Gujarat High Court
Sanjeev Madanlal Narula S/O M.L.Narula vs State Of Gujarat on 30 April, 2019
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/4917/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4917 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 4924 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 4925 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 4927 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 4929 of 2019
With
R/SPECIAL CRIMINAL APPLICATION NO. 4932 of 2019
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SANJEEV MADANLAL NARULA S/O M.L.NARULA
Versus
STATE OF GUJARAT
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Appearance:
ANAND S TAILOR(9021) for the Applicant(s) No. 1
for the Respondent(s) No. 2
Ms. Maithili Mehta, APP (2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 30/04/2019
COMMON ORAL ORDER
These are the group of petitions containing identical question of facts and law which need not be detailed. Suffice to note that Special Criminal Application No. 2802 of 2019 is one of the matters from this very group, where, this Court has dismissed the petitions without giving separate reasonings in view of the order passed in Special Criminal Application No. 2802 of 2019 all these matters stand dismissed.
Profitably, the reasons given in the Special Criminal Application No.2802 of 2019 are reproduced herein for ready Page 1 of 8 Downloaded on : Sun Jun 30 16:55:22 IST 2019 R/SCR.A/4917/2019 ORDER reference:-
"6. At the outset, this Court on considering the overall facts and circumstances of the case, is of the opinion that this is not a matter which deserves consideration at this stage and hence, deserves no entertainment.
7. It is worthwhile to reproduce the decision of the Apex Court rendered in case of HMT Watches Ltd vs M.A. Abida and Another (2015) 11 SCC 776, wherein a clear verdict is rendered that when questions raised before this Court are mixed question of facts and law and when factual matrix deserves to be proved before the trial Court, without availing an opportunity to the complainant side powers under section 482 of the code need not be exercised.
8. In the later decision of the Apex Court rendered in case of Dineshbhai Chandubhai Patel and Ors. Vs. State of Gujarat and Ors. reported in (2018) 3 SCC 104 wherein, the Apex Court while quashing the order of the High Court detailed as to when the powers under Section 482 of the Code are to be applied. Of course, there the case was still under investigation and prima facie case was made out by the complainant in the FIR. Apt would be to reproduce the findings and observations which is as under:-Page 2 of 8 Downloaded on : Sun Jun 30 16:55:22 IST 2019
R/SCR.A/4917/2019 ORDER "27) This Court in State of West Bengal & Ors. vs. Swapan Kumar Guha & Ors. (AIR 1982 SC 949) had the occasion to deal with this issue. Y.V. Chandrachud, the learned Chief Justice speaking for Three Judge Bench laid down the following principle:
"Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence.
The condition precedent to the commencement of investigation under S.157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R, prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences."
28) Keeping in view the aforesaid principle of law, which was consistently followed by this Court in 15 later years and on perusing the impugned judgment, we are constrained to observe that the High Court without any justifiable reason devoted 89 pages judgment (see-paper book) to examine the aforesaid Page 3 of 8 Downloaded on : Sun Jun 30 16:55:22 IST 2019 R/SCR.A/4917/2019 ORDER question and then came to a conclusion that some part of the FIR in question is bad in law because it does not disclose any cognizable offence against any of the accused persons whereas only a part of the FIR is good which discloses a prima facie case against the accused persons and hence it needs further investigation to that extent in accordance with law.
29) In doing so, the High Court, in our view, virtually decided all the issues arising out of the case like an investigating authority or/and appellate authority decides, by little realizing that it was exercising its inherent jurisdiction under Section 482 of the Code at this stage.
30) The High Court, in our view, failed to see the extent of its jurisdiction, which it possess to exercise while examining the legality of any FIR complaining commission of several cognizable offences by accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate Court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof.
31) At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the 17 Complainants and visa- se-versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Page 4 of 8 Downloaded on : Sun Jun 30 16:55:22 IST 2019 R/SCR.A/4917/2019 ORDER Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.
32) In our considered opinion, once the Court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code.
33) The very fact that the High Court in this case went into the minutest details in relation to every aspect of the case and devoted 89 pages judgment to quash the FIR in part lead us to draw a 18 conclusion that the High Court had exceeded its powers while exercising its inherent jurisdiction under Section 482 of the Code. We cannot concur with such approach of the High Court.
34) The inherent powers of the High Court, which are obviously not defined being inherent in its very nature, cannot be stretched to any extent and nor can such powers be equated with the appellate powers of the High Court defined in the Code. The parameters laid down by this Court while exercising inherent powers must always be kept in mind else it would lead to committing the jurisdictional error in deciding the case. Such is the case here.
35) On perusal of the three complaints and the FIR mentioned above, we are of the considered view that the complaint and FIR, do disclose a prima facie commission of various cognizable offences alleged by the complainants against the accused persons Page 5 of 8 Downloaded on : Sun Jun 30 16:55:22 IST 2019 R/SCR.A/4917/2019 ORDER 19 and, therefore, the High Court instead of dismissing the application filed by the accused persons in part should have dismissed the application as a whole to uphold the entire FIR in question."
9. In the instant case the main grievance on the part of the petitioner - original accused in case under Section 138 of the N.I.Act is that the complainant has nothing to do with M/s. Purnima Advertising Pvt. Ltd., there is no letter of authorization and cheques were drawn in favour of M/s. Purnima Advertising Pvt. Ltd. The grievance is also raised against the trial Court. The trial Court has noted that Mr. Rajendra Soni as Director of the Company filed a complaint. He has been substituted by Mr. Sanjeev Chunar by passing a Board resolution which has been placed on record. The Court also noticed that the matter had been transferred to Delhi Court where such substitution has taken place. The Court found the prima facie offence having taken place and sufficient material having existence on record to constitute the offence against the accused. By detailed and cogent reasonings, the Court had rejected the application for discharge and application for dropping the proceedings. This Court finds no grounds for interfering at this stage. Not only, there is reference of Board resolution having come on Page 6 of 8 Downloaded on : Sun Jun 30 16:55:22 IST 2019 R/SCR.A/4917/2019 ORDER record in relation to Mr. Sanjeev Chunar after the matter had travelled to Delhi Court in wake of decision of Dashrath Rupsing Rathod (Supra) as referred to hereinabove in case of HMT Watches Ltd (Supra), it will be prematured termination of proceedings if on the grounds raised by the petitioner in this matter, that the Court interferes and quash the proceedings.
10. Apt would be to refer to the decision of the Apex Court rendered in case of Samrat Shipping Co. Pvt. Ltd. Vs. Dolly George reported in (2002) 9 SCC 455 wherein a complaint is filed by the Company under Section 138 of the N.I.Act. Learned Magistrate dismissed the complaint on the ground that there is no resolution of Board of Directors of the company authorizing the person to represent the Company before the Court of learned Magistrate. Revision was preferred before the Sessions Court, in-futility and thereafter, the appellant had moved the High Court invoking jurisdiction under Section 482 of Cr.P.C . Learned Single Judge had dismissed the petition and thereafter, the appellant had approached the Apex Court.
"3. Having heard both sides we find it difficult to support the orders challenged before us. A Company can file a complaint only through human agency. The person who presented the complaint on behalf of the Page 7 of 8 Downloaded on : Sun Jun 30 16:55:22 IST 2019 R/SCR.A/4917/2019 ORDER Company claimed that he is the authorised representative of the company. Prima facie, the trial court should have accepted it at the time when a complaint was presented. If it is a matter of evidence when the accused disputed the authority of the said individual to present the complaint, opportunity should have been given to the complainant to prove the same, but that opportunity need be given only when the trial commences. The dismissal of the complaint at the threshold on the premise that the individual has not produced certified copy of the resolution appears to be too hasty an action. We, therefore, set aside the impugned orders and direct the trial court to proceed with the trial and dispose it off in accordance with law. Parties are directed to appear before the trial court on 31.01.2000."
11. From the discussion hereinabove and from all the facts and circumstances emerging on record, this petition is found prematured and cannot be sustained by invoking the jurisdiction under Section 482 of Cr.P.C.
(SONIA GOKANI, J) BEENA Page 8 of 8 Downloaded on : Sun Jun 30 16:55:22 IST 2019