Gujarat High Court
Vivek Pukhraj Jain vs State Of Gujarat on 18 June, 2024
NEUTRAL CITATION
R/CR.MA/6574/2022 ORDER DATED: 18/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 6574 of 2022
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VIVEK PUKHRAJ JAIN
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR ANVESH V VYAS(5654) for the Applicant(s) No. 1
MR KARTIK V PANDYA(2435) for the Respondent(s) No. 2
MS DIVYANGNA JHALA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 18/06/2024
ORAL ORDER
1. RULE. Learned APP waives service of notice of Rule for the respondent State and learned advocate Mr.Kartik V. Pandya waives service of notice of rule on behalf of respondent No.2.
2. Considering the facts and circumstances of the case, the matter is taken up for final disposal forthwith.
3. 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 FIR No. 11214020220503 of 2022 registered with Kamrej Police Station, Surat, for the offences under Sections 406 and 420 of the Indian Penal Code, 1860 and all the consequential proceedings arising therefrom.
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4. At the instance of respondent No.2, FIR came to be lodged against the present applicant. It appears that applicant is involved in the business of event management and organize events of marriage and other family function. It appears that applicant is facing the charge under Sections 406 and 420 of the Indian Penal Code. It appears that a business transactions has taken place between the complainant and the applicant. During the course of business, the bill of the complainant went due to the tune of Rs. 85,24,000/- . Out of which, the applicant paid an amount of Rs. 42,61,000/- to the complainant. Thereafter, the applicant stopped making payment. Therefore, the present complaint is filed.
5. Learned counsel for the applicant has submitted that, the allegations levelled against the applicant are nothing, but an abuse of process of law and no transaction ever took place between the applicant and complainant. He further submitted that, there is no nexus or relationship or rather no amount is entrusted to the applicant by the complainant and therefore, the applicant has not committed any offence of criminal breach of trust and fraud. Further, the applicant has not played any mischief or abetted the offence. Therefore, without any nexus or evidence, no offence of cheating and fraud is being attracted qua the present applicant. In view of the above contentions, Mr.Vyas prays to allow present application and quash the FIR against the applicant, as prayed for, in this application.
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6. Learned APP appearing for the respondent-State has opposed the present application and contended that the present applicant has committed criminal breach of trust. Thus, prima facie involvement of the applicant is established and therefore, present application may not be entertained.
7. Learned advocate for the original Complainant has vehemently opposed the present application and submitted that earlier Dineshbhai Patil was partner in his business and thereafter, he was separated. In the month of October, 2019, Dineshbhai Patil talked to present complainant that Vivek Jail is owner of Mastar Event and he is doing work of Reo Colony Resort and complainant was said to do work of Mandap in that Reo Colony Resort and thereafter Vivekbhai came to complainant's house and said to complainant that he had booking of 12 to 13 Mandap work and complainant was told that if he would do work then he would be given money for each work and applicant further said to complainant that whatever material is required he can purchase from Delhi and applicant would give money after events therefore complainant borrowed Rs. 40,00,000/- and complainant brought material of Rs. 50,00,000/- from Delhi and thereafter completed work of Decoration and Mandap of 16 program between 09.11.2019 to 16.02.2020 in Reo Colony Resort. It is further submitted that applicant got work of Mandap Decoration, lighting, Flower decoration and Generators in marriage events from complainant of Rs. 85,25,400/- and for which Bills were also prepared with GST of Om Sainath Mandap Page 3 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024 NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined and applicant has also made advance payment of Rs. 42,61,000/- in peace meal and in voucher of moster event, sign of applicant, his manager, complainant and his daughter is also there. Since remaining amount of Rs. 42,64,400/- was remaining to be taken from the applicant therefore complainant went to applicant for getting remaining amount of Bill, at that time, applicant misbehaved with him and torn the Bills and threaten the complainant that "I will not give you money, do what you can". Thus complainant trusted applicant and worked with him but applicant betrayed and cheated complainant by not paying the remaining amount of work. It is further submitted that since applicant has not paid remaining amount of Bill therefore complainant did not cleared goods from Reo Colony thereafter applicant called his friends who are head strong persons namely Amitbhai Marvadi and Adityabhai Gadheda and they have beaten Alpeshbhai who was doing work of Generator and Morsing Rajput who was doing work of Lighting at relevant point of time and thereafter there was settlement among complainant, accused and accused friends and applicant ensured that he would pay remaining amount but thereafter also applicant has not paid remaining amount of bill and cheated the complainant. In view of above, the learned advocate for the original complaint has requested to dismiss the present application.
7.1. In support of his arguments, learned advocate for the original complainant has relied upon two decisions of the Hon'ble Apex Court; in case of (i) Digvijaysinh Himmatsinh Jadeja vs. Page 4 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024 NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined State of Gujarat reported in 2023(2) AIJEL-SC 72892 and (ii) Navin Kumar Rai vs. Surendra Singh reported in 2024(0) AIJEL- SC 73156.
8. In the present case, complaint is filed under Sections 406 and 420 of the IPC. To make out an offence under Sections 406 and 420 of the IPC, it is worth to refer to provisions of sections 405, 406, 415 and 420 of the IPC, which read as under:
(i) 405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
The essential ingredients of the offense of criminal breach of trust are: (1) The accused must be entrusted with the property or with dominion over it, (2) The person so entrusted must use that property, or; (3) The accused must dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation, (a) of any direction of law prescribing the mode in which such trust is to be discharged, or; (b) of any legal contract made touching the discharge of such trust.
Page 5 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined "Entrustment" of property under Section 405 of the Indian Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, 'in any manner entrusted with property. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of 'trust'. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.
The definition in the section does not restrict the property to movables or immoveable alone.
(ii) Section 415 of IPC define cheating which reads as under: -
415. Cheating. -Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"." The essential ingredients of the offense of cheating are:
1.Deception of any person
2. (a) Fraudulently or dishonestly inducing that person- (i) to deliver any property to any person: or (ii) to consent that any Page 6 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024 NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no so deceived, and which act or 23 (2009) 8 SCC 1 23 omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
A fraudulent or dishonest inducement is an essential ingredient of the offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating.
(iii) Section 420 of IPC defines cheating and delivery of property which reads as under: dishonestly inducing delivery of property. dishonestly inducing 420. Cheating and 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 s 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."
Section 420 IPC is a serious form of cheating that includes inducement (to lead or move someone to happen) in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by the way of cheating or inducement. Punishment for cheating is provided under this section which may extend to 7 Page 7 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024 NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined years and also makes the person llable to fine.
8.1. To establish the offence of Cheating in inducing the delivery of property, the following ingredients need to be proved. 1. The representation made by the person was false 2. The accused had prior knowledge that the representation he made was false. The accused made false representation with dishonest intention in order to deceive the person to whom it was made. The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed. It is well settled that every breach of contract would not give the to an offence of cheating and only in those cases of breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating in the present case, is has nowhere been stated that at the very inception that there was intention on behalf of the accused person to cheat which is a condition precadeos for offence under 420 IPC.
8.2. It appears that complaint does not disclose any criminal offence at all much less any offence either under Section 420 or 406 IPC and the present case is a case of purely civil dispute between the parties for which remedy lies before a civil court by filing a properly constituted suit allowing the police investigation to continue would amount to an abuse of the process of court Page 8 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024 NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined and to prevent the same it was just and expedient for the High Court to quash the same by exercising the powers under Section 482 Cr.P.C. There is distinction between mere breach of contract and cheating, which is criminal offence, is a fine one. While breach of contract cannot give rise to criminal prosecution for cheating, fraudulent or dishonest intention is the basis of the offence of cheating. In the case at hand, complaint filed by the Respondent No. 2 does not disclose dishonest or fraudulent intention of the appellants.
9. Having heard learned counsel for both the sides and going through the allegations levelled against the applicant, it prima facie appears that there is no nexus or relationship between the applicant and complainant and no evidence is produced on record, which connects the applicant in the alleged offence. Considering the aforesaid fact, it appears that the dispute is civil in nature and the amount of Mandap decoration work is entrusted and with a view to recover the amount, the complaint is filed. It is alleged that earlier the dispute arose and it was settled. Though bills were also prepared with GST of Om Sainath Mandap by the present applicant and denied the present applicant as nothing to pay to the complainant and thereby, the applicant has, till date, not paid any amount to the complainant and thereby he has committed the criminal breach of trust. In this regard, the complaint came to be filed. Perusing the complaint, it is required to be considered that the applicant has disowned the dues and itself the disputed question is as to whether any Page 9 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024 NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined amount does exist or not or any amount is outstanding or not. The said issue is required to be adjudicated that the party, in absence of any contract material or entrustment of the property, no case is made out. To make out the offence under Section 406 of Indian Penal Code, 1860, prosecution must have to prove that the accused was entrusted some property or with any dominion or power over it and there was dishonest intention, misappropriation or dishonest conversion or disposal of property in violation of directions of law or legal contract by the accused himself. Here in the case on hand, no any iota of evidence or allegation, which suggests entrustment of the property to the applicant and dishonest intention on the part of the accused. In absence of any such contract of transaction or any breach of terms of agreement between the complainant and applicant, no offence is made out. It is needless to say that liability recommends difference between the simple payment of investment of money and entrustment of the property. In absence of any fraudulent entrustment or dishonest intention as well as in absence of contractual relationship for the obligation between the accused and complainant, no offence is made out.
10. It would be apposite to refer the decisions of the Hon'ble Apex Court in case of (i)Sudhir Shantilal Mehta Vs. CBI (2009) 8 SCC 1, (ii) Vesa Holdings Pvt. Ltd. & Anr. Vs. State of Kerala & Ors. reported in (2015) 8 SCC 293 and (iii) Satishchandra Ratanlal Shah Vs. The State of Gujarat reported in 2019 (9) SCC 148.
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11. In case of Sudhir Shantilal Mehta (supra) it was observed that the act of criminal breach of trust would, Interalia mean using or disposing of the property by a person who is entrusted with or has otherwise/dominion thereover. Such an act must not only be done dishonestly but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.
11.1. In case of Vesa Holdings Pvt. Ltd. (supra), Hon'ble Supreme Court made the following observation:-
"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case, there is nothing to show that at the very inception there was any inception on behalf of an accused person to cheat which is a condition precedent for an offence u/s 420 IPC. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under Section 420 IPC can be said to have been made out. In the instant case, there is no material to indicate that Appellants had any malafide intention against the Respondent which is clearly deductible from the allegations mader in complaint.Page 11 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024
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12. In case of Satishchandra Ratanlal Shah (supra), the law recognises difference between simple payment/ investment of money and entrustment of money or property. Mere breach of promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust under Section 405 without there being a clear case of entrustment. In context of contracts distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. For sustaining these charges, existence of fraudulent or dishonest intention right at the beginning of transaction with mens rea must be shown.
13. In view of the above, this Court is of considered view that without any nexus or relationship between the applicant and complainant, the applicant has been arraigned as accused only with an intention to recover the outstanding money. Therefore, if the proceedings are allowed to continue against the applicant, the same will be nothing short of abuse of process of law and travesty of justice and therefore, this is a fit case to exercise inherent power under Section 482 of the Cr.P.C for quashing of criminal proceedings.
14. Considering the fact that applicant is also facing charge under Sections 406 and 420. In this regard, It would be apposite to refer the decision of the Hon'ble Apex Court in case of (i) Sarabjit Kaur vs. State of Punjab and Another reported in Page 12 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024 NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined (2023) 5 SCC 360 (ii) Rekha jain vs. The State of Karnataka & Anr. reported in 2022 LiveLaw (SC) 468, (iii) Jay Shri & Anr. vs. State of Rajasthan (2024 INSC 48) passed in Criminal Appeal (arising out of SLP(Crl.) No. 14423 OF 2023), (iv) Syed Yaseer Ibrahim vs. State of U.P. reported in 2022 SCC Online SC 271 and (v) A.M. Mohan vs. The State represented By SHO and Another reported in 2024 INSC 233, passed in Criminal Appeal (Arising out of SLP(Criminal) No. 9598 of 2022), wherein the Hon'ble Apex Court has observed as under :
"9. The law with regard to exercise of jurisdiction under Section 482 of Cr.P.C. to quash complaints and criminal proceedings has been succinctly summarized by this Court in the case of Indian Oil Corporation v. NEPC India Limited and Others (2006) 6 SCC 736 after considering the earlier precedents. It will be apposite to refer to the following observations of this Court in the said case, which read thus:
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few--Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] , State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , State of Bihar v. Rajendra Page 13 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024 NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] , Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615] , Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283] . The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate Page 14 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024 NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or
(c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not. "
15. In case of Lalit Chaturvedi & Others vs. State of Uttar Pradesh & Another rendered in Criminal Appeal arising out of SLP (Cri.) No.13485 of 2023, the Hon'ble Supreme Court has observed as follows:
Page 15 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined "18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.
19. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security)."
16. In the opinion of this Court, further continuation of criminal proceedings, more particularly offence under Sections 406 and 420 of IPC against the applicant/s in relation to the impugned FIR would cause unnecessary harassment to the applicant/s. 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.
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17. Insofar as authority relied upon by the learned advocate for the respondent No.2 is concerned, prior to dealt with, it is needless to say that each and every criminal case is required to be considered on its own merits. At this stage it is apposite to refer to the decision of Hon'ble Apex Court in the case of Parasa Raja Manikyala Rao And Anr. vs State Of A.P reported in AIR 2004 SC 132, wherein it has been observed and held as under:
"...Each case, more particularly a criminal case depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
17.1. Further, Hon'ble Apex court has observed in case of Sushil Suri V/s. CBI reported in 2011 SCC(Cri)Page 773 "It needs little emphasis that even one additional or difference between the conclusions in two cases and blindly placing reliance on decision is never proper. It is trite that, while applying ratio, the court may not pick out a word or sentence from the judgement divorced from the contex in which the said question arose for consideration. Moreover, Keeping in mind case reported in 2005 (4) SCC page 649 Zee Tele films Ltd. V/s.Union of India, wherein the Hon'ble Apex Court has observed as under :
Page 17 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined "Each case depends on it's own facts and close similarity between one case and another is not enough because even single significant detail may alter the entire aspect. In deciding such cases, one should avoid temptation to decide cases(as said by Cardozo)by matching the colour of one case against the colour of another to decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
17.2. Considering the fact of the case on hand, it appears that fact is different, in the case of (i) Digvijaysinh Himmatsinh Jadeja (supra), the fact was that there does exist the agreement and the terms and conditions were fixed, which were operational.
Even in the said case, the respondent had agreed to return 24 carat pure gold bar for which the consideration for a price to pay and deposit made in the fiduciary capacity. Hereinabove, no any such agreement between the parties is there and even no any fiduciary relationship or entrustment of the property, much less, no any allegations, which constitute the criminal offence and ingredients of Sections 406 and 420 of IPC are not satisfied and
(ii) in the case of Navin Kumar Rai (supra), in the said case also civil suit was filed to declare the transaction null and void independently, but the main controversy involved in the matter was that the Power-of-attorney forged and by impersonating the appellant, sale-deed came to be executed and add of Sections 467, 468 and 471 of the Indian Penal Code, 1860 offence was registered and considering the peculiar facts of the case of forgery, merely filing of the civil suit, It was decided the Page 18 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024 NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined proceeding under Indian Penal Code are independent and while exercising the inherent powers, the Court should examine only the prima facie existence of the offence. As discussed above, facts of the both cases are different and in the case on hand, no offence is made out as discussed in the earlier part, the authority relied upon by the learned advocate would not avail any assistance, herein no allegations are levelled against the present applicant that since inception there was an intention of cheating on the part of the present applicant-accused. As discussed on earlier part and even otherwise also as accused has disowned the alleged outstanding amount and then he had torn the bills, meaning thereby there does exist qua outstanding amount and the said amount itself is a disputed fact between the parties and the sum and substance of the applicant is only to recover the outstanding amount. In this regard, complaint came to be filed.
17.3. Learned advocate for the respondent No.2 has also relied on the grievance raised by the General Secretary of the Rastriya Majdoor Sena as he has addressed the letter of the year 2020 of the Joint Secretary of the Industrial Security, Surat, to recover the amount of the labourers, who are working in the non- organized Center.
17.4. Considering the aforesaid fact also it appears that with a view to recover the money, present application is filed. This is not only a case, wherein civil wrong is committed by the applicant and he has committed an offence of cheating or breach of trust.
Page 19 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined 17.5. Considering the aforesaid fact, no case is made out and the authority relied upon by the learned advocate for the respondent No.2 would not avail assistance to respondent.
18. 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, IAS & Anr., reported in AIR 2006 SC 2872 and in case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, the Apex Court has set out the categories of cases in which the Page 20 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024 NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined inherent power under Section 482 CrPC 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."Page 21 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024
NEUTRAL CITATION R/CR.MA/6574/2022 ORDER DATED: 18/06/2024 undefined
19. For the foregoing reasons and observations, prima facie, it appears that cloak of criminality is given to civil dispute and the applicant is having no any past antecedent, the present application is allowed. The impugned complaint being FIR No. 11214020220503 of 2022 registered with Kamrej Police Station, Surat as well as 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.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 22 of 22 Downloaded on : Thu Jun 20 20:51:03 IST 2024