Gujarat High Court
Patel Prahladbhai Ishwardas vs State Of Gujarat on 20 August, 2024
NEUTRAL CITATION
R/CR.MA/17725/2019 ORDER DATED: 20/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 17725 of 2019
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PATEL PRAHLADBHAI ISHWARDAS & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR RASESH H PARIKH(3862) for the Applicant(s) No. 1,2,3,4,5
MR HEMANG H PARIKH(2628) for the Applicant(s) No. 1,2,3,4,5
MR GHANSHYAMBHAI N PATEL(8700) for the Respondent(s) No. 2
MR JUCKY LUCKY CHAN(8033) for the Respondent(s) No. 2
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 20/08/2024
ORAL ORDER
[1.0] RULE returnable forthwith. Learned APP waives service of notice of Rule for and on behalf of respondent No.1 - State of Gujarat and learned advocate Mr. Jucky Lucky Chan waives service of notice of Rule for and on behalf of respondent No.2.
[2.0] By way of this petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC"), the petitioners have prayed to quash and set aside the FIR being I-CR No.56 of 2019 registered with Vasai Police Station, District Navsari for the offence punishable under Sections 420, 406, 465, 466, 467, 471, 504, 506(2), 120(B) and 114 of the Indian Penal Code, 1860 (for short "IPC) and section 135 of the Gujarat Police Act and to quash all other consequential proceedings arising therefrom.
Page 1 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined [3.0] At the outset, it is submitted that petitioner Nos.1 and 4 have expired during the pendency of the present petition and hence, present petition stands abated qua petitioner Nos.1 and 4 and is being considered for petitioner Nos.2, 3 and 5 only.
[4.0] Heard learned advocates for respective parties at length.
[5.0] The impugned FIR is filed at the instance of respondent No.2 against accused persons alleging that accused and respondent No.2 were partners in one partnership firm viz. M/s. Vaijnath Ceramic Industries and Ambika Ceramics Industries. Petitioners - accused and respondent No.2 were engaged in the partnership business and were working as commission agent of the partnership firm. But due to some dispute that arose between the partners, without informing the respondent No.2, petitioner No.1 / accused had made false documents and duped the respondent No.2 of his legitimate right and thereby the accused have committed the offence of criminal breach of trust and cheating with respondent No.2 and when respondent No.2 asked about the same, petitioners herein hurled abuses to respondent No.2.
[6.0] Learned advocate for the petitioners has submitted that the dispute has arisen in the year 2005 to recover the amount and to settle the dispute of partnership firm, civil suit came to be filed in the year 2012 wherein injunction application came to be dismissed on 25.02.2016. Being aggrieved and dissatisfied with Page 2 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024 NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined the said order, petitioners had challenged the said order by way of filing Appeal From Order before this Court which was also withdrawn subsequently in the year 2017. The civil suit was also dismissed for want of prosecution. Considering the aforesaid fact, as the alleged incident took place in the year 2005, belatedly civil suit was filed and after dismissal of the civil proceedings, impugned FIR is filed which is nothing but abuse of process of law and as such no offence of criminal breach of trust or cheating much less no any offence of forgery is made out qua the present petitioners. It is alleged that on 09.09.2005, by preparing forged document present respondent No.2 is ousted from the partnership firm and deprived of his legitimate right but no any documentary evidence is coming forth on the record. Hence, he has submitted that this is a fit case to exercise powers under Section 482 of the CrPC and has requested to allow the present petition.
[7.0] Learned advocate for respondent No.2 has vehemently opposed the present petition on the ground that the civil and criminal proceedings both are on different footing. The petitioners - accused have forged the document by which they have duped the legitimate right of the respondent No.2. Considering the aforesaid fact, as forgery being committed by the present petitioners, question of limitation does not arise and only on the ground of delayed lodging of FIR, same shall not be quashed at this stage as the investigation is at nascent stage and thorough investigation in connection with the impugned FIR is Page 3 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024 NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined required to be made. Therefore, he has requested to dismiss the present petition.
[8.0] Learned APP appearing for respondent No.1 - State of Gujarat adopting the submissions made by learned advocate for respondent No.2 has submitted that merely because civil proceedings are filed is not a ground to consider the present petition. Further, there is no bar to lodge the complaint after date of knowledge of the incident and considering the quantum of punishment of the offences alleged, there is no bar in taking cognizance of the offence. Hence, he has requested to dismiss the present petition.
[9.0] Having heard learned advocates appearing for the respective parties and going through the impugned complaint, it appears that the allegations are mainly leveled against accused No.1 but now, accused No.1 is no more and hence, question does not arise to go into the allegations of forgery. Now, so far as second part of allegations is concerned, alleged offence is committed qua partnership firm which was formed in the year 1988. The dispute qua partnership arose between the partners and in this regard, in the year 2005, they had settled the dispute. The said fact is apparent from the order passed by the learned Principal Senior Civil Judge in Special Civil Suit No.12/2012 below Exh.5 under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 wherein they have stated about the settlement of accounts and dissolution of the partnership in the year 2005.
Page 4 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined Perusing the said pleadings and observations made by the learned Civil Judge, it appears that after the dissolution of partnership between the parties and settlement of accounts of the partnership firm, the petitioners did not keep their words and did not pay the amount which they assured to pay to respondent No.2 while entering into settlement with respondent No.2 in the year 2012. Subsequently, the said special civil suits came to be transferred to Ahmedabad as Commercial Civil Suit Nos.300/2016 and 302/2016 which came to be dismissed and till date no any proceeding is initiated by respondent No.2 against the said dismissal of suits. Considering the aforesaid fact, as already the civil proceedings were going on between the parties and dispute was civil in nature, after dismissal of the said said suits in the year 2017, after two years, present complaint is filed in connection of the offence which took place in the year 2005 meaning thereby after a delay of 14 years though it was well within the knowledge of the present respondent No.2.
[9.1] So far as offence of forgery is concerned, allegation is against accused No.1 and he has expired during the pendency of present petition. Even otherwise, if we peruse the allegations made in the FIR, present petitioners are facing charge for the offence punishable under sections 420, 406, 465, 466, 467, 471, 504, 506(2), 120(B) and 114 of the IPC. So far as offence of forgery is concerned, to make out an offence under section 464 of the IPC, prosecution has to prove or there should be some material which indicates that present petitioners / accused have Page 5 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024 NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined forged any document and due to such document or part of document with intent to cause damage or injury to the public or any person or to support any claim or title.
[9.2] In aforesaid settled preposition of Law, if uncontroverted allegations leveled in the complaint are examined, prima facie, it appears that the allegations qua forgery is not against the present petitioners i.e. petitioner Nos.2, 3 and 5. There is no any evidence which indicates that present petitioners have forged any government document or put any entry in the revenue record and hence present petitioners have not forged any document or any valuable security. Perusing the investigation papers also, there is no iota of evidence which suggests that present petitioners have made any forged document or valuable security and they are maker of any forged document. Present petitioners have not forged any government record or any valuable security also. In view of above conspectus facts of case and settled proposition of law, as discussed in the earlier part, even if uncontroverted allegations leveled in the impugned FIR are accepted as it is then also, no any case is made out that present petitioners have forged any document. Thus, no offence of forgery is made out.
[9.3] As discussed above, prima facie, no any offence of forgery being made out and hence, this is a fit case to exercise power under section 482 of the CrPC as the case satisfy the test and falls within the parameters laid down by Hon'ble Supreme Court in the case of State of Haryana vs. Bhajan Lal reported in Page 6 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024 NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined (1992) Supp (1) SCC 335.
[10.0] Further, the impugned FIR is filed after a huge delay of 14 years, which is totally unexplained and inordinate delay in filing of FIR is one of the criteria which is required to be considered while considering the quashing petition. It is true that delay in lodging of the FIR is not a ground for quashing of proceedings but in frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. In this regard, reference is required to be made to the decision in the case of Mohammad Wajid and Anr. v. State of U.P. and Ors. reported in 2023 INSC 683. In this regard, reference is also required to be made to the decision of the Hon'ble Supreme Court in the case of Deepak Kumar Shrivas vs. State of Chattisgarh reported in (2024) 3 SCC 601. It is also appropriate to refer to the decision in the case of Kishan Singh (Dead) Through Lrs vs. Gurpal Singh and Others reported in (2010) 8 SCC 775 wherein the Hon'ble Supreme Court in paragraph No.22 has observed thus:
"22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay.Page 7 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024
NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case."
In above view of the matter, present is a case where FIR is lodged clearly with a view to spit the present petitioners because of a private and personal grudge and cloak of criminality is given to a civil dispute.
[10.1] So far as Section 420 of the IPC is concerned, it would be apposite to refer the decisions 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) Jay Shri & Anr. vs. State of Rajasthan (2024 INSC 48) passed in Criminal Appeal (arising out of SLP(Crl.) No. 14423 OF 2023) and (iii) 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 :
Page 8 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined "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 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 Page 9 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024 NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined 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. "
[10.2] Further, in the recent decision dated 06.02.2024 of the Hon'ble Supreme Court in the 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:
"In "Mohammed Ibrahim and Others v. State of Bihar and Another" 4, this Court had referred to Section 420 of the IPC, to observe that in order to constitute an offence under the said section, the following Page 10 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024 NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined ingredients are to be satisfied : -
"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)."
[11.0] Further, 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 Page 11 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024 NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined 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 Bhajan Lal (Supra), the Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised and held as under:
"(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."
[11.1] Considering the aforesaid proposition in consonance with the facts of the case on hand, to continue such proceeding Page 12 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024 NEUTRAL CITATION R/CR.MA/17725/2019 ORDER DATED: 20/08/2024 undefined against the present petitioners would be abuse of process of law and hence, present is a fit case to exercise powers under Section 482 of the CrPC.
[12.0] In wake of aforesaid discussion, present petition is allowed qua petitioner Nos.2, 3 and 5 only. Impugned FIR being I- CR No.56 of 2019 registered with Vasai Police Station, District Navsari alongwith all its consequential proceedings is hereby quashed and set aside qua the present petitioner Nos.2, 3 and 5 only. Rule is made absolute to the aforesaid extent only.
(HASMUKH D. SUTHAR, J.) Ajay Page 13 of 13 Downloaded on : Wed Aug 21 21:24:31 IST 2024