Gujarat High Court
Parveen Mahendra Gandhi vs State Of Gujarat on 22 August, 2023
NEUTRAL CITATION
R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13325 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
PARVEEN MAHENDRA GANDHI
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
MR AM PAREKH(562) for the Respondent(s) No. 2
MR. CHINTAN DAVE, APP for the Respondent(s) No. 1 - State
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 22/08/2023
ORAL JUDGMENT
1. Rule. The present application is filed for seeking following reliefs:
"B. That this Honourable Court be pleased to Page 1 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined quash and set aside the complaint registered as I
- CR. No. 28 of 2016 lodged by the respondent No.2 under sections 467, 468, 471 and 120(B) of the Indian Penal Code with Gandevi Police Station, District - Navsari, against the petitioner, in the interest of justice.
C. Pending admission and or final disposal of this petition this Honourable Court be pleased to stay of investigation of the complaint registered as I - CR. No. 28 of 2016 lodged by the respondent No.2 under sections 467, 468, 471 and 120(B) of the Indian Penal Code with Gandevi Police Station, District - Navsari.
D. That this Hon'ble Court be pleased to grant such other and further relief as may be deemed fit and proper in the facts and circumstances of the case.
E. That this Hon'ble Court be pleased to award cost of this petition."
2.1 Brief facts of the case as per the case of the applicant in this application are as such that the on 24.5.2016, complainant - Shardaben W/o. Natvarlal Page 2 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined Gandhi lodge complaint against the accused alleging that accused after the death of her son got false registration made about the marriage and used it as a true marriage certificate and thereafter, withdrew money from the Bank accounts of her son and thereby committed the alleged offence.
2.2 Further, on 30.11.1984 the applicant was married to one Sarosh Daruwala at Navsari and out of the said wedlock, the applicant gave birth to two boys. It is further the case of the applicant in this application are as such that the differences started to crop up between them, the applicant and her husband filed Parsi Matrimonial Suit No. 1/2004 and prayed for marriage to be dissolved as it had irretrievably broken down. The learned Judge, Parsi District Matrimonial Court, Surat, vide judgment and order ordered dissolution of the marriage. It is further the case of the applicant in this application are as such that on the other hand, deceased Mahendrabhai Natwarlal Gandhi was married to one Daxaben Bachubhai Gandhi and out of the said wedlock they have two children one daughter namely Ruchi and one son namely Ronit. After Daxaben expired due to Page 3 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined illness on 05.03.2007, the applicant and deceased Mahendra Natvarlal Gandhi came in contact with each other and fell in love with each other and got duly married on 20.06.2007 and thereafter, both also got married as per the customs prevalent in the community on 15.11.2007. It is further the case of the applicant in this application are as such that the husband of the applicant suffered from cancer of the tongue and upon realizing that he will not survive the cancer, executed a registered Will in the office of Sub-Registrar Navsari after obtaining a fitness certificate from a Doctor to certify that the said Mahendrabhai although is ill but he is mentally capable of executing a Will. 2.3 It is further the case of the applicant in this application are as such that ss per the Will, the property of Bungalow in which the applicant was residing with Mahendrabhai and Ronit after her marriage was bequeathed to the applicant along with all the other movable assets of the deceased. The complainant who is the mother namely Shardaben, daughter Ruchi and son in law Krunal of the deceased husband of the applicant namely Mahendra had a vested interest in the Bungalow, Page 4 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined which has been bequeathed by deceased Mahendrabhai to the applicant and therefore, they were pressurizing the applicant to vacate the bungalow and for which the daughter Ruchi has also filed a Special Civil Suit No.25/2015 in the month of April 2015 by making false assertions and by portraying the applicant as a mistress. The applicant after being served with the summons filed a suitable reply denying all the allegations leveled against her. The applicant craves leave to refer to and rely upon the plaint as well as the written statement at the time of hearing of the application. The applicant states that a complaint came to be filed in June 2015 against the applicant in Navsari Rural Police Station on the basis of which the applicant and Ronit were summoned before the Police Station and their statements were recorded. The applicant at that time, also submitted all the necessary documents to satisfy the police officer that the allegations leveled by the complainant were false and frivolous and devoid of truth. 2.4 It is further the case of the applicant in this application are as such that when the complainant did not succeed in her evil designs of dispossessing the Page 5 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined applicant from the bungalow, by taking undue advantage of the applicant being out of Navsari Town got filed a false FIR in connivance with the local police on 06.10.2015 in Navsari Rural Police Station similar to the complaint filed in June 2015 with identical allegations. It is further the case of the applicant in this application are as such that the complainant along with unidentified hardcore individuals like musclemen forcibly entered in the bungalow and took Ronit Mehendra Gandhi (son) of the applicant) in captivity and confined him illegally against his wishes and have took over the forceful possession of the bungalow. It is further the case of the applicant in this application are as such that the applicant on the other hand, could not do anything but file an application praying for anticipatory bail from the District court, Navsari as the Investigating Officer sought to arrest the applicant in connection with the false FIR filed by the accused. The learned Additional Sessions Judge, initially ordered the learned Public Prosecutor to instruct the Investigating Officer not to arrest the applicant till the hearing and final outcome of the anticipatory bail application.
Page 6 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023
NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined 2.5 It is further the case of the applicant in this application are as such that the applicant thereafter, upon being granted the protection prepared a complaint and approached the Inspector General of Police, Surat Range and complained of the entire conspiracy hatched by the accused in collusion with the local Police which had also connived for the purpose of dispossessing the applicant from the bungalow and thereafter, make the applicant run under the fear of arrest in connection with the false FIR registered against her. The IGP in turn relegated the applicant to the respondent No 2 herein / Superintendent of Police, Navsari, who when approached by the applicant, told her that the applicant being an accused against whom an FIR was already registered, her complaint would not be accepted and she was made to understand that an accused cannot file a complaint. The applicant however, approached the Navsari Rural Police Station with the complaint which was prepared by her and the same was received by the Police Inspector, Navsari Rural Police Station.
2.6 It is further the case of the applicant in this application are as such that the learned Additional Page 7 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined Sessions Judge, Navsari vide judgement and order dated 03.11.2015 rejected the anticipatory bail application filed by the applicant against which the applicant filed Criminal Misc. Application No.21623/2015 before this Hon'ble Court and prayed for being released on anticipatory bail. It is further the case of the applicant in this application are as such that this Court vide order, after hearing the applicant and the learned Public Prosecutor as well as the learned advocate appearing for the complainant by observing that the accused is a lady and prima facie it appears that the transaction is civil in nature issued Rule make it returnable on 30.11.2015 and in the meantime, restrained the Investigating Officer from taking any coercive steps against the applicant. It is further the case of the applicant in this application are as such that the applicant therefore, upon being granted the protection, once again approached the District Superintendent of Police and complained of the inaction and laxity on the part of the respondent no.3 in registering an FIR despite the serious cognizable offence was committed by the accused named therein and despite the fact that the son of the applicant was illegally confined and kept in captivity.
Page 8 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023
NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined 2.7 It is further the case of the applicant in this application are as such that the applicant therefore fearing for her son Ronit also filed an application under section 97 of the Criminal Procedure Code, wherein notice came to be issued by the learned JMFC, Navsari against the respondents named in the application who had allegedly kidnapped and illegally confined Ronit and who were forcing Ronit to give a statement against the applicant. It is further the case of the applicant in this application are as such that the applicant therefore fearing for her son Ronit also filed an application under section 97 of the Criminal Procedure Code, wherein notice came to be issued by the learned JMFC, Navsari against the respondents named in the application who had allegedly kidnapped and illegally confined Ronit and who were forcing Ronit to give a statement against the applicant. It is further the case of the applicant in this application are as such that the applicant on the other hand, filed Special Criminal Application No.7078/2015 before this Hon'ble Court and this Hon'ble Court vide order dated 01.12.2015 was pleased to issue directions after taking into account of the seriousness of the Page 9 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined situation as Ronit was kept in illegal confinement and the applicant feared for his well-being. It is further the case of the applicant in this application are as such that after taking into account the fact that the son of the applicant was removed from the unlawful confinement by the Police Inspector, Navsari Rural Police station and produce before the Judicial Magistrate First Class, Navsari, who in turn recorded the statement of the son of the applicant.
2.8 It is further the case of the applicant in this application are as such that despite cognizable offence was disclosed upon perusal of the complaint and the applicant having approached the District Superintendent of Police, the police Officer, Navsari Rural Police station has blatantly refused to register an FIR and on the other hand, the respondent nos.2 and 3 have registered an FIR of Ronit Mahendrabhai Gandhi (son of the applicant) which is not the version as disclosed by Ronit. The impugned complaint is therefore, one more attempt by the complainant to pressurize the applicant by making false allegations of the applicant having forged a certificate of marriage by getting it registered in the Page 10 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined office of Registrar by alleging that the applicationer got it registered after the death of her son. It is further the case of the applicant in this application are as such that the impugned complaint filed against the applicant being manifestly attended with mala fide intention and the same being maliciously instituted with an ulterior motive of harassing the applicant who has not committed any offence as alleged nor any offence as alleged is being made out from the allegations levelled in the complaint and even if the allegations levelled in the complaint are accepted in their entirety do not make out any cognizable offence against the applicant. Hence, this application is preferred.
3. Heard learned advocate Mr. Zubin F. Bharda for the applicant, Mr. A.M. Parekh, learned advocate for the respondent No.1 - complainant and Mr. Chintan Dave, learned Additional Public Prosecutor (APP) for the respondent No.1 - State.
4.1 Learned advocate Mr. Zubin F. Bharda, representing the applicant, drawn the Court's attention to the contents of the First Information Report (F.I.R.) filed by the mother-in-law of the accused person, Parveen. The Page 11 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined F.I.R. is based on allegations under Sections 467, 468, 471, and 120-B of the Indian Penal Code. He emphasized that the F.I.R. asserts that Parveen, who identifies herself as the wife of the deceased - Mahendra Gandhi, son of the applicant, has withdrawn amounts from various accounts and properties that belonged to Mahendra Gandhi, who passed away in 2010. It is also alleged that Parveen created a fraudulent certificate at the Sub-Registrar's Office on 28.7.2007, identifying herself as Mahendra Gandhi's wife, and withdrew amounts from Axis Bank, Central Bank, etc. The complaint has been lodged under the mentioned sections of the Indian Penal Code.
4.2 Furthermore, Mr. Bharda contends that the complaint itself seems to be motivated by malicious intent and has been filed by the mother of the deceased. He pointed to photographs on record showing the marriage between the deceased, Mahendra Gandhi, and the accused person, Parveen (applicant), where the complainant's mother was also present during the marriage ceremony. He highlighted the registered memorandum of marriage at the Sub-Registrar's Office in Gandevi on 28.7.2007, as Page 12 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined well as a certificate from the Civil Surgeon at the Government Hospital, Navsari, dated 4.10.2010, stating that Mahendra Gandhi was mentally sound despite suffering from malignancy.
4.3 He further presented a Will executed in favor of the present applicant by Mahendra Gandhi in the year 2010. Lastly, he drew attention to a prior order dated 1.12.2015 issued by the Co-ordinate Bench of this Court in Special Criminal Application No.7078 of 2020. According to this order, the complainant had unlawfully confined the applicant's son, which led to various legal proceedings. Mr. Bharda argued that the present complaint is driven by malicious intent, intended to harass the applicant, possibly influenced by a retired police officer with an interest in seizing Mahendra Gandhi's properties. He concluded that even on a bare reading of the complaint, the ingredients of Sections 467, 468, 471, and 120-B of the Indian Penal Code are not satisfied. As a result, he contends that the continuation of proceedings would amount to an abuse of the legal process, leading to harassment, citing the judgment of the Hon'ble Supreme Court in the case of State of Page 13 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined Haryana V/s Bhajan Lal (AIR 1992 SC 604). Consequently, he requested that the present application be allowed.
5. In contrast, Mr. A.M. Parekh, the learned advocate representing respondent No.1 (complainant), counters the argument by stating that upon a bare reading of the complaint and considering the fact that charge-sheet has already been filed, it becomes evident that a prima facie case has been established against the present applicant. He further emphasizes that the investigating agency has uncovered material, particularly noting that the temple priest (Pujari) had provided a statement to the Investigating Officer, indicating that no marriage had been conducted by him. Instead, someone had fraudulently obtained documents from him falsely claiming such a marriage. Mr. Parekh asserts that the applicant should proceed with the trial proceedings now that the charge-sheet has been filed based on the complaint. He contends that there is no basis to quash the complaint using the powers conferred by Section 482 of the Criminal Procedure Code, 1973. Page 14 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023
NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined
6. Mr. Chintan Dave, the learned Additional Public Prosecutor (APP) representing respondent No.1 (State), directed my attention to the report received from the concerned Police Station, as well as a copy of the charge-sheet. He points out to the fact that the temple priest's statement is included, indicating that no marriage had been conducted by him. Based on this, he contends that the complainant's version is corroborated by the priest's statement, thus establishing a prima facie case. He asserts that there is substantial evidence against the applicant to proceed with the legal proceedings in accordance with the complaint and the subsequent filing of the charge-sheet. As such, he urges against exercising the powers granted by Section 482 of the Criminal Procedure Code, 1973, which should be exercised very sparingly, referencing various judgments from the Hon'ble Apex Court.
7.1 I have considered the rival submissions made at the bar. I have also considered the material produced on record.
7.2 It is required to refer the provisions of Sections Page 15 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined 467, 468, 471, and 120-B of the Indian Penal Code, as under:
"Section 467 in The Indian Penal Code:-
467. Forgery of valuable security, will, etc.--Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Section 468 in The Indian Penal Code:-
468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Page 16 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023
NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined Section 471 in The Indian Penal Code:-
471. Using as genuine a forged 1[document or electronic record].--Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record.
Section 120B in The Indian Penal Code:-
120B. Punishment of criminal conspiracy.--
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
7.3 Upon a bare reading of the contents of the First Information Report (F.I.R.), it is evident that the Page 17 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined complainant's mother-in-law has lodged the complaint, alleging that the wife of the deceased fraudulently acquired the invested amounts, along with sums present in various bank accounts, investments such as Public Provident Fund (PPF), Life Insurance Corporation (LIC), and even attempted to wrongfully alienate immovable property by using a deceitful marriage registration document. The complaint asserts that no marriage took place between the complainant's son and the wife named as an accused in the complaint. This assertion lacks support, other than the statement of the now-deceased priest.
7.4 However, considering the documentary evidence on record, including (i) photographs from the wedding, which depict the presence of the complainant herself, (ii) the marriage registration certificate issued by the Sub- Registrar, (iii) a certificate from the Civil Surgeon affirming the mental fitness of the deceased, (iv) the registered Will executed by the deceased in favour of the present applicant (his wife), and also taking into account the order passed by the Co-ordinate Bench of this Court on 1.12.2015 in Special Criminal Application No.7078 of Page 18 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined 2020, it becomes evident that the applicant is the legally wedded wife of the deceased husband. Furthermore, the transaction entered into by the applicant with Life Insurance Corporation (LIC), Public Provident Fund (PPF), and bank accounts is based on the Will in her favor. It is also evident that the marriage was officially registered at the Sub-Registrar's Office during the relevant period. It is noteworthy that the complainant herself was present during the marriage of her son with the present applicant, and this is corroborated by photographs as well. Additionally, the conduct of the complainant, particularly in light of the prior proceeding where a Co-ordinate Bench of this Court observed an instance of her son's illegal confinement orchestrated by the complainant and others, speaks volumes in itself. 7.5 Considering these aspects, it is evident that the prima facie elements of the alleged offenses in the complaint are not established, and the complaint itself appears to be filed with malicious intent and an ulterior motive to harass the present applicant. 7.6 Further, it will also be fruitful to mention the Page 19 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined judgment of the Hon'ble Supreme Court in the case of State of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.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 sec.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.
(1) Where the allegations made in the first Page 20 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined 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 investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.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 sec.156(2) of the Code.
Page 21 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023
NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined (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."
7.7 It is also relevant to refer to the judgment of the Hon'ble Apex Court in the case of Inder Mohan Goswami and Another versus State of Uttaranchal reported in Page 22 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under :
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 CrPC can be exercised:
[(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.]
24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Page 23 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023
NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."
7.8 It is also relevant to refer the judgment of the Hon'ble Apex Court in the case of K. Jagdish versus Udaya Kumar G.S. & Another reported in (2020) 14 SCC 552, more specifically, paragraphs 9 to 13 are relevant, as under:
"9. In Pratibha Rani v. Suraj Kumar and another1this Court summed up the distinction between the two remedies as under:
"21. ............ There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence Page 24 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined against a person, property or the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under Section 406 IPC or render the ingredients of Section 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law."
10. In Rajesh Bajaj v. State NCT of Delhi and others this Court observed:
"10. It may be that the facts narrated in the Page 25 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined present complaint would as well reveal a commercial transaction or 1 (1985) 2 SCC 370 2 (1999) 3 SCC 258 money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions.
One of the illustrations set out under Section 415 of the Indian Penal Code [Illustration f] is worthy of notice now:
"(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats."
11. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discerning whether there was commission of offence or not. The complainant has stated in the body of the complaint that he was induced to believe that the respondent would honour payment on receipt of invoices, and that the complainant realised later that the intentions of the Page 26 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined respondent were not clear. He also mentioned that the respondent after receiving the goods had sold them to others and still he did not pay the money. Such averments would prima facie make out a case for investigation by the authorities.
12. The High Court seems to have adopted a strictly hypertechnical approach and sieved the complaint through a colander of finest gauzes for testing the ingredients under Section 415 IPC. Such an endeavour may be justified during trial, but certainly not during the stage of investigation. At any rate, it is too premature a stage for the High Court to step in and stall the investigation by declaring that it is a commercial transaction simpliciter wherein no semblance of criminal offence is involved."
11. The aforesaid view was reiterated in Kamladevi Agarwal v. State of West Bengal and others as under:
"9. Criminal prosecution cannot be thwarted at the initial stage merely because civil proceedings are also pending. After referring to judgments in State of Haryana v. Bhajan Lal and Rajesh Bajaj v. State NCT of Delhi2 this Court in 3 (2002) 1 SCC 555 4 1992 Supp (1) SCC 335 Trisuns Page 27 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined Chemical Industry v. Rajesh Agarwal5 held: (SCC p. 690, paras 7-8) "7. Time and again this Court has been pointing out that quashing of FIR or a complaint in exercise of the inherent powers of the High Court should be limited to very extreme exceptions (vide State of Haryana v. Bhajan Lal4 and Rajesh Bajaj v. State NCT of Delhi5).
8. In the last referred case this Court also pointed out that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. We quote the following observations: (SCC p. 263, para 10) '10. It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions."
After referring to various decisions it was finally concluded as under:
Page 28 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023
NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined "17. In view of the preponderance of authorities to the contrary, we are satisfied that the High Court was not justified in quashing the proceedings initiated by the appellant against the respondents. We are also not impressed by the argument that as the civil suit was pending in the High Court, the Magistrate was not justified to proceed with the criminal case either in law or on the basis of propriety. Criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings."
12. In R. Kalyani v. Janak C. Mehta and others6 this Court culled out propositions concerning interference under Section 482 of the Code as under:
"15. Propositions of law which emerge from the said decisions are:
(1) The High Court ordinarily would not exercise its inherent 5 (1999) 8 SCC 686 6 (2009) 1 SCC 516 jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if Page 29 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."
7.9 Therefore, I am of the opinion that this is a fit case, which warrants the Court to judiciously invoke its inherent discretion in order to prevent the abuse of the process of law, more particularly, when an ample amount of documentary evidence is available on record, which substantiates the Court's view that no prima facie offense has been established against the accused person. This decision aligns with the judgment of the judgment Page 30 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023 NEUTRAL CITATION R/CR.MA/13325/2016 JUDGMENT DATED: 22/08/2023 undefined of the Hon'ble Supreme Court in the case of Bhajan Lal (supra).
10. Accordingly, the present application is allowed.
11. The impugned F.I.R. C.R. No.I 28 of 2016 lodged by the respondent No.2 under sections 467, 468, 471 and 120(B) of the Indian Penal Code with Gandevi Police Station, District - Navsari as well as consequential proceedings, if any, arising out of the impugned F.I.R. is quashed and set aside.
Rule is made absolute.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 31 of 31 Downloaded on : Sun Sep 17 02:06:26 IST 2023