Gujarat High Court
Rajeshbhai Prabhatbhai Meyatra & 3 vs State Of Gujarat & on 11 February, 2014
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.MA/931/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 931 of 2014
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RAJESHBHAI PRABHATBHAI MEYATRA & 3....Applicants
Versus
STATE OF GUJARAT & 1....Respondents
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Appearance:
MR BM MANGUKIYA, ADVOCATE for the Applicants No. 1 - 4
MS MEHTA ADDL PUBLIC PROSECUTOR for the Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 11/02/2014
ORAL ORDER
The petitioners are alleged to have committed offence punishable under Sections 420 read with Section 120B of the Indian Penal Code (for short IPC) in an FIR registered as ICR No.8 of 2014 on 08/01/2014 before ADivision Police Station, Rajkot City.
The gist in the complaint is that, land bearing Revenue Survey No.274 admeasuring 5 Hectare, 30 Gunthas and 14 Square Meters situated at Village Sadalpor is jointly owned by the complainant, who was promised a loan of Rs.3 Crores on the condition of his executing an agreement to sell with a life of 36 months, as a security, which agreement was to be returned on repayment of the loan. For the purpose, the complainant was ultimately introduced to the Page 1 of 6 R/CR.MA/931/2014 ORDER applicant No.1Rajeshbhai Prabhatbhai Meyatra by Kishor Chavda, applicant No.2 stating that applicant No.1 was the main person in the Swaminarayan Trust and that he would make him available the required amount with the interest @ 1% on the condition aforementioned. Accordingly, the complainant agreed. He was then called by applicants No.2 and 3 at Rajkot on 07/01/2014. The visiting card of the address of applicants No.2 and 3 was made available to the complainant by applicant No.2.
On 07/01/2014, the complainant alongwith his father-Babubhai, brotherAshwin and partnerSanjaybhai and an Advocate, Ashwinbhai reached Rajkot and consulted their agent Mitesh and Arvind. 2nd applicant was also contacted. Thereafter, they went to Bhabha Guest House and found applicant Nos.2 and 3 and the broker-Mitesh waiting there. Necessary documents like photographs, identity cards were obtained from the complainant side by applicant No.3 and the brokers aforementioned. Thereafter, they were asked to wait for being taken to the Court for other formalities.
Two brokers took them to the Court where the applicant No.1 and his fatherapplicant No.4 were present. A document i.e. agreement to sell was prepared quoting the price of land at Rs.97 Lacs and a down payment of Rs.1,15,000/ was referred to as having been received by the seller. Other document contained recital of the receipt of Rs.3 Crore. The complainant was asked to sign both the documents, but Page 2 of 6 R/CR.MA/931/2014 ORDER he signed only agreement to sell and the unsigned document i.e. acknowledgment receipt was kept by the complainant with himself. It is alleged that thus there was an oral agreement that the said agreement to sell was to be treated as security only. It is further stated that while retaining the original agreement to sell with himself, the complainant asked the applicant Nos.1 and 2 to make payment whereupon both of them told him to come to Swaminarayan Temple at Kalavad Road where the required money will be given to them. Accordingly, the complainant and his father and the brokers alongwith applicant No.2 embarked the car and went to the street adjoining the Swaminarayan Temple as directed. Applicant No.2 is alleged to have promised them that he would come back with money. Thereafter, Kishor Chavda, applicant No.2 disembarked the car. The complainant also disembarked it and then the applicant No.2 allegedly snatched away the original agreement to sell and ran away. It is alleged that a motorcycle ready to manage escapade of applicant No.2 was parked nearby; he was accordingly helped and thus it is the case of the complainant that after inducing him to execute the agreement to sell, with a promise to make him available a loan of Rs.3 Crore, the document came to be snatched away whereupon the complainant sought help of Police Officer known to him and made his efforts to get back the agreement to sell, but in vain.
Learned Counsel for the applicant while referring to Section 420 of the IPC would contend that Page 3 of 6 R/CR.MA/931/2014 ORDER the snatching of a document would not amount to offence under that provision.
Learned Counsel for the applicants has placed reliance upon following decisions in support of his case with a contention that no ingredients of Section 420 of the IPC were attracted in the present as well.
1. Thermax Limited & Ors. Vs. K M Johny & Ors., [(2011) 13 SCC 412].
2. Apurva Navnitlal Thakersy & Ors. Vs. State of Gujarat & Anr., [2013 (3) GLH 358].
Section 420 punishes the act of cheating and dishonest inducement of delivering the property. Cheating is defined in Section 415 of IPC, a perusal of which indicates that the main ingredients thereof are deception, fraudulent or dishonest inducement to the one deceived to deliver the property or securing the consent of retention of the property or intentional inducement, causing or likely to cause damage or harm to that deceived person in body, mind, reputation or property, to do or omit to do anything which otherwise he would have done or abstained in absence of such deception/inducement.
The detailed narration of the facts as above in the complaint are incapable of giving a clean chit to the applicants at this preliminary stage of investigation. Suffice it to say that the contents of the complaint as a whole does not speak about Page 4 of 6 R/CR.MA/931/2014 ORDER innocence of the applicants and it is premature at this stage to say that the complaint/FIR against them does not disclose a cognizable offence.
In Apurva Navnitlal Thakersy (Supra) in paragraph No.9.2, following observations came to be made:
"9.2 The case can be considered in slightly different manner. In case of any dispute or, aggrieved party can avail the remedy under criminal machinery provided, either "the act" complained off, prima facie contains essential ingredient of such offence and/or there exist guilty mind on the part against which grievance is made. Thus, if the complainant is not able to figure out clearly "act" on the part of the accused by linking him with offence, still the complainant would have chance to succeed,atleast at initial stage by showing guilty mind on the part of such party. Intention is a determinative..."
The above observations aptly apply to the facts of the present case; inasmuch as, clear assertion of the complainant having been induced by promising the loan of Rs.3 Crores, to execute agreement to sell, and thereafter preparation of such agreement and snatching it away by applicant No.2 after luring him to a place as above by the applicants, exhibiting guilty mind of the applicants have been made in the complaint.
In Thermax Limited (Supra), on facts the Hon'ble Supreme Court noticed existence of a civil dispute and invocation of the criminal machinery by duplication of the complaint on the same subject and in that context Section 420 of the IPC was interpreted and on facts, the ingredients of Section 420 were not found. The case discusses well settled principle of law that for realization of civil right misuse of Page 5 of 6 R/CR.MA/931/2014 ORDER criminal machinery is unwarranted. In the facts of the present case, the decision is not helpful to the applicants.
The argument is that at this preliminary stage Sections 91 and 92 of the Indian Evidence Act should be invoked. The argument is too far fetched and misconceived inasmuch as, very specifically the complainant has come out with the case that there was oral agreement to execute an agreement to sell meant to be furnished as security for the purpose of getting the loan of Rs.3 Crores. The agreement itself was not reciting any loan transaction, but it was agreed that such document shall have to be retained by the applicants as security. It is, therefore, obvious that none of the averments made in the complaint would form part of the agreement to sell. Therefore, the document i.e. agreement to sell cannot be read at this stage.
Under the aforesaid circumstances, no case for quashment of the complaint is made out. Hence, this Court is unable to find any substance in the application; accordingly it is summarily dismissed.
(G.R.UDHWANI, J.) sompura Page 6 of 6