Gujarat High Court
Radheshyam Gangadan Gadhvi vs State Of Gujarat on 31 July, 2024
NEUTRAL CITATION
R/CR.MA/17821/2015 ORDER DATED: 31/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 17821 of 2015
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RADHESHYAM GANGADAN GADHVI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HARSHIT S TOLIA(2708) for the Applicant(s) No. 1
MR PARTH S TOLIA(5617) for the Applicant(s) No. 1
MR SOAHAM M JOSHI, APP for the Respondent(s) No. 1
RULE SERVED THRU CONCERNED POLICE STATION for the
Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 31/07/2024
ORAL ORDER
1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-original accused seeks to invoke the inherent powers of this Court praying for quashing of the F.I.R. being C.R.No.I-174 of 2015 filed before the Tharad Police Station, District-Banasikantha, for the offence punishable under Sections-406, 420 and 114 of the I.P.C.
2. The facts of the prosecution case can be summarized in nutshell as under:-
2.1. It is the case of the prosecution that on 21.07.2015, a truck bearing registration No.PB-03-AA-6046 was detained by Page 1 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024 NEUTRAL CITATION R/CR.MA/17821/2015 ORDER DATED: 31/07/2024 undefined RTO Inspector at Tharad RTO Check Post solely on the ground that the goods were overloaded in the truck and on the strength of the same, the RTO inspector has detained the vehicle and registered an FIR being C. No.PB-03-AA- 6046R.No.1-126 of 2015 with Tharad Police Station on 04.08.2015 against the driver and owner of the said vehicle for the offence punishable under Section-431 of IPC. The owner of said vehicle was one Darshansingh Sikh and his son Jaswindersingh was the power of attorney holder of the owner Darshansingh Sikh.
2.2 That thereafter, 12.09.2015 at about 10:30 p.m. one Radhe Shyam Gadhvi i.e. the present applicant along with the driver had come as a representative of the original owner of vehicle bearing No.PB 03 AA 6046 with a sole intent to unload the goods in another vehicle, which were loaded in the detained vehicle and the officer concerned has given permission to the applicant to unload the goods from the detained vehicle No.PB-03-AA-6046 in another vehicle.
Thereafter, after a period of three to four hours, they did not surrender the vehicle and run away with detained vehicle and therefore, the present FIR is filed against the accused persons.
3. Heard Mr. Parth Tolia, learned advocate for the applicant and Mr. Soaham Joshi, learned APP for the respondent - State.
4. Mr. Parth Tolia, learned advocate for the applicant submits that it is the specific case of the prosecution that on 21.07.2015, one truck bearing registration No.PB-03-AA-6046 Page 2 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024 NEUTRAL CITATION R/CR.MA/17821/2015 ORDER DATED: 31/07/2024 undefined was passing through the Tharad RTO Check Post and at that relevant point of time, due to overloaded capacity of goods loaded in the truck, the officer concerned has detained the vehicle and registered a complaint under Section-431 of IPC. He further submits that the original owner of the said vehicle has preferred one application under Section-451 of Cr.P.C. to get interim custody of the said vehicle before the learned Judicial Magistrate First Class, Tharad being Criminal Misc. Application No.107 of 2015 and at that point of time, he has produced all the documents showing the original owner of the said vehicle. After considering the material available on record as well as the arguments canvassed by the learned advocates for the rival parties, the learned Magistrate has passed an order on 22.8.2015 by allowing the said application and directed to release the vehicle on certain conditions. On the strength of the said order passed by the court concerned, the original owner, who is residing at Punjab, requested to his agent i.e. the present applicant that he alongwith the driver get the custody of the detained vehicle and just fulfill the requirement of the court, the present applicant has gone alongwith the driver of the truck. He further submits that after showing the order of the Court concerned, the custody of the vehicle has already be taken legitimately.
5. Mr. Parth Tolia, further submits that immediately on the very next day, the FIR has been filed by the RTO and the registration of the FIR is nothing, but sheer abuse of process of law, it would amount to continuous proceedings of earlier transaction and squarely fall under the category of double Page 3 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024 NEUTRAL CITATION R/CR.MA/17821/2015 ORDER DATED: 31/07/2024 undefined jeopardize as at the time registration of the second FIR, the officer concerned has also shown the driver of the vehicle as an accused. He further submits that on the basis of same set of transactions, two different FIRs were registered within short span of time and that too, the present applicant-accused is not directly or indirectly connected with the commission of crime as well as as all not concerned with the ownership of the vehicle. He further submits that immediately on the basis of the registration of the FIR, the vehicle was detained by the concerned and with a sole intent to get back the custody of the vehicle, an application was preferred and after considering all the things, the concerned court has allowed the application and passed an order in favour of the applicant and with the copy of said order, they get the custody of the vehicle. He has produced a copy of receipt across the bar for an amount of Rs.34,200/- for payment of fine made in the office of RTO Office at Palanpur. He further submits that pursuant to the registration of the FIR, an investigation has commenced and as soon as the applicant came to know about the said fact, he has immediately approached the concerned court and considering the allegations levelled against the present applicant in the body of the FIR as well as averments made in the memo of application, a co-ordinate bench of this Court has ordered to issue rule and protected the present applicant by directing the Investigating Officer not to carry out the investigation. Therefore, charge-sheet has not been filed by the Investigating Officer. Considering the above-stated factual aspects as well as principle of law laid down by the Hon'ble Apex Court in the case of R.P. Kapur v. State of Punjab, AIR 1960 SC 866 :
Page 4 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024NEUTRAL CITATION R/CR.MA/17821/2015 ORDER DATED: 31/07/2024 undefined 1960 Cri LJ 1239 and in the case of State of Haryana v. Bhajan Lal, AIR 1992 SC 604, the prosecution instituted against the present applicant-accused are required to be quashed and set aside.
6. Mr. Soaham Joshi, learned APP appearing for the respondent - State has objected the present application with a vehemence and submitted that name as well as the specific role of the present applicant is clearly spelt out from the body of the FIR. He further submits that the present applicant - accused alongwith the driver of the vehicle had gone to the office of the RTO and made a request that they would like to unload the goods from detained vehicle in another vehicle. He further submits that the vehicle was on stationary condition near the RTO check post and it is practically not possible to remove the goods at that place and therefore, requested that they may be permitted to shift the vehicle at distance place, whereupon, the entire goods were transferred and loaded in another vehicle bearing No.PB-05-L-5565. He further submits that by saying so, they have taken the custody of the vehicle and thereafter, they runaway. Therefore, by adopting illegal modes taken custody of the vehicle from the lawful custody of the government officer and hence, they committed offence punishable under Section-406 and 420 of IPC. Hence, considering the role attributed to the applicant, the prosecution instituted against the present applicant is required to be continued.
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7. Having heard learned advocates for the respective parties and on perusal of the contents of the FIR, the issue falls for my consideration is as to whether the case is made out for invoking inherent powers of this Court?
8. At this stage, I would like to refer to the decision of Hon'ble Apex Court in the case of Achin Gupta v. State of Haryana and Another, reported in (2024) 4 Supreme 347, wherein the Hon'ble Apex Court has observed and held as under:
"20. It is now well settled that the power under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Cr.P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.
9. At this stage, I may refer to the parameters laid down by this Court for quashing of an FIR in the case of State of Haryana v. Bhajan Lal, AIR 1992 SC 604. The parameters are:-
"(1) 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an Page 6 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024 NEUTRAL CITATION R/CR.MA/17821/2015 ORDER DATED: 31/07/2024 undefined 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.
(3) 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.
(4) 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.
(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 en-grafted 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 malafide 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."
Therefore, this Court is of the view that the case of the present applicant falls within the parameters.
10. In the case of R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, the Hon'ble Apex Court summarised some categories of cases where inherent power can and should be exercised to quash the Page 7 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024 NEUTRAL CITATION R/CR.MA/17821/2015 ORDER DATED: 31/07/2024 undefined proceedings :
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
11. In view of the above referred judgments, this Court is of the opinion that it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence, which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, this Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained.
12. Before dwelling into issue involved in the matter, I would like to put reliance upon the provision of Sections 403, 406, 415, 420, 463 and 465, which reads as under:-
403. Dishonest misappropriation of property.--
Whoever dishonestly mis-appropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Page 8 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024NEUTRAL CITATION R/CR.MA/17821/2015 ORDER DATED: 31/07/2024 undefined Illustrations:
(a)A takes property belonging to Z out of Z's possession, in good faith, believing, at any time when he takes it, that the property belongs to himself. A is not guilty of theft; but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this section.
(b)A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book without Z's express consent. Here, if A was under the impression that he had Z's implied consent to take the book for the purpose of reading it, A has not committed theft. But, if A afterwards sells the book for his own benefit, he is guilty of an offence under this section.
(c)A and B, being joint owners of a horse, A takes the horse out of B's possession, intending to use it. Here, as A has a right to use the horse, he does not dishonestly misappropriate it. But, if A sells the horse and appropriates the whole proceeds to his own use, he is guilty of an offence under this section.
406. Punishment for criminal breach of trust.-- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
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".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section.
"420. Cheating and dishonestly inducing delivery of property.--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 a valuable security, or anything which is signed or Page 9 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024 NEUTRAL CITATION R/CR.MA/17821/2015 ORDER DATED: 31/07/2024 undefined 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 463:- Forgery - Whoever makes any false document or false electronic record or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
Therefore, as per Section 463, "whoever makes any false documents, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed", he is said to have committed the offence of forgery. Making a false document is defined under Section 464 IPC. Therefore, for the offence of forgery, there must be making of a false document with intent to cause damage or injury to the public or to any person.
13. At this stage, I would like to put reliance upon the decision of the Hon'ble Apex Court in the case of Mohd. Ibrahim & Ors. Vs. State of Bihar & Anr., reported in (2009) 8 SCC 751, the Hon'ble Supreme Court in para 9, 10 and 11 has observed as under:
"9. The term "forgery" used in these two sections is defined in section 463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into Page 10 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024 NEUTRAL CITATION R/CR.MA/17821/2015 ORDER DATED: 31/07/2024 undefined express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery. Section 464 defining "making a false document" is extracted below :
"464. Making a false document.--A person is said to make a false document or false electronic record---
First.--Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
10. An analysis of section 464 of Penal Code shows that it Page 11 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024 NEUTRAL CITATION R/CR.MA/17821/2015 ORDER DATED: 31/07/2024 undefined divides false documents into three categories:
10.1) 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 person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or 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.
10.3) 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, know the contents of the document or the nature of the alteration.
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 practicing deception, or from a person not in control of his senses."
14. Here in this case on hand, as stated above, the allegation is leveled against the present applicant is that he alongwith the driver had gone to the RTO check post to shift the goods from the detained vehicle in another vehicle. However if the facts of the case on hand are considered at it is on its entirety, in that event, it is found out that no forgery, as alleged, has been committed by the applicant - accused, which constitute the alleged offences.
Further, prima facie, there cannot be any case of cheating as dishonest or fraudulent inducement to deliver any property is not made out in the FIR. There is no injury sustained by the complainant through the applicant. Not only FIR but also Page 12 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024 NEUTRAL CITATION R/CR.MA/17821/2015 ORDER DATED: 31/07/2024 undefined chargesheet papers do not disclose any ingredients of cheating and there does not appear any false or misleading representation or any dishonest inducement. Thus, the FIR does not disclose any mens rea to even consider the case of any inducement. Therefore, I am of the opinion that even if the entire case of the complainant is accepted as it is, none of the ingredients to constitute the offence under Sections-406, 420 and 114 of the IPC could be said to have been spelt out. Thus, the impugned FIR lodged against the present applicant - accused is required to be quashed and set aside.
15. For the forgoing reasons, I am inclined to allow this application and therefore, the same is accordingly allowed. The F.I.R. being C.R.No.I-174 of 2015 filed before the Tharad Police Station, District-Banasikantha, is hereby ordered to be quashed. All consequential proceedings pursuant thereto shall stand terminated.
Rule is made absolute. Direct service is permitted.
(DIVYESH A. JOSHI,J) A. B. VAGHELA Page 13 of 13 Downloaded on : Fri Aug 16 21:44:07 IST 2024