Gujarat High Court
Hemlataben Wd/O Vijaybhai Ganu vs State Of Gujarat on 2 July, 2025
NEUTRAL CITATION
R/CR.MA/16575/2014 ORDER DATED: 02/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 16575 of 2014
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HEMLATABEN WD/O VIJAYBHAI GANU
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NASIR SAIYED(6145) for the Applicant(s) No. 1
MR ADIL R MIRZA(2488) for the Respondent(s) No. 2
MR TIRTHRAJ PANDYA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 02/07/2025
ORAL ORDER
1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the petitioner has prayed for quashing and setting aside FIR being C.R.No.I - 103 of 2014 registered with Umargaon Police Station, for the offences punishable under Sections 406 and 420 of the IPC as well as all other consequential proceedings arising out of the aforesaid FIR qua the petitioner herein.
2. The facts and allegations leveled in the complaint, leading to the present petition, in a nut shell are to the effect that on 07.10.2014, the present respondent no. 2 original complainant lodged a written complaint before Umargaon Police Station inter-alia alleging that as such the complainant Page 1 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:56:29 IST 2025 NEUTRAL CITATION R/CR.MA/16575/2014 ORDER DATED: 02/07/2025 undefined was in need of land for building a house, she came to know about the land bearing Survey No. 102/paiki 2 of Mauje:
Gheemsakankariya, Taluka Umargaon, District: Valsad, which was under the joint ownership / possession of Sudhirbhai Dattatre Ganu, Vijaybhai Dattatre Ganu, Jayantiben Dattatre Ganu and Supriya Sudhirbhai Ganu and the husband of the petitioner agreed to sell the land of his share.
2.1 It is further narrated in the impugned complaint that accordingly, the present respondent no. 2 approached the petitioner' husband for purchasing 2 Gunthas of the said land for consideration of Rs. 80,000/- and resultantly the said agricultural land was alleged to have been purchased by the present respondent no. 2.
2.2 The complainant further alleges in the impugned complaint that as such husband of the present petitioner viz.
Vijaybhai Dattatre Ganu expired around 1 year back, the present petitioner had sold the said land to one Abdul Majeed Memon though it was very well in the knowledge of the present petitioner that her late husband had sold the said land to the complainant and the present petitioner had also signed upon the said agreement to sale and thus it is alleged that the present petitioner had committed the offence of cheating and breach of trust.
3. Learned advocate, Mr. Nasir Saiyed for the petitioner, seeking quashment of the questioned FIR would submit that it is a simple transaction of selling and purchasing land where according to the FIR, the complaint has paid Rs.80,000/-
Page 2 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:56:29 IST 2025NEUTRAL CITATION R/CR.MA/16575/2014 ORDER DATED: 02/07/2025 undefined towards the purchase of two guntha of land in the year 2006. However, since no registered sale deed was executed, the complainant filed questioned FIR under sections 406 and 420 of the IPC. He would further submit that simple civil transaction has been given colour of criminality and therefore, the same cannot be allowed to convert into FIR and therefore, learned advocate Mr. Saiyed submits that the petition may be allowed and the impugned FIR be quashed. He would further submit that plain reading of the FIR demosntrates essential ingredients of offence under sections 406 and 420 of the IPC i.e. Criminal breach of trust and cheating. He would further submit that in order to establish criminal breach of trust and cheating, the complainant prima facie is required to establish that it was an intention since the inception of the transaction, however, in the present case, no such intention either averred or established prima facie from bare reading of the FIR.
3.1 Upon such submission, learned advocate Mr. Saiyed prays to allow this petition and to quash the impugned FIR.
4. Per contra, learned advocate appearing for the private respondent would submit that the petitioner has suppressed material fact. He would further submit that identical FIR was lodged against the petitioner being I - C.R. No.104 of 2014 before Umargaon Police Station for the offences punishable under sections 406 and 420 of the IPC. He would further submit that against FIR being I - C.R. No.104 of 2014, the petitioner has filed Criminal Misc. Application No.16573 of 2014 for quashment of that FIR. However, the Coordinate Bench of this Court vide order dated 28.4.2023, declined to Page 3 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:56:29 IST 2025 NEUTRAL CITATION R/CR.MA/16575/2014 ORDER DATED: 02/07/2025 undefined quash the FIR. This fact has not been mentioned by the petitioner either in averment or during the argument, and therefore learned advocate appearing for the private respondent would submit that the FIR should not be quashed only on the ground of suppression of material fact. Moreover, he would submit that identical offences registered against the petitioner demonstrates that the petitioner is a habitual offender and used to make promises to various prospective purchaser, obtained money and then not executing sale deed. He would further submit that in such a way, the petitioner de- frauded innocent purchaser, which prima facie established that the petitioner's intention to defraud the complainant was since inception.
4.1 Mainly upon above submission, learned advocate for the private respondent requests to dismiss the petition.
5. Learned APP having placed on record report of the Police Inspector, Umargaon Police Station would submit that on 1.112023, after completing investigation, the investigating officer has filed the charge sheet against the accused in other offence and investigation in the present offence is going on. He would for the submit that the petitioner has withdrawn Criminal Misc. Application No.16573 of 2014 filed to quash the FIR being I - C.R. No.104 of 2014, the allegation in the present FIR is resembled with the allegation made in the FIR being I - C.R. No.104 of 2014.
5.1 Upon such submission, learned APP prays to dismiss the petition.
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6. In rejoinder, learned advocate Mr. Saiyed for the petitioner would submit that the petitioner had no occasion to aver withdrawal of Criminal Misc. Application No.16573 of 2014, as it was withdrawn on 28.4.2023 much subsequent to filing of this petition and therefore, it cannot be said that the petitioner has surprised the material fact.
7. Having heard learned advocates for the respective parties, at the outset, I may refer to the decision of Skoda Auto Volkswagen India Private Ltd. v/ s. State of Uttar Pradesh [2020 SCC Online SC 958], whereby the Hon'ble Apex Court has held that exercise of power under section 482 of the Code should be exercised sparingly and cannot be used to thwart the investigation. The relevant para reads as under :-
"41. It is needless to point out that ever since the decision of the Privy Council in King Emperor v. Khwaja Nazir Ahmed AIR 1945 PC 18, the law is well settled that Courts would not thwart any investigation. It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on. As cautioned by this Court in State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, the power of quashing should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. While examining a complaint, the quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or in the complaint. In S.M. Datta v. State of Gujarat (2001) 7 SCC 659 this Court again cautioned that criminal proceedings ought not to be scuttled at the initial stage. Quashing of a complaint should Page 5 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:56:29 IST 2025 NEUTRAL CITATION R/CR.MA/16575/2014 ORDER DATED: 02/07/2025 undefined rather be an exception and a rarity than an ordinary rule. In S.M. Datta (supra), this Court held that if a perusal of the first information report leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere."
8. In Central Bureau Of Investigation Versus Aryan Singh Etc., AIR 2023 SC 1987, the Hon'ble Apex Court in para 4 and 5 held and observed as under:-
"4. Having gone through the impugned common judgment and order passed by the High Court quashing the criminal proceedings and discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings in exercise of the limited powers under Section 482 Cr.P.C. and/or in exercise of the powers under Article 226 of the Constitution of India.
4.1 From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the Page 6 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:56:29 IST 2025 NEUTRAL CITATION R/CR.MA/16575/2014 ORDER DATED: 02/07/2025 undefined basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not".
4.2 One another reason pointed by the High Court is that the initiation of the criminal proceedings / proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings / proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.
5. In view of the above and for the reasons stated above, when the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings and applying the law laid down by this Court in catena of decisions on exercise of the powers at the stage of discharge and/or quashing the criminal proceedings, the impugned common judgment and order passed by the High Court quashing the criminal proceedings against the accused is unsustainable and the same deserves to Page 7 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:56:29 IST 2025 NEUTRAL CITATION R/CR.MA/16575/2014 ORDER DATED: 02/07/2025 undefined be quashed and set aside.
5.1 In view of the above and for the reasons stated above, present appeals succeed. The impugned common judgment and order passed by the High Court quashing and setting aside the criminal proceedings against the accused Aryan Singh and Gautam Cheema is/are quashed and set aside. The accused to face the trial for which they are chargesheeted. However, it is observed that all the contentions and defences, which are available to the respective parties are kept open, to be considered by the learned Trial Court during the trial. Considering the fact that the allegations in the FIR relates back to the year 2014 and as more than eight years have passed, we direct the learned Trial Court to conclude the trial at the earliest, but not later than 12 months from the date of the receipt of the present order. CBI to produce the present order before the concerned Magistrate at the earliest. All concerned are directed to cooperate with the learned Trial Court in concluding the trial within the time prescribed mentioned hereinabove. Present appeals are allowed accordingly."
9. The court is expected to exercise inherent jurisdiction under section 482 of the code to quash criminal proceedings / FIR at threshold sparingly. Simultaneously, the High Court under section 482 of the Code is prevented from holding mini trial. What is required to see as to whether sufficient material is available to quash the FIR and to exercise inherent jurisdiction. Noticeably, as per the case of the prosecution, the petitioner is indulged in the activity of selling disputed land multiple times and identical FIRs were lodged against the petitioner. One of such FIR is FIR being I - C.R. No.104 of Page 8 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:56:29 IST 2025 NEUTRAL CITATION R/CR.MA/16575/2014 ORDER DATED: 02/07/2025 undefined 2014 registered with Umargaon Police Station for identical and same offence and allegation. The petitioner has preferred Criminal Misc. Application No.16573 of 2014 before this Court, however, the learned advocate for the petitioner had withdrawn that Criminal Misc. Application which could be noticed from the order dated 28.4.2023 passed by the Coordinate Bench of this Court, which reads as under:-
"Mr.Nasir Saiyed, learned advocate for the applicant seeks permission to withdraw this application at this stage.
Permission, as prayed for, is granted. This application stands disposed of as withdrawn. Rule discharged. Interim relief granted earlier stands vacated."
10. It is noticeable that in 2023, aforesaid petition has been withdrawn and up till now, it has not been disclosed before this court. about withdrawal of that petition filed for quashment of the FIR having same allegation.. This type of systematic insincere approach smacks suppression of material fact. Moreover, the petitioner did not aver that that identical offence was registered against him i.e. FIR being I - C.R. No.104 of 2014. Filing of such FIR was well within the knowledge of the petitioner, and yet he has not averred the same in the petition. This is another suppression of material fact. Moreover, looking to the conduct of the petitioner, knowing fully well that he cannot sell disputed property to the complainant, obtained Rs.80,000/- and executed one agreement. He has executed identical agreements to other persons also, knowing fully well that the disputed land is agricultural land and cannot be sold without converting into Page 9 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:56:29 IST 2025 NEUTRAL CITATION R/CR.MA/16575/2014 ORDER DATED: 02/07/2025 undefined NA.
11. In the case of State of Haryana Vs. Bhajanlal & ors., AIR 1992 SC 604, the Hon'ble Apex Court has opined that power of quashing can be exercised very sparingly and that too in rarest of rare case. Relevant observations reads as under:-
"103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice."
12. In view of above, this court does not find any substance in the petition and since the petition being bereft of merit, the court does not incline to exercise inherent jurisdiction in favour of the petitioner and accordingly, the petition stands dismissed. Notice discharged. Interim relief granted earlier stands vacated.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 10 of 10 Uploaded by SHEKHAR P. BARVE(HC00200) on Thu Jul 03 2025 Downloaded on : Fri Jul 04 00:56:29 IST 2025