Gujarat High Court
Sureshbhai Sarabhai Patel vs State Of Gujarat on 9 October, 2023
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
R/CR.MA/8169/2022 ORDER DATED: 09/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 8169 of 2022
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SURESHBHAI SARABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR M N SHAIKH(11323) for the Applicant(s) No. 1,2,3,4
MR VAIBHAV N SHETH(5337) for the Respondent(s) No. 2
MS. ASHMITA PATEL, APP, for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 09/10/2023
ORAL ORDER
[1] This application is filed by the applicants for following reliefs:-
"(B) THIS HON'BLE COURT MAY BE PLEASED TO pass appropriate order/s in exercise of powers under the provision of Section 482 of Code of Criminal Procedure, 1973 and be pleased to pass appropriate order/s, quashing and setting aside the impugned the FIR registered being CR.No.11204006220003 of 2022 registered with ANTARSUBHA Police Station and Criminal Case No.546 of 2022, pending before the court of learned 2-addl. sr.civil judge & A.C.M.J. Taluka court: kapadvan, District: Kheda qua the applicants alongwith all consequential and incidental proceedings against the present applicants herein in the interest of Justice."
[2] Learned advocate for the applicants submits that it is only to avoid repaying the loan amount that the present criminal case is foisted upon the applicants. Learned advocate for the applicants has drawn attention of this Court to an agreement which was entered into between the applicants' family members and the complainant, wherein out of goodwill and with an intention to help the family of the complainant Page 1 of 5 Downloaded on : Mon Oct 09 20:47:16 IST 2023 NEUTRAL CITATION R/CR.MA/8169/2022 ORDER DATED: 09/10/2023 undefined under an agreement, an amount of Rs.32,50,000/- was paid to the complainant and the complainant's family had undertaken to return it back within a period of six months. Learned advocate submitted that it is pertinent to notice that in the agreement there is no mention of any loan being extended nor is there any mention of recovery of the amount alongwith any rate of interest and therefore, as the family members knew each other from beginning with a view to help, this agreement was entered into and the amount was paid.
[2.1] It is submitted that towards the security, the applicants were also given post dated cheques of various amounts, which are blank, but because of the relation between them, the applicants have not deposited such security cheques. It is submitted that upon the instructions of the complainant's family, one cheque was deposited however, the same was dishonoured. He drew attention of this Court to the statement of the account of the Ahmedabad District Co-operative Bank, Kathdwada referring to the cheque dishonour advise. It is submitted that despite this, the applicants have not even initiated any proceedings under the provisions of Negotiable Instrument Act which indicates that the applicants are not involved in any money lending activities covered under the provisions of Gujarat Money Lenders Act, 2011.
[2.2] Learned advocate for the applicants has drawn attention of this Court to the allegations made in the FIR so far as the applicants are concerned, there is no allegation against the applicants which can be covered under the provisions of Sections 504, 506 of the IPC and therefore, any proceedings Page 2 of 5 Downloaded on : Mon Oct 09 20:47:16 IST 2023 NEUTRAL CITATION R/CR.MA/8169/2022 ORDER DATED: 09/10/2023 undefined initiated against the applicants in this context would be illegal.
[2.3] It is submitted that the complainant appears to have consumed poison for which the treatment was taken however, the only document which is placed on record regarding treatment is the medical certificate alongwith the charge-sheet papers and such certificate is not reliable, particularly, it is dated 03.03.2022, whereas the charge-sheet in connection with the offense was filed before the Judicial Magistrate First Class, Kapadvanj on 02.03.2022 between 1:00 PM to 2:00 PM and therefore, apparently, the document which is the medical certificate dated 03.03.2022 could not have been part of charge-sheet. Therefore, the investigation itself is doubtful.
[2.4] Learned advocate for the applicants lastly submitted that even if the dying declaration recorded during the course of investigation which is the part of the charge-sheet papers is taken into consideration, then also the combined reading of the allegations made in the FIR as well as in the dying declaration, the main allegation which would attract the provisions of the IPC offenses are towards one Ramsinh Udesinh Sodha, who is also an accused, but not applicant before this Court and that the incident of a consuming poison is preceded by alleged altercation with such Ramsinh Sodha from whom also the family of the complainant had received loan. The dying declaration simply indicates that insofar the applicants are concerned, from them also the family of the complainant had received some loan, beyond that there is no allegation which will attract the provisions of Sections 504, 506 of IPC and consequently, Section 507 of IPC. Learned advocate also submitted that as the family members of the applicants Page 3 of 5 Downloaded on : Mon Oct 09 20:47:16 IST 2023 NEUTRAL CITATION R/CR.MA/8169/2022 ORDER DATED: 09/10/2023 undefined and that of the complainant knew each other from beginning had entered into an agreement on the basis of which, the amount was paid, that too without any interest and that there is no other incident wherein the applicants would have lent any amount to any other person, there is no question of the applicants indulging in the business of money lending and therefore, the provisions of Gujarat Money Lenders Act could not be attracted.
[2.5] Leaned advocate therefore, submitted that the prima- facie case is made out in favour of the applicants as there is no case made out even from the allegations of the witnesses or documents of charge-sheet.
[3] At this stage, learned Additional Public Prosecutor has submitted that charge-sheet is already filed and summons have been issued to the accused persons and therefore, trial is on the verge of commencement.
[4] Learned advocate therefore, submitted that at the relevant time when the application came to be filed in the year 2022 after filing of the charge-sheet there was no progress. It is also submitted that the applicants have also filed an application for discharge as, according to the applicants, no charge can be framed against the applicants on the basis of evidence in support of the charge-sheet.
[5] In view of the aforesaid development, the Court directs that the discharge application filed by the applicants be heard and finally disposed of within a period of one month from today. The parties before the Court have undertaken to co- operate with the hearing and disposal of the discharge Page 4 of 5 Downloaded on : Mon Oct 09 20:47:16 IST 2023 NEUTRAL CITATION R/CR.MA/8169/2022 ORDER DATED: 09/10/2023 undefined application. The Court further directs that upon the outcome of the discharge application, the trial in connection with the C.R. in question, if required to be proceeded against any of the accused persons be concluded within a period of eight months thereof.
[6] With the aforesaid direction, the application stands disposed of.
(A.Y. KOGJE, J) SIDDHARTH Page 5 of 5 Downloaded on : Mon Oct 09 20:47:16 IST 2023