Gujarat High Court
Beenaben Dhirenbhai Desai vs State Of Gujarat on 12 October, 2021
Equivalent citations: AIRONLINE 2021 GUJ 2046
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 7423 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BEENABEN DHIRENBHAI DESAI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR YOGESH LAKHANI SENIOR ADVOCATE WITH MR. NANDISH
H THACKAR(7008) for the Applicant(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 12/10/2021
ORAL JUDGMENT
1. Rule. Learned APP waives service of notice of rule on behalf of respondent no.2. Though served, no one has appeared on behalf of respondent no.2.
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2. The petitioner, under Section 482 Cr.P.C. challenging the FIR registered as C.R. No.I-96/2008 at Kaprada Police Station dated 15.12.2008, Sub-district Kaprada, District - Valsad for the offences punishable under Sections 409, 420, 467, 468, 471 and 114 of IPC; and further prayer is made to quash the Criminal Case No.121/2015 pending before the learned Magistrate, Kaprada.
3. The petitioner states that she is doing business in the agriculture produces in the name and style of 'JMD Agri Products', a proprietorship firm run from the address at Flat No.102, Paras Co-op. Housing Society Limited, Chharwada Road, Vapi. The said address as a place of business is mentioned in the government records. She is having a godown on rental basis at Damani Zapa, Paria Road, Taluka Pardi, Dist.: Valsad. The petitioner states that the said address is a place of business and there is no forgery in the transaction, as alleged. She further states that she has obtained CST No.24750401246 and State VAT No.24250401246 and is paying sales tax, vat tax and doing business regularly, thus there is no illegality or irregularity in the alleged transaction.
3.1 The petitioner states that no offence could be attributable under Section 409 IPC against her since she is not a public servant and there is no entrustment of Page 2 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022 R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 property and she has not committed any criminal breach of trust.
4. Heard Mr. Yogesh Lakhani learned senior advocate along with Mr. Nandish H.Thackar learned advocate for the petitioner and Mr. Pranav Trivedi, learned APP for the respondent State.
5. Mr. Lakhani, learned senior advocate submits that it is not the case of the prosecution that petitioner has obtained money from the Gram Panchayats and has not supplied the fertilizer. He submits that it is also not the case of the prosecution that petitioner has deceived the Gram Panchayats in any manner. The whole of the transaction was purely of supply and sale of fertilizer by the petitioner to both the Gram Panchayats and the supply to both the Gram Pancyayats was as per the orders and thereafter the petitioner has received the payment by way of Demand Draft; there was no cheating in the transaction.
5.1 Mr. Lakhani relying on the letter dated 01.06.2007 of the authority of distributorship, submits that the bald allegation is made against the petitioner for having sold the fertilizer at a higher price. There is no such documentary evidence to substantiate the allegation. Mr. Lakhani states that the petitioner has purchased fertilizer 'Samved Humiphos (Organic Page 3 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022 R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 Manure)' from Varun Phosphates, Bio-organic Pvt. Ltd. and Vasumitra Life Energies Pvt. Ltd. at the rate of Rs.375/- for 50 kgs. i.e. one packing which would make one packing worth Rs.7,440/-, and the petitioner has sold the same to the Gram Panchayats at the rate of Rs.8,000/-. The cost of transportation was also to be included in the price and the petitioner has supplied the fertilizer to different customers at the very rate during this period.
5.2 Mr. Lakhani has referred to the copy of the stock register maintained by JMD Agri Products from 01.09.2007 to 31.03.2008 to substantiate the fact that petitioner has sold fertilizers to the Gram Panchayats at Ghanveri, Pendhardevi, Malungi, Bhurwad, Asalkanti, Dharanmal, Ghadvi, Umarpada, Bhatheri and Kumset Villages.
6. Mr. Pranav Trivedi, learned APP for the respondent State relying on the report of the In-charge Police sub-inspector, Kaprada Police Station, Dist. Valsad dated 09.10.2021 submitted that, the present petitioner in abetment with the co-accused had supplied fertilizer of low quality to Malungi and Pendhardevi Juth Gram Panchayats in Kaprada Taluka. The Humiphos (Organic Manure) fertilizer was purchased from Vasumitra Life Energies Pvt. Ltd., Varun Phosphates and Bio-organic Pvt. Ltd. situated at Pune, Maharashtra, at a higher rate and Page 4 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022 R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 without any examination supplied to both the Gram Panchayats under NREGA scheme and had created bogus documents and cheated the government. He submits that the allegation is that the fertilizer was not of good quality and by raising bill of double price, the accused has got sanctioned the amount of Rs.11,46,875/-, thus submitted that no discretion may be exercised in favour of the accused.
7. The sections invoked in the present case are 409, 420, 467, 468, 471 and 114 of IPC. In Mohammed Ibrahim and others v. State of Bihar (supra), the Apex Court has explained the concept of "false documents" in the following terms:
"14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other persons, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or Page 5 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022 R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, knows the contents of the document or the nature of the allegations.
11. In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses."
"20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the Page 6 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022 R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 complaint is not by the purchaser. On the other hand, the purchaser is made a co- accused.
21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.
22. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419 or 420 of the Page 7 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022 R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 Code."
7.1 In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court made the following observations:-
"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 guide in myriad kinds of cases wherein such power should be exercised:
(a) 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;
(b) where the allegations in the First Information Report and other materials, if Page 8 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022 R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 any, accompanying the F.I.R. 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;
(c) 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;
(d) 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;
(e) 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;
(f) where there is an express legal bar Page 9 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022 R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 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;
(g) 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."
8. Here, in this case, the petitioner is a private person, while section 409 IPC invoked, is for the criminal breach of trust by public servant. The present petitioner by way of an order from both the Gram Panchayats had supplied the fertilizers to the Gram Panchayats. The allegation in respect of quality of fertilizer is of no reliance and would not be of any force against the petitioner since it was for the Gram Panchayats to examine the quality prior to purchase of the fertilizers. The order was given to the present petitioner by the Gram Panchayats and in performance of the order the petitioner has supplied the same. The internal illegality Page 10 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022 R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 and irregularity of the Gram Panchayats cannot be attributed to the present petitioner since she is not the part of the functionaries of the Gram Panchayats who decides about dealing under the scheme of the government. The petitioner is a private party to whom the order was given by both the Gram Pancyayats for supply of the fertilizers.
8.1 The petitioner, in support of her case, has produced details of Primary Account Holder at Vapi GIDC Branch of HDFC Bank where JMD Agri Products has been shown as the account holder; Form 402 under Gujarat Value Added Tax 2003 of JMD Agri Products, copy of the rent agreement in favour of the JMD Agri Products with the proprietorship of the present petitioner, communication of Vasumitra Life Energies Pvt. Ltd. dated 01.06.2007 in favour of M/s. JMD Agri Products regarding the distributorship of Samved products covering the area of south Gujarat and Union Territories of Silvasa & Daman.
8.2 The petitioner has also produced on record the document dated 13.04.2017 of Vasumitra Life Energies Pvt. Ltd. regarding Samved Humiphos - Phosphate Rich Organic Manure (PROM) addressed to M/s. JMD Agri Products, which shows that MRP price was Rs.375/- with 50 kg bag packaging. It has been further noted in the said communication that the Vasumitra Life Energies Pvt. Ltd.
Page 11 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 has a policy to have same MRP every where and thus MRP for the year 2016-17 was shown as Rs.550/-, and for the year 2017-18 Rs.575/- was the MRP. The details of sale of Samved Humiphos - Phosphate Rich Organic Manure (PROM) was noted in the communication. Vasumitra Life Energies Pvt. Ltd. by the said communication has informed M/s. JMD Agri Products that they had enclosed technical information sheet for claiming that the products supplied to JMD Agri Products was of standard quality and the same type of product is being sold in the market and Government of India has incorporated this products as Fertilizer Control Order. The copy of the licence was also given to M/s. JMD Agri Products for information and certificate of analysis of government lab was also provided to the petitioner to contend that their Company is reputed and well respected in the field of agriculture.
8.3 The document regarding details of challan number, bill number and the amount of the product purchased by M/s. JMD Agri Products from 03.09.2007 to 23.10.2007 is produced on record for confirmation of the Statement of Accounts for that period. In the same way, a communication dated 04.12.2007 from Varun Phosphates And Bio-Organics Pvt. Ltd. to M/s. JMD Agri Products regarding the confirmation of Statement of Account for the period from 15.10 to 30.11.2007, showing the challan numbers, bill numbers and the amounts of the material. Receipts of the product by various Gram Panchayats have Page 12 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022 R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 been produced on record by the petitioner in support of the Stock Register.
9. There is no allegation against the petitioner of fraudulently or dishonestly executing the documents. The petitioner has shown her source of procuring goods and the concerned current price, nor can it be said that there was fake or misleading representation and no ingredient of cheating found hence all the sections invoked in the FIR cannot be attributed to petitioner.
10. Section 409 is for any criminal breach of trust by the public servant in respect of the property. Herein, the petitioner had already handed over the fertilizers ordered from her by the concerned Gram Panchayats. The property was already entrusted and the dominance of the property was with the Gram Panchayats and for the supply of the fertilizers the petitioner had received the money by way of Demand Draft. There is no any misutilization and misappropriation of the money by the present petitioner. The petitioner is nowhere responsible for the internal management of the finances of the Gram Panchayats, thus, no ingredients under section 409 would attract.
11. Thus in view of the facts and circumstances of the case and taking into consideration the principles laid down in case of Mohammed Ibrahim and Others v. State of Bihar (supra), the petition is allowed. The impugned Page 13 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022 R/CR.MA/7423/2018 JUDGMENT DATED: 12/10/2021 FIR being C.R. No.I-96/2008 at Kaprada Police Station dated 15.12.2008, Sub-district Kaprada, District - Valsad, Criminal Case No.121/2015 pending before the learned Magistrate, Kaprada and the proceedings initiated in pursuance thereof are quashed and set aside qua the present petitioner. Rule is made absolute. Direct service is permitted.
(GITA GOPI, J.) Pankaj Page 14 of 14 Downloaded on : Sun Jan 16 23:40:42 IST 2022