of the applicant except by mentioning his name as accused No.13 in the chargesheet, thus, therefore, implicating the applicant as accused in the alleged offence, who had performed his duty in his official capacity without receiving any monetary benefits, is nothing, but an abuse and misuse of process of law; that even if the allegations made in the chargesheet are taken at their face value and accepted in their entirety, the same do not prima facie constitute any offence or make out the case against the applicant.
7. On the other hand, learned APP Ms. Shruti Pathak, for the State reiterating the facts mentioned in the report submitted Page 4 of 11 Downloaded on : Mon Jan 17 05:06:15 IST 2022 R/CR.MA/4126/2021 ORDER DATED: 29/10/2021 by Investigating Agency, would submit that, the auditor had submitted a detailed report to the office of the Official Liquidator, wherein, it was proposed not to make payment to the workers mentioned in the Category D & E of the audit report. In this context, learned APP would submit that, after receiving the report and knowing fully well that, the workers fall under Category D & E were not entitled for the ad-hoc claim of Rs.50,000/-, the office of the Official Liquidator made the payment, which prima facie shows the involvement of the applicant and other officers, who were part of the alleged conspiracy hatched by the members of the TLA.
8. In view of the aforesaid, learned APP Ms. Shruti Pathak would urge that considering the role attributable to the applicant in the alleged crime, prima facie offence as alleged being made out against the applicant and therefore, at this stage, this Court may not exercise jurisdiction under Section 482 of the Code.
9. Respondent No.2 original complainant Mansukhbhai Parmar has filed affidavit in reply supporting the case of the applicant inter alia stating that, he has not named the present applicant as accused in the FIR and also did not have disclosed his name before the Investigating Officer when his statement was recorded. He further asserted that he has no objection if the impugned FIR and subsequent proceedings are quashed qua the present applicant.
10. Before adverting to the facts of present case and the submissions made by learned counsel for the respective parties, it is necessary to look into the scope and ambit of inherent jurisdiction, which is exercisable by the High Court under Section 482 of the Code. It is a settled law that the High Court should not, except in extraordinary circumstances, Page 5 of 11 Downloaded on : Mon Jan 17 05:06:15 IST 2022 R/CR.MA/4126/2021 ORDER DATED: 29/10/2021 exercise its jurisdiction under Section 482 Cr.P.C so as to quash the criminal proceedings and the same required to be exercised very sparingly and with circumspection and that too, in the rarest of rare case. In State of Haryana Vs. Bhajan Lal [(AIR) 1992 SC 604], two Judge Bench of the Supreme Court considered the statutory provisions and earlier decisions and held that, in the following categories of the cases, extraordinary power under Section 482 can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Supreme Court in the case of Bhajan Lal (supra) held 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 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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the 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 Section 155(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.
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 Page 6 of 11 Downloaded on : Mon Jan 17 05:06:15 IST 2022 R/CR.MA/4126/2021 ORDER DATED: 29/10/2021 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."
11. In the facts of the present case, it is alleged that, the applicant was part of the conspiracy hatched by the members of TLA and based on the list prepared by TLA, the applicant and other officers of the Official Liquidator made payment to the workers, who were not either entitled for the claim or at the relevant time they were not alived and therefore, based on the forged record and in connivance with the other co- accused, the applicant has committed the alleged offence. In view of the alleged charge of falsification of documents and used them to be genuine, it is necessary to refer Sections 467, 468, 471 and 474 of the IPC, which reads thus:-
"Sections 467- Forgery of valuable security, will, etc.--Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 1[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.
Section 468 - Forgery for purpose of cheating.
--Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine Section 471-Using as genuine a forged 1[document or electronic record].--Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to Page 7 of 11 Downloaded on : Mon Jan 17 05:06:15 IST 2022 R/CR.MA/4126/2021 ORDER DATED: 29/10/2021 believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record].
Section - 474 - Having possession of document described in section 466 or 467, knowing it to be forged and intending to use it as genuine.-- 1[Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in section 466 of this Code], be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in section 467, shall be punished with 2[imprisonment for life], or with imprisonment of either description, for a term which may extend to seven years, and shall also be liable to fine."
12. Before examining the issue on merit, reference of the admitted facts are necessary, which are as follows:-
(i) the impugned FIR is being filed against the members of TLA and members of closed mills; the applicant is not named in the FIR and there is no any allegation against him that while issuing the cheques, he derived monetary benefits and opened the bank account with Bapunagar Mahila Coop. Bank and had withdrawn the amount.
(ii) In Company Petition No.387/2005, vide order dated 10.10.2006, a coordinate Bench of this Court after hearing all stakeholders directed the Official Liquidator to disburse the amount on purely ad-hoc basis to the workers of Ahmedabad Unit (Textile Division) 5757 workers, whose claims were found to be admissible. Pursuant to the order, list of workers for claim submitted by TLA and upon verification and identification made by TLA, the amount was disbursed by way of account payee cheque;Page 8 of 11 Downloaded on : Mon Jan 17 05:06:15 IST 2022
R/CR.MA/4126/2021 ORDER DATED: 29/10/2021
(iii) The applicant was posted in the office of the Official Liquidator as Dy. Official Liquidator and in his official capacity, he was authorized to make payment to the workers as directed by this Court;
(iv) Respondent No.2 complainant Mansukhbhai Parmar has categorically stated on oath that, he has not made any allegation against the applicant either in the FIR or before the Investigating Agency when his statement was recorded and he has further expressed his opinion that, he has no objection if the impugned FIR and other consequential proceedings qua the applicant are quashed.
13. This Court has considered the submissions of learned counsel for the parties and perused the record.
14. Having regard to the facts and circumstances of the present case, more particularly the allegations in the FIR and chargesheet, it appears that the accused has been arraigned as accused No.13 in the chargesheet; he had served as Dy. Official Liquidator for the period from 31.07.2006 to 15.05.2008. The role of the applicant was very limited. He had disbursed the amount by issuing cheques as per the authority given by the Official Liquidator. It is not in dispute that list of beneficiaries for payment of Textile Workers Rehabilitation Fund, was prepared by the Textile Labour Association and members of the closed Mills and at the relevant point of time, identification of the beneficiaries was done by the TLA. In pursuance of the order passed by this Court in Company Petition No.387/2005, the Official Liquidator had made ad-hoc disbursement to the workers of the company and accordingly, first disbursement cheques were signed by the applicant and one Shri T. Meena. Thus, this Court finds that prima facie, Page 9 of 11 Downloaded on : Mon Jan 17 05:06:15 IST 2022 R/CR.MA/4126/2021 ORDER DATED: 29/10/2021 there is nothing on record to indicate that the applicant had knowledge about the alleged false record of workers, who were not entitled for the claims.
15. This Court is not agree with the arguments advanced by learned APP for the State mainly on the ground that the applicant has been arraigned as accused No.13 in the chargesheet and except his name, there is no any allegation to the effect that the the applicant in connivance with co- accused, have hatched conspiracy, whereby, false and fabricated list of workers was prepared and knowingly, he had made the payment to the persons, who were not entitled for the claim. The IO has not filed any affidavit in reply to support the report submitted before this Court. Thus, when there is no evidence collected by the IO during the course of investigation for the alleged offences against the applicant, the report submitted before this Court is nothing, but it is an afterthought and is contrary to the chargesheet case papers.
16. In the aforesaid facts, this Court is of the opinion that on bare reading of the relevant provisions of the Act quoted above and applying them to the admitted facts of the present case, the ingredients of the alleged offences under Sections 408, 409, 420, 465, 467, 468, 471, 474 and 120(b) of the Indian Penal Code are not made out against the applicant. Therefore, further continuation of criminal proceedings in relation to the impugned FIR against the applicant, would be unfair or contrary to the interest of justice and it would be tantamount to the abuse of process of law and hence, to secure the ends of justice, the impugned FIR and other consequential proceedings are required to be quashed and set aside in exercise of powers conferred under Section 482 of the Code.
Page 10 of 11 Downloaded on : Mon Jan 17 05:06:15 IST 2022R/CR.MA/4126/2021 ORDER DATED: 29/10/2021
17. Accordingly, present application is allowed. The FIR being C.R.No.I-347/2011 dated 09.12.2011, registered with Navrangpura Police Station, Ahmedabad and other consequential proceedings arising therefrom qua the present applicant are quashed. Rule is made absolute to the aforesaid extent. No order as to costs.
(ILESH J. VORA,J) SUCHIT Page 11 of 11 Downloaded on : Mon Jan 17 05:06:15 IST 2022