Gujarat High Court
Paragbhai Rajnikantbhai Dave vs State Of Gujarat on 9 September, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/12822/2018 JUDGMENT DATED: 09/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 12822 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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PARAGBHAI RAJNIKANTBHAI DAVE
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR YASH G PATEL (9316) for the Applicant(s) No. 1
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 09/09/2021
ORAL JUDGMENT
1. By way of this application, the applicant has prayed to quash and set aside the First Information Report being C.R. No. I - 120 of 2018 registered with Gandhinagar Sector-7 Police Station, Gandhinagar for Page 1 of 7 Downloaded on : Fri Oct 08 09:15:16 IST 2021 R/CR.MA/12822/2018 JUDGMENT DATED: 09/09/2021 offences punishable under Sections 406 and 420 of IPC and all consequential proceedings initiated in pursuance thereof.
2. Learned advocate Mr. Yash Patel appearing for the applicant submitted that the impugned complaint came to be filed by one Bharatsinh Ratansinh Parmar, an employee of respondent No.3- Department. According to the complaint, a Tender was issued on 11.10.2017 by the Department of Tribal Development, for which the applicant's Company was eligible for bidding. One of the conditions of Tender was to deposit Demand Draft of Rs.3,00,000/- towards Earnest Money Deposit (EMD). It is stated by learned advocate for the applicant that the applicant's Company submitted Demand Draft of the requisite amount with the Office of the respondent-Department on 24.11.2017. When the technical bid was opened, two agencies were found to have submitted the bid and the higher one was approved by the respondent- Department. It is stated that the project for which the Tender was issued, required the joint efforts of three different Government Departments, i.e. Department of Tribal Development, Department of Land Revenue Record and the Department of Forests. A meeting was held on 09.02.2018 between the applicant's Company, representatives of the Department concerned and representative of the Agency which was successful in the bid and it was decided that the said three Departments would appoint dedicated staff and provide all necessary support to complete the project. The Letter of Intent was forwarded on 08.03.2018, which was received by the applicant's Company on 13.05.2018. It is contended that till that time, no dedicated staff was provided. No Letter of Acceptance was sent to the applicant's Company nor any agreement as regards the Letter of Intent was executed. It was submitted that due to the negligence on the part of the Department concerned, the Demand Draft which was submitted with Page 2 of 7 Downloaded on : Fri Oct 08 09:15:16 IST 2021 R/CR.MA/12822/2018 JUDGMENT DATED: 09/09/2021 the Office of the Department concerned in the month of November 2017, was never deposited by the Department concerned and therefore, the Demand Draft lost its validity in January 2018. The Letter of Intent was issued on 08.03.2018 and a Notice was issued on 06.03.2018 to the applicant's Company to furnish a fresh Demand Draft. It is stated by learned advocate Mr. Patel that both the letters were received on 13.03.2018. In spite of that fact and though the Letter of Intent was issued on 08.03.2018, legal Notices dated 06.03.2018, 14.03.2018, 22.03.2018 and 13.04.2018 were issued by the Department concerned to the applicant to re-submit a new Demand Draft of the requisite amount. Appropriate reply was sent by the applicant's Company vide letter dated 24.03.2018 informing the Department concerned about the problems being faced by the applicant's Company in completing the tender work.
2.1 It is stated by the learned advocate that condition No. 13.5, as reflected in the Notification dated 11.10.2017, provides that if the Company that has received the tender, fails to complete the same, the deposited amount would get forfeited. It is submitted that the applicant's Company had submitted a renewed Demand Draft on 05.05.2018. He stated that though the applicant had often visited the Office of the Department concerned for depositing the Demand Draft, it was not accepted by the staff and that with a mala fide intention, a complaint came to be filed against the applicant herein on 19.05.2018. It is submitted that the Department concerned was aware of the fact that the Demand Draft had been renewed and was also aware about the intention of the applicant to submit such renewed Demand Draft. In spite of the said fact, with false and frivolous allegations, the impugned complaint has been filed with a view to wreak vengeance. It is submitted that had the Department concerned filed a civil suit, the applicant would have Page 3 of 7 Downloaded on : Fri Oct 08 09:15:16 IST 2021 R/CR.MA/12822/2018 JUDGMENT DATED: 09/09/2021 been in a better position to defend the case and could have high-lighted the faults of the Department, which had put the applicant in a disadvantaged position. He further stated that the Department has adopted pressure tactics against the applicant by filing the impugned complaint and that the intention behind filing such complaint is to knock out the money of Three Lacs by compelling the applicant's Company to get it forfeited. It is stated that the applicant had bonafidely submitted before the Court below while pursuing his anticipatory bail that he was ready and willing to deposit the amount of Rs.3,00,000/- with the Department concerned. He submitted that as per his instructions, the said amount has also been deposited and therefore, the Court below may be directed to return the said amount to the applicant.
3. The report of the police along with necessary documents from the Office of the Department of Tribal Development are produced on record. The learned APP submitted that though the report states that the Demand Draft was re-validated, four different legal Notices were issued since it was a case of cheating. She stated that it becomes clear by way of the notices that the first Demand Draft had been deposited but the three months' validity of the Demand Draft got exhausted and therefore, on 06.03.2018, the applicant's Company was informed to re-validate the Demand Draft. On 14.03.2018, the Demand Draft was returned to the applicant with a condition to submit a re-validated Demand Draft. It is stated that by letters dated 22.03.2018 and 31.03.2018, the applicant's Company was reminded of the above fact and even by a telephonic message, the applicant's Company was asked to deposit the re-validated Demand Draft. Learned APP referred to the letter dated 24.03.2018 where the applicant's Company had declared its incompetency to complete the work. She submitted that on account of breach of the tender Page 4 of 7 Downloaded on : Fri Oct 08 09:15:16 IST 2021 R/CR.MA/12822/2018 JUDGMENT DATED: 09/09/2021 conditions, the applicant's Company was asked to provide the Demand Draft towards the EMD though it was the successful bidder and by the Notices sent by the Department concerned, the applicant's Company was asked to deposit the Demand Draft within seven days and on its failure to make such deposit, it was considered to be a case of cheating and breach of the conditions of contract.
4. It is on record by way of the notices issued by the Department concerned to the applicant's Company that the Demand Draft was deposited within the stipulated time but as the validity period of the Demand Draft had expired, the applicant's Company was asked to get the Demand Draft re-validated by letter dated 06.03.2018. A reminder was sent for re-validating the Demand Draft and then by letter dated 24.03.2018, the applicant's Company had declared its inability to continue with the tender work. Learned advocate Mr. Patel submitted that the Letter of Intent is dated 08.03.2018 and prior to that the Demand Draft was already submitted. The applicant, being the Proprietor of M.K. Soil Testing Laboratory, was ready and willing to deposit the amount of Rs.3,00,000/-, which could have been forfeited in accordance with the provision made in condition No.13.5 of the tender conditions and along with the Demand Draft dated 05.05.2018 of Rs.3,00,000/-, the applicant had approached the Department with the renewed Demand Draft, which was not accepted. This shows that there was no intention on the part of the applicant to cheat or misappropriate the amount. The report of the police suggests that charge-sheet has been filed on 16.12.2018. It is also stated in the report that the owner of the Company, i.e. the applicant herein, has deposited the Demand Draft on 30.07.2021, which was drawn on 28.07.2021, with the Office of the Department concerned.
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5. In view of the fact that prior to the filing of the impugned complaint, the Demand Draft was submitted and as stated by learned advocate for the applicant the applicant had approached the Department concerned with the re-validated Demand Draft but it was not accepted. The applicant had shown his bona fides even before the impugned complaint was filed and by depositing the amount with the Department concerned on 30.07.2021, the applicant had further made his intention clear that he had approached the Department with all the bona fides and good faith and that there was no intention of cheating. The consequences of the communications between the Department and the applicant's Company suggest that the applicant could not take up the work, which was given to him, prior to which he had submitted the Demand Draft of the requisite amount. As the period of validity of the Demand Draft got over, the applicant was asked to re-validate the same. What was the reason for not taking up the work of the Department is known between the parties. Learned advocate for the applicant states that by letter dated 24.03.2018, the reasons were informed to the Department. In spite of that the applicant was always willing and had got the Demand Draft drawn for the EMD and ultimately, the amount has been deposited and accepted by the Department concerned.
6. The whole of the incident does not show any criminal intention of the applicant. Even if the complaint is taken in its entirety, the attempt and approach of the applicant gives benefit to him to show that he had no such criminal intention. Thus, the prima facie allegation would not constitute the offence to make out a case against the applicant as an accused. At the most, if there is any breach of the tender conditions, the Department could have proceeded against the applicant by way of a civil suit. It appears that internal rivalry within the Department had led to the Page 6 of 7 Downloaded on : Fri Oct 08 09:15:16 IST 2021 R/CR.MA/12822/2018 JUDGMENT DATED: 09/09/2021 filing of the impugned complaint, which, at the most, may be considered as wreaking vengeance or to spite the applicant due to some personal grudge.
7. In the result, the application is allowed. The impugned complaint being C.R. No. I - 120 of 2018 registered with Gandhinagar Sector-7 Police Station, Gandhinagar and all consequential proceedings initiated in pursuance thereof are quashed and set aside. As regards the amount, if any, deposited by the applicant with the Nazir of the Court below is concerned, the applicant shall be at liberty to file an application seeking return of the amount. It is observed that if any such application is made, the Court below is directed to consider and pass appropriate orders on such application, in accordance with law.
(GITA GOPI, J) PRAVIN KARUNAN Page 7 of 7 Downloaded on : Fri Oct 08 09:15:16 IST 2021