Gujarat High Court
Tejas S/O Rajendraprasad Fudnawala vs State Of Gujarat on 7 September, 2021
Author: B.N. Karia
Bench: B.N. Karia
R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1613 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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TEJAS S/O RAJENDRAPRASAD FUDNAWALA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR MUKESH KUMAR SUDARSHAN(10268) for the Applicant(s) No. 1
MS HETU M SUDARSHAN(10051) for the Applicant(s) No. 1
NARENDRA K AMIN(9506) for the Applicant(s) No. 1
MR DHRUV K DAVE(6928) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 07/09/2021
CAV JUDGMENT
1. By preferring this petition under Article 226 of the Constitution of India and under Section 482 of Code of Criminal Procedure, 1973, the applicant has requested to quash and set aside the complaint being I-C.R.No.3 of 2012 registered with Ahmedabad City, DCB Police Station for the Page 1 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 offence punishable under Sections 406, 420, 467, 468, 471 and 120(b) of the IPC and consequential proceedings thereof.
2. The brief facts leading to this petition are as under :-
2.1 That, the accused persons gave false promise that if the complainant makes investment in the company, then they would get 11% to 17% interest every month and hence, relying on such talks, the complainant and his family members got induced and lured to open four accounts, wherein huge sums of money, as indicted in the complaint, were deposited. The complainant asked for the account statement and other details, which were not provided initially. Thereafter, three statements were received by post on 5.7.2011 which were having transactions which were not as per instructions of the complainant. Balance was not maintained, loss was shown and brokerage was debited. That, some amounts paid by Demand Drafts were deposited in the accounts of the co-
accused Vipul Mishra and accounts of relatives of said accused Vipul Mishra. The applicant was initially called for inquiry for investigation and his statement was also recorded and ultimately, applicant came to be arrested on 3.2.2012.
3. Heard learned advocate Mr. Mukesh Kumar Sudarshan appearing for the applicant; learned advocate Mr. Dhruv K.Dave appearing for the respondent No.2 and learned APP Mr. H.K.Patel for the respondent No.1-State.
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4. Learned advocate Mr. Mukesh Kumar Sudarshan appearing for the applicant submits that the applicant is innocent person and he has not committed any offence as alleged in the complaint. That, the applicant is falsely roped in the FIR by the complainant with an ulterior motive to exert pressure on the applicant, and thereby, extort money from the Company in which, the applicant is working. That, the applicant has not induced the complainant and has not forged the signatures as stated in the FIR. That, the applicant nor any of the employees of the Company of the applicant has derived any monetary benefit from the alleged deeds and/or misdeeds of other accused persons. That, the complainant has done the transactions through the authorized person/s whose role would be similar to that of an agent or a sub-broker and the trading has been done by the said Authorized Person for and on behalf of the respondents. This trading so done by the authorized person apparently has caused a loss, and therefore, the FIR was filed. The complainant was aware of the actions and transaction done through such person which is not the applicant. That, the record of case would indicate that the regular transactions were apparently done under the instructions of the complainant and the complainant was aware of the same since margin money would have been debited or credited. That, the entire FIR is seen to be concocted with a malafide intention with no truth in the same solely with a dishonest purpose to avoid having to bear the loss and shift the burden of the loss suffered in their speculative trading on the Company of the applicant and satisfy the greed of the complainant. That, if the statement of Page 3 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 account is perused, it would indicate that the complainant has not deposited/paid/remitted more than Rs.80.00 Lakhs in their trading account maintained with the applicant's Company. That, for the complaint filed by the complainant himself before the MCX (Multi Commodity Exchange), it can be seen that the complainants' version is apparently completely different. That, there is no material to remotely indicate that the applicant was involved in any wrong doing and or derived any illegal monetary benefit from the alleged act. Hence, it was requested by learned advocate for the applicant to allow this application by quashing and setting aside the impugned complaint.
6. Per contra learned advocate Mr. Dhruv K.Dave appearing for the respondent No.2 has objected the submissions made by learned advocate for the applicant and submitted that this petition is not maintainable for the reason that it involves disputed question of facts. That, the applicant has now approached this Court with an improvise version by way of this petition. Thus, there are no new grounds, facts and circumstances so as to rouse any new issues by way of this petition for no new cause has arisen. That, the applicant after thought has filed this petition for quashing of the FIR i.e. CR No.I-3 of 2012 registered with the Crime Branch, Ahmedabad for which this Court was pleased to observe that the charge- sheet is filed. The applicant unconditionally withdrawn the earlier petition, and therefore, the present petition is not maintainable. That, the Reliance Commodities Ltd. ( in short "RCL") through the applicant Mr. Tejas R.Fudnawala filed Page 4 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 Special Civil Suit No. 172 of 2014 for recovery of Rs.1,00,00,000 (Rupees One Crore only) before the City Civil Court, Ahmedabad and the learned City Civil Judge was pleased to reject ad-interim and another reliefs to the applicant and the suit is pending before the City Civil Court. That, the applicant either inadvertently or deliberately has failed to state material facts involved in the captioned petition and has suppressed obstructive facts and no reliefs as prayed for can be granted to the applicant. That, the applicant had earlier also preferred Special Criminal Application No. 535 of 2012 with the same prayers as prayed in the present petition. The said petition was withdrawn unconditionally. The applicant now has approached this Court with a same prayer and hence, on the above mentioned facts, this petition may not be entertained. That, the applicant and other accused persons are having modus operandi of doing illegal acts by cheating and have committed fraud with many innocent people by misusing their investments with the RCL. That, the applicant is quantified by the prosecution for an affidavit filed before the Session Court. It is apparent from the said affidavit that the applicant herein has a major role in the conspiracy hatched against the respondent No.2 and others. That, the applicant with other accused had used a false PAN card in the name of the deponent and other account holders. The details of all the transactions where such false and forged documents were used by the applicant in the name of the deponent and other account holder. That,the applicant and other accused have in collusion created false accounts in the name of the respondent No.2 and other account holders. The applicant Page 5 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 and other employees, by creating the false accounts in the name of respondent and others, have executed a multiple trade transactions by giving false assurance to the deponent and other account holders. That, the applicant took the Demand Drafts and cheques from the deponent for the investments, but the said amount which was never invested by the applicant and other accused. That, the applicant is the direct beneficiary of the fraud committed upon the deponent and others, and therefore, the applicant is liable personally as well as an employee of the RCL. That, the crime has been committed by the applicant and others working under the head of RCL and therefore, it was requested by learned advocate for the respondent No.2 to dismiss the present application. Learned advocate for the respondent no.2, in support of his arguments, has placed reliance in the following judgments:
(i) Central Bureau of Investigation Vs. Maninder Singh reported 2016(1) SCC 389;
(ii) State of Tamil Nadu Vs. R. Vasanthi Stanley and another reported in (2016) 1 SCC 376;
(iii) Parbatbhai Aahir Vs. State of Gujarat and another reported in (2017) 9 SCC 641;
7. Learned APP for the respondent-State submitted that regard being had to the facts and circumstances of the case, it was absolutely in apposite on the part of this Court to quash the criminal proceedings as the allegation is made by the prosecution pertain to cheat and misappropriate the amount Page 6 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 invested by the respondent no.2 and the said amount was used for the personal benefit by the applicant. It is further submitted that after receiving huge amount from the respondent no.2/complainant, forged documents were created by the applicant in collusion with the other accused. That without consent of the complainant, this amount was transferred in another account by the applicant. It is further urged that even if there are settlements and dues have been cleared, in such type of cases, the accused cannot be absolved from the criminal culpability without the trial taking place. Hence, it was requested by learned APP for the respondent- State to dismiss the present petition.
8. Having heard learned advocates for the respective parties, learned APP for the respondent-State and going through the allegations made by the respondent no.2 in his complaint lodged being I-C.R.No.3 of 2012 registered with D.C.B. - Crime- Ahmedabad City Police Station on 30.01.2012, it appears that the accused persons gave false promise that if the complainant would make investment in the company, then they would get 11 to 17% interest every month and hence, relying on such talks, the complainant and his family members got induced and lured to open four accounts, wherein huge sums of money as indicated in the complaint were deposited. It appears from the record that on first round of litigation, the applicant has preferred one Special Criminal Application No.535 of 2012 as well as Criminal Misc. Application No.10176 of 2012. This Court (Coram: Hon'ble Mr. Justice M.D. Shah) on 14.03.2014 was pleased to pass an Page 7 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 order which is as under:
"As the complainant does not agree for settlement, learned advocate for the applicant seeks permission to withdraw present application at this stage. Permission is granted. Application is disposed of as withdrawn. Notice is discharged. Interim relief granted earlier, if any, stands vacated."
9. On earlier occasion, vide order passed dated 03.02.2014, it was observed in the same petition preferred by the applicant that the chargesheet is filed in this case before the Trial Court. In Criminal Misc. Application No.10176 of 2012 in Special Criminal Application No.535 of 2012, this Court (Coram:
Hon'ble Mr. Justice Rajesh H. Shukla) was pleased to pass an order on 19.07.2012 as under:
"1. Heard Learned advocate Mr. P.R. Abhichandani for the petitioner, learned advocate Ms.Snehal Patel for Respondent No.2-original complainant and learned APP Mr.H.L. Jani for Respondent No.1-State of Gujarat.
2. Learned advocate Mr.Abhichandani does not press this application at this stage with a view to pursue the other remedy and also without prejudice to the rights and contentions of the parties. Permission, as prayed for, is granted. The present Criminal Misc. Application No.10176/2012 in Special Criminal Application No.535/2012 stands disposed of as not pressed at this stage."Page 8 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022
R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021
10. In light the above mentioned order on 03.02.2014, the applicant unconditionally withdrawn Special Criminal Application No.535 of 2012. The necessary permission for withdrawal of the said petition unconditionally was granted by this Court on 14.03.2014. On the same ground, the applicant seeks to quash the same FIR which was earlier withdrawn unconditionally on 14.03.2014. With an improvise version, the applicant has approached this Court by way of this petition without any new grounds, facts or circumstances. It also appears from the record that Reliance Commodities Limited (RCL) through the applicant Mr. Tejas R. Fudnawala filed Special Civil Suit No.172 of 2014 for recovery of Rs.1,00,00,000/- (Rupees One Crore) before the City Civil Court, Ahmedabad. Interim relief prayed by the plaintiff/applicant was rejected by the Court and in the said suit, it was ordered to either side or the parties i.e. Commercial Civil Suit No.34 of 2016 and Commercial Civil Suit No.355 of 2016 (Old Civil Suit No.172 of 2017) to approach rather seek recourse to the arbitration as per Bye- laws No.15.4 of the Bye-laws of Multi Commodities Exchange of India Ltd. (MCX) vide order dated 31.03.2017. Civil Suit No.1572 of 2014 was preferred by the respondent no.2 claiming an amount of Rs.3,98,45,530/- (Three Crores Ninety Eight Lakhs Forty Five Thousand and Five Hundred and Thirty only) from the RCL and other subsidiary company of the RCL. It appears that on 13.02.2012, agreement was executed between the applicant and the respondent no.2 for settlement of the dispute. The applicant is working as Product Manager of RCL having his office at Reliance Commodities Page 9 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 Limited, Satellite, Ahmedabad. The respondent no.2 herein, according to him, consented for receipt of the marginal money excluding huge losses incurred in the investment which was not included in the marginal money and the authorized person of the RCL has agreed to put forth the claim of remaining amount due towards the profits which the RCL and other employees had earned by using the investment of the respondent herein. According to the respondent no.2, the petitioner and other accused have made to appear by way of inducement that systematic long term investment in Gold and Silver. The respondent - Company and other account holders would earn profits and interest out of the investments. From the contents of the complaint, it appears that the respondent no.2 along with other family members have paid Rs.93,71,400/- in total to the RCL through the applicant herein. The said amount was paid through the cheques and the demand draft and other mode of services from 07.04.2011 to 28.06.2011 respectively. So-called agreement was executed between the parties and RCL has only paid marginal money by way of agreement. According to the respondent no.2, the petitioner and other accused persons are in modus operandi of doing acts by cheating and have committed fraud with many innocent people by misusing their investments with the RCL. The said RCL entered into settlement with the aggrieved person. The respondent no.2 and other members have issued the cheques in favour of the RCL upto 28.06.2011. The said cheques were accepted by the applicant and withheld without depositing the same. Thereafter, the said cheques were deposited in the month of July-2011 so as to manipulate the Page 10 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 accounts of the respondent no.2 and other. The said cheques were used for his own use. It appears that at the time of receiving the marginal money, the representative of RCL had agreed to give details of all false transactions and forging of documents which the applicant and other accused have entered and executed. After receiving the details and multiple transactions which were taken from the representative of RCL, it was found that the said transaction in the account of the respondent no.2 was without any authority and by creating and using forged documents in the name of the respondent no.2 and others, the applicant and other accused have pooled multiple trading on the accounts of the respondent no.2 and others. Neither any authority nor any consent was given by the respondent no.2 or others for entering multiple transactions in the accounts of the respondent no.2 and others. The transactions given by the authorized person of the RCL were contradictory and inconsistent to each other, and therefore, it raises a natural doubt of the role of the RCL even after the so-called agreement on 13.02.2012. According to the respondent no.2, the authorized person of RCL has not only misled the respondent no.2 and others by giving false details and have suppressed the material facts with MCX and FMC with whom the RCL is registered and accountable for transactions on day-to-day basis. The details of the transactions of the respondent no.2 and others were suppressed and withheld by the authorized person of the RCL till the execution of the agreement dated 13.02.2012. The respondent no.2, on having knowledge of the said fraud intimated the RCL and the applicant by way of letters, emails Page 11 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 but no action was taken against the applicant of the said fraud by RCL and the respondent no.2 approached MCX and FMC by way of complaint dated 09.11.2011. It also appears that the present applicant and other co-accused have in collusion created false accounts in the name of the respondent no.2 and other account holders. They have executed a multiple trade transactions by giving false assurance to the respondent no.2 and other account holders and the applicant and other employees have entered trade transactions of very huge amount. The cheques received by the present applicant from the respondent no.2 were credited in the personal accounts or the accused persons and unknown persons to the respondent no.2. It also appears that the applicant is a Direct Beneficiary of the fraud committed against the respondent no.2 and others and therefore, the applicant would be liable personally for the act committed.
11. The Hon'ble Supreme Court, in the case of Central Bureau of Investigation Vs. Maninder Singh (supra) has observed in Paragraph Nos.16 and 17 as under:
"16. The allegation against the respondent is "forgery" for the purpose of cheating and use of forged documents as genuine in order to embezzle the public money. After facing such serious charges of forgery, the respondent wants the proceedings to be quashed on account of settlement with the bank. The development in means of communication, science and technology, etc. has led to an enormous increase in economic crimes viz. Phishing, ATM frauds, etc., which are being committed by Page 12 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 intelligent but devious individuals involving huge sums of public or government money. These are actually public wrongs or crimes committed against society and the gravity and magnitude attached to these offences is concentrated at the public at large.
17. The inherent power of the High Court under Section 482 Cr.PC should be sparingly used. Only when the Court comes to the conclusion that the Court if such power is not exercised, the Court would quash the proceedings. In economic offences the Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned was well planned and was committed with a deliberate design with an eye on personal profit regardless of consequence to the society at large. To quash the proceedings merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy. If the prosecutions against the economic offenders are not allowed to continue, the entire community is aggrieved."
12. The Hon'ble Supreme Court, in the case of State of Tamil Nadu Vs. R. Vasanthi Stanley and another (supra) has observed in Paragraph No.15 as under:
"15. As far as the load on the criminal justice dispensation system is concerned it has an insegregable nexus with speedy trial. A grave criminal offence or serious economic Page 13 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 offence or for that matter the offence that has the potentiality to create a dent in the financial health of the intitutions, is not to be quashed on the ground that there is delay i trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system. That can never be an acceptable principle or parameter, for that would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrows of the unscrupulous litigations. Such a situation should never be conceived of."
13. The Hon'ble Supreme Court, in the case of Parbatbhai Aahir Vs. State of Gujarat and another (supra) has observed that the board principles which emerges from the precedents on the subject were summarized in the following propositions::
"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions :
16.1 Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.
16.2 The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of Page 14 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973.
The power to quash under Section 482 is attracted even if the offence is non-compoundable 16.3 In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
16.4 While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court.
16.5 The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.
16.6 In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the Page 15 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
16.7 As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned.
16.8 Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute.
16.9 In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10 There is yet an exception to the principle set out in propositions 16.8 and 16.9 above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or Page 16 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022 R/SCR.A/1613/2014 CAV JUDGMENT DATED: 07/09/2021 economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
14. In the present case, allegation made in the FIR would demonstrate, is not merely one involving a private dispute over a money transaction between two contesting parties. The case involves allegations of forgery, cheating and fabrication of documents as well as misappropriation of money, utilization of fabricated documents to use money for personal purpose and deprivation of the complainant of this interest on the basis of a fabricated documents. If the allegations in the FIR are construed as they stand, it is evident that they implicate serious offences having a bearing on a vital societal interest in prosecuting serious crime. In such circumstances, this Court cannot accept the prayer to quash the FIR being I-C.R.No.3 of 2012, registered with DCB Police Station, Ahmedabad City, Ahmedabad for the offence punishable under Sections 406, 420, 467, 468, 471, 120(b) of the Indian Penal Code.
15. For the above reasons, this Court does not find any merits in the petition. Accordingly, present petition deserves to be dismissed and the same is dismissed. Rule is discharged. Interim relief, if any granted earlier, stands vacated forthwith.
(B.N. KARIA, J) rakesh/ Page 17 of 17 Downloaded on : Sun Jan 16 12:51:43 IST 2022