Gujarat High Court
Subhashbhai Jekishandas Gaekwad vs State Of Gujarat on 2 August, 2024
NEUTRAL CITATION
R/CR.MA/7709/2021 ORDER DATED: 02/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7709 of 2021
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SUBHASHBHAI JEKISHANDAS GAEKWAD
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
MR KISHAN PATEL FOR MR MAULIK NANAVATY NANAVATI & CO.(7105)
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 : 02/08/2024
ORAL ORDER
Rule. Learned advocates for the respective parties waives service of notice of rule for the respective respondents.
1. Considering the facts and circumstances of the case, the matter is taken up for final disposal forthwith.
2. Heard learned advocate Mr.Zubin F. Bharda for the petitioner, learned APP Ms.Divyangna Jhala for the respondent State and learned advocate Mr.Kishan Patel for the respondent No.2.
3. By way of this application under Article 226 and 227 of Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the petitioner, has prayed to quash and set aside the complaint being Part-C C.R. No.11822004200766 of 2020 registered with Khergam Police Station, District : Navsari for the offence punishable under Sections 406, 409, 411 and 114 of the Indian Page 1 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024 NEUTRAL CITATION R/CR.MA/7709/2021 ORDER DATED: 02/08/2024 undefined Penal Code.
4. Brief facts of the case are as under :
The case of the petitioner is one of complete denial. It is undisputed that the petitioner is a registered contractor with DGVCL, having been awarded the contract for electrification work in the villages of Ronvel, Rankuva, Khergam, and Rumla Sub-Divisions. The petitioner has diligently carried out the electrification work and claims that a sum of ₹40,00,000/- is due and receivable from DGVCL for the work completed to date. It appears that the stock of material provided to him as a contractor is audited annually by the Audit Department of DGVCL, and everything has been found to be in order. However, the petitioner alleges that the FIR was lodged at the behest of other contractors, including the complainant, who wishes to secure the contract work executed successfully by the petitioner. The petitioner believes that the FIR was filed due to personal interests and interference from these competitors. The complainant's FIR, if accepted in its entirety, reveals that material found in the scrap godown of scrap dealer Prakashbhai Chhitlabhai Patel was sold to him by several individuals: Rizwan, son of Niyamat Inayat Khan, resident of Village Agasi, Hanuman Faliya; Bhuperendra Amratbhai Gaekwad, resident of village Nadgadhri, Desai Faliya; one Vimalbhai; and Satishbhai Mohanbhai Deshmukh, resident of village Nadgadhri. The FIR further indicates that Bhuperendra Amratbhai Gaekwad, Vimalbhai, and Satishbhai Mohanbhai Deshmukh were working Page 2 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024 NEUTRAL CITATION R/CR.MA/7709/2021 ORDER DATED: 02/08/2024 undefined for contractors Shri Darshan Amaratbhai Gaekwad and Shri Subhashbhai J. Gaekwad (the petitioner). The petitioner denies any connection with these individuals or their involvement in the work for DGVCL. Furthermore, DGVCL did not issue any notice to the petitioner between 2017 and 2020 regarding any deficit in the material. The verification of freehold material also showed no irregularities.
5. Learned advocate for the petitioner has submitted that the petitioner is a contractor in DGVCL. The allegations are that freehold material was found in the scrapyard of a scrap dealer. Referring to the panchnama dated August 26, 2020, it is submitted that, according to the said Rojnama, no such material was recovered. The material issued and used was in accordance with the supply, and there was nothing left to be added to the list. Despite this, an FIR was lodged on September 3, 2020. To demonstrate bona fides, the applicant has deposited the alleged amount of the goods, i.e., Rs. 2,50,000/-, while reserving the right to raise further contentions at an appropriate time. It is further submitted that, to clear the dues, Rs. 34 lakhs is owed from DGVCL to the applicant. The submission is that a false complaint has been lodged against him to prevent recovery of this amount. The advocate argues that no deficiency has been found and that, since the applicant successfully completed the work entrusted to him, no prosecution should be pursued.
6. Learned advocate for the applicant has also drawn the Page 3 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024 NEUTRAL CITATION R/CR.MA/7709/2021 ORDER DATED: 02/08/2024 undefined attention of this Court that during the enquiry also and subsequently the PGVCL has not found any loss of material or any shortfall. The supplied material is misused and in this regard, he has relied on the reply given under the RTI Act dated 30 th January 2021 by the Executive Engineer PGVCL Valsad Rural, wherein stating that there is no shortfall in the allotted material. Considering the aforesaid fact he has requested to allow the present application. Further it is submitted that to show his bona fide, ₹2,50,000/- is deposited before the trial court. He has no objection, if the said amount is given to DGVCL. Considering the aforesaid fact, he has requested to allow the present application.
7. Learned advocate Mr. Kishan Patel appearing for the DGVCL has opposed the said application and stated that the offence is serious one and prima facie involvement of the applicant is proved and question of evidence is led before the learned trial court. Considering the aforesaid fact he has also repeated the allegation of mala fide intention and rupees 34 lakh is already paid, hence the allegation that with a view to withhold the amount of the dues, the present proceedings being lodged and the said allegation is far from truth.
8. Learned app has also adopted the said arguments and stated that the present petitioner has committed criminal breach of trust after entrustment, no case is made out to exercise the jurisdiction under section 482 of the criminal procedure code and it is also submitted that let the trial be Page 4 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024 NEUTRAL CITATION R/CR.MA/7709/2021 ORDER DATED: 02/08/2024 undefined conducted and evidence be led. It is submitted that the evidence is collected and prima facie involvement is there. In view of above, learned APP has requested to dismiss the present application.
9. Having heard the learned advocates for the respective parties and going through record, it appears that the complaint is filed under Sections 406 of the IPC. To make out an offence under Sections 406 of the IPC, it is worth to refer to provisions of sections 405, 406 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 Page 5 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024 NEUTRAL CITATION R/CR.MA/7709/2021 ORDER DATED: 02/08/2024 undefined made touching the discharge of such trust.
"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 immovable alone.
10. Having gone through the material available on record, it appears that the alleged material is allotted to the present applicant to carry out the work which is found from the scrap yard, which is worth of rupees ₹2,33,780.08 in absence of the direct connection with the present applicant as to weather he has misused and committed the criminal breach of trust or with mala fied intention or fully knowing well that sections 409 and 411 but nothing is found from the conscious possession of the present applicant and in absence of any mala fide intention and knowing fully aware that the impugned material is stolen material, he has kept in the possession in absence of such allegations, no case is made out and the fact remains from the attraction of section 406 Page 6 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024 NEUTRAL CITATION R/CR.MA/7709/2021 ORDER DATED: 02/08/2024 undefined and 409 is concerned, for that, the prosecution must be have to first show that the entrustment of the property and the present applicant has committed the criminal breach of trust. Further considering the aforesaid fact, even otherwise alleged material is worth ₹2,33,780.08 and against that the applicant is having no objection if the amount lying is deposited with the learned trial court and he has no objection if an amount of , ₹2,50,000/- is released in favour of DGVCL towards the alleged miss appropriation with accrued interest.
11. To make out the offence under Section 406 of Indian Penal Code, 1860, prosecution must have to prove that the accused was entrusted 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 petitioner 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 petitioner, 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.
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12. Further the applicant has tendered affidavit, which is taken on record, wherein stating that "Vide order dated 03.11.2020, applicant was directed to deposit a sum of Rs.2,50,000/- before the trial court on or before 31.03.2021, which would be without prejudice to the rights and contentions. The applicant had deposited the aforesaid amount of Rs.2,50,000/- before the Trial court and the receipt issued by the Nazir is also annexed at Annexure-G to the petition. The applicant have no objection if the amount of Rs.2,50,000/- is which lying deposited in the trial court is released in favour of the Dakshin Gujarat Vij Company Limited and adjusted towards the amount of alleged misappropriation of Rs.2,33,780.08. The applicant state that this concession given by me may not be treated as if the applicant have accepted the allegation levelled in the alleged offence, however, because the complaint is filed on behalf of the Dakshin Gujarat Vij company limited and it being a public sector undertaking, the applicant have decided to forgo the amount of deposit, which is lying deposited before the trial court as per the order passed by this Hon'ble court.
13. In view of the above, this Court is of considered view that without any nexus or relationship between the petitioner and complainant, the petitioner has been arraigned as accused only with an intention to recover the outstanding money. Therefore, if the proceedings are allowed to continue against the petitioner, 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 Page 8 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024 NEUTRAL CITATION R/CR.MA/7709/2021 ORDER DATED: 02/08/2024 undefined criminal proceedings.
14. Considering the fact that petitioner is also facing charge under Section 406. 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 (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.Page 9 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024
NEUTRAL CITATION R/CR.MA/7709/2021 ORDER DATED: 02/08/2024 undefined 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 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 Page 10 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024 NEUTRAL CITATION R/CR.MA/7709/2021 ORDER DATED: 02/08/2024 undefined 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 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. "
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15. So far as the allegation under Section 411 of the IPC is concerned, no evidence or allegation suggest that, accused has retained or received any stolen property dishonestly, no case is made out under Section 411 of IPC against the petitioner in relation to the impugned FIR would cause unnecessary harassment to the petitioner/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.
16. 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 petitioner and he has committed an offence of cheating or breach of trust.
17. 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 Page 12 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024 NEUTRAL CITATION R/CR.MA/7709/2021 ORDER DATED: 02/08/2024 undefined 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 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 Page 13 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024 NEUTRAL CITATION R/CR.MA/7709/2021 ORDER DATED: 02/08/2024 undefined 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."
18. For the foregoing reasons and observations, prima facie, it appears that cloak of criminality is given to civil dispute and the petitioner is having no any past antecedent, the present application is allowed. The impugned complaint being Part-C C.R. No.11822004200766 of 2020 registered with Khergam Police Station, District : Navsari as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the petitioner herein. Rule is made absolute. Direct service is permitted.
(HASMUKH D. SUTHAR,J) KUMAR ALOK Page 14 of 14 Downloaded on : Tue Aug 06 21:14:20 IST 2024