Virendra Kaur D/O Gurubhajan Singh vs State Of Gujarat on 21 December, 2021

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Gujarat High Court

Virendra Kaur D/O Gurubhajan Singh vs State Of Gujarat on 21 December, 2021

2. Prayer is made under Section 482 of the Code of Criminal Procedure and under Article 226 of the Constitution of India to quash and set aside the FIR dated 25.10.2019 registered before Gotri Police Station, Vadodara City, for the offences punishable under Sections 406 and 420 of Indian Penal Code.

3. The petitioner states that the dispute raised in the FIR is civil in nature and the sole purpose of the complainant is to harass the petitioner as the complainant was personally involved in physical relationship with the petitioner. The petitioner is lady aged about 44 years, residing at Haldwani, Nainital, Uttarakhand. The petitioner had adopted a girl child who happens to be a daughter of her own brother. The petitioner and her adopted daughter were happily staying in the city of Haldwani since beginning. The petitioner states that with a view to see that the child gets father support, decided to get married and uploaded her profile on website on Jeevansathi.com in the month of May-June 2016. Through the said website the petitioner came in touch with the complainant Page 1 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 who introduced himself as a divorcee. The petitioner refers to the copy of profile and uploaded images of the complainant on the website Jeevansathi.com.

3.1 The petitioner states that the complainant had visited her house in Haldwani during September 2016 and stayed there for 4 to 5 days and that during the said period the complainant also offered the petitioner for starting online business and the complainant proposed that he would be supplying accessories of cameras to the petitioner for selling as he is the dealer of Nikon Company which happens to be the pioneer in digital cameras. The petitioner therefore thought of a bright future for herself and the adopted child, accepted the proposal and accordingly the business transaction took place between them from September 2016.

3.2 The petitioner further states that, during the period of March 2018 as well as September 2018, the complainant had taken her to Thailand with him for vacation, and during that period, the complainant had given impression that he was divorcee and was willing to marry the petitioner. Somewhere in the month of October-November 2018, the complainant disclosed the fact that he was already married to one Mrs. Narinder Kaur, and thus, the petitioner started distancing herself from the complainant and thereafter the petitioner uploaded her new profile on the website and started searching for a genuine life partner and thus she met Mr. Harmeet Singh Kohli who is a Canadian citizen. The petitioner thus states that thereafter she and Mr. Harmeet Singh Kohli decided to get married. On coming to know of all the said facts, the complainant herein started threatening the petitioner on Page 2 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 multiple occasions, on professional as well as personal fronts. The petitioner alleges that the complainant himself had come to Haldwani on 14th July, 2019, and threatened the petitioner with dire consequences if she proceeds to marry Mr. Harmeet Singh Kohli.

3.3 The petitioner further states that despite various attempts, the marriage of the petitioner with Mr. Harmeet Singh Kohli was concluded on 24th August, 2019, and having failed to stop the petitioner in marrying Mr. Harmeet Singh Kohli, the petitioner alleges that the complainant had decided to take revenge and thereafter he started to extort money from the petitioner by showing certain shocking photographs/videos of the petitioner which would defame her in the society. It is alleged by the petitioner that the complainant thereafter asked the petitioner to pay him an amount of Rs.30.00 lakhs in any manner, which is an attempt to extort money from the petitioner. The petitioner states that certain blank signed cheques which were stolen by complainant's son from the complainant in the year 2018 were deposited for collection, the bank account being closed on 10.09.2019, the cheques stood dishonoured. Thereafter the complainant sent a legal notice under Section 138 of the Negotiable Instruments Act. The petitioner states that, prior to receiving the said notice, she had already sent a notice to the complainant on 10th September, 2019, indicating the fact that the cheques were stolen and are required to be returned to her. It is alleged by the petitioner that since she did not bend to the will of the complainant and the fact that the complainant failed to pursue remedy under Section 138 of the Negotiable Instruments Act, the complainant decided to file impugned Page 3 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 complaint stating that he had given an amount of Rs.18.00 lakhs by way of Electronic Transmission and another Rs.12.00 lakhs by way of Angadiya. The petitioner states that she is having all the evidences regarding financial transactions between the complainant and no such alleged transaction has ever taken place. The petitioner alleges that the complainant still owes lot of money to her and with a view to see that she does not attempt recovery of the said money, the complainant has decided to destroy her personal life as well as professional life by filing false complaint. The petitioner further states that she had been granted anticipatory bail by order of this Court dated 22.01.2020 passed in Criminal Misc. Application No. 23179 of 2019.

3.4 The petitioner further states that on 11.01.2020 she had filed a complaint against the complainant under Sections 376 and 506 of the Indian Penal Code before Mukhani Police Station, Haldwani, District Nainital, Uttarakhand on the ground that he had falsely presented himself as a divorcee and committed statutory rape of the complainant and it has been stated by the learned counsel for the respective parties that the chargesheet has been filed in pursuance to the complaint.

4. Mr. R.R. Marshall, learned Senior Advocate alongwith Mr. Rituraj Meena, learned advocate for the petitioner submitted that the impugned FIR is one of malicious prosecution and an attempt to wreck vengeance upon the petitioner by the complainant. Learned Senior Advocate Mr. Marshall for the petitioner submitted that the present case is one of abuse and misuse of State machinery and a false complaint has been filed which does not constitute any offence as described under Page 4 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 Sections 405 and 420 of Indian Penal Code.

4.1 Mr. Marshall, learned Senior Advocate for the petitioner submitted that the business transaction between the complainant and the petitioner were maintained in the Ledger Account of "Nanak Trading" shows the dealing with the different firms of complainant and also shows the details of transaction since 2016 to 2019 and submits that the dealings does not reflect any of the alleged amount as stated in the FIR. Learned Senior Advocate Mr.Marshall submitted that the transaction between the complainant and the petitioner would purely be a civil dispute which has been given a criminal colour with a sole intention to take revenge and to wreck the personal life of the petitioner.

4.2 To fortify the submission, learned Senior Advocate Mr. Marshall took this Court through certain chats between the complainant and the petitioner to suggest that the complainant had a malicious intention to take revenge. Learned Senior Advocate Mr.Marshall submitted that the petitioner has not cheated the complainant, but, in fact, the complainant has cheated the petitioner on the false promise of marriage and has committed the offence of rape by inducing the petitioner on the pretext that he is a divorcee and will marry with her. Learned Senior Advocate Mr. Marshall submitted that there would not be any element of cheating, even keeping aside all the personal affairs of the parties, the business transactions between the parties are from 2016 and continuous payment was made; thus there would not be any cause for breach of trust, and even if the complainant has any cause for the cheques, which has been dishonoured on Page 5 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 account of bank account being closed, learned Senior Advocate Mr.Marshall stated that the complainant can take recourse under Negotiable Instruments Act, which, according to the instructions, the complainant had also filed criminal complaint under Section 138 of the Negotiable Instruments Act.

5. Countering the argument, learned advocate Mr. Himanshu Desai appearing on behalf of the respondent- complainant submitted that false and fabricated facts have been woven in the petition. Mr. Desai, learned advocate for the respondent-complainant submitted that the petitioner very well knew the matrimonial status of the complainant. The complainant had stood witness in an agreement between the petitioner, and one Mr. Devraj Bajaj, which, learned advocate Mr. Desai stated that it is a separation deed and the complainant had stood witness to the amount of Rs.10.00 lakhs paid to the petitioner. Mr. Desai, learned advocate for the respondent-complainant stated that the petitioner had decided to deal in the business, and for that purpose, complainant had supported the petitioner.

5.1 Mr. Desai, learned advocate for the respondent- complainant submitted that the respondent had business relation for carrying out online business of selling parts and accessories of camera and related items. The respondent has helped the petitioner in establishing the business by supplying various items required for supplying to her customers and also provided credit to her. Mr. Desai, learned advocate submitted that the bank statements produced alongwith present application indicate the volume of the business that was generated on account of active participation of the respondent.

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R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 Mr. Desai, learned advocate stated that, as per the complainant, after business of about three years the petitioner had got married and prepared to go away without making payments to the respondent, she had stopped responding to request for remittances, and, in fact, the respondent had transferred Rs.18.00 lakhs through electronic transfer which is reflected in the bank statement produced by the petitioner and Rs.12.00 lakhs were sent by Angadiya, and as a counterblast she has filed a false and frivolous complaint under Sections 376 and 506 of Indian Penal Code at Uttarakhand with sole intention to avoid making lawful payment to the respondent. The respondent approached the Hon'ble High Court of Uttarakhand, by preferring Criminal Misc. Application No. 248 of 2020, and interim relief has been granted by direction to the concerned authority that no coercive action be taken against him, which is still in force.

5.2 Mr. Desai, learned advocate for the respondent- complainant submitted that, after having cheated the complainant, the petitioner had made an attempt to malign the respondent by filing a false and frivolous FIR under Sections 376 and 506 of IPC, thus to exert pressure on the complainant for compromising and forgoing huge amount of Rs.30.00 lakhs. Mr. Desai, learned advocate submitted that the petitioner has not denied the receipt of the money. He submitted that the powers under Section 482 of Cr.P.C. must be exercised sparingly, and when prima facie ingredients of the offence are disclosed in the FIR then the Court should not interdict the FIR.

6. The allegation in the FIR is to the effect that the complainant had asked for 250 pieces of camera and lens of Page 7 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 different companies on 17.09.2018 worth Rs.18.00 lakhs and for that he states that he has made payment by net banking, and thereafter on 10.10.2019 again he had placed an order for 35 pieces of camera and lenses of different companies worth Rs.12.00 lakhs. For that he states that he has made payment by cash and through Angadiya; thus, as per his averments, the goods which he had placed an order of total worth Rs.30.00 lakhs has not been sent to him inspite of his payment. Request was made through whatsapp and email, and failing to respond to his request for sending the goods, learned advocate Mr. Desai contends that it is a case of cheating and criminal breach of trust. He has further alleged that the petitioner has also cheated one Pratimaben Mitesh Thakkar to whom she has yet to make payment of Rs.2,90,000/- for the gifts and food order delivered to her. The complainant has alleged about non-delivery of the goods as per his order. He has given the details about the goods placed under order on 17.9.2018 and 10.10.2019. The complainant has stated about his dealings with Nanak Trading Corporation, seller of the product dealing with Flipkart, Amazon, and Snapdeal, and the complainant states that his address of Baroda was given, therefore he used to send the goods in accordance to the order and was receiving the money to his account for those transactions, and because of those transaction, he trusted them and therefore continued the business till 2019. In March 2019 he received the cheque and a letter wherein it was informed to him that they have received money but they would not be in a position to send the goods and therefore for that consideration the cheque was sent to him. The complainant thereby states that the petitioner has not paid Rs.30.00 lakhs which were for the transactions dated 17.09.2018 and 10.10.2019 and thereby Page 8 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 had committed offence of cheating and criminal breach of trust.

7. The chats between the complainant and the petitioner shows that they had some personal terms. The petitioner had even filed FIR against the complainant alleging the offence under Section 376 of IPC. The ledger statement of Nanak Trading Corporation from 01.04.2016 to 30.09.2019 discloses the transaction with the company of the complainant NEXT. It appears to be a business transaction between the complainant and the petitioner. The document has been produced on record of NEXT dated 01.04.2018 which declares that Nanak Trading Corporation, C-203 Shiv Niketan Society, O.P. Road, Vadodara, Gujarat and Nanak Trading Corporation, 13/52, first floor, Gurunanak Pura, Thandi Sadak, Haldwani, Uttarakhand is the authorised partner of Nikkon camera/lens and photo good from March 2018 to March 2019.

8. In the case of S.W. Palantikar and others v. State of Bihar and another reported in (2002) 1 SCC 241, the Hon'ble Apex Court while explaining the ingredients of criminal breach of trust has observed that, mens rea is a necessary ingredient without which a breach of trust may not result in criminal breach of trust. The Apex Court has referred to the stage at which fraudulent or dishonest intention should exist in order to make out the offence of cheating, and it was held that, such intention must be shown to exist at the time of making of the inducement; otherwise, mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. The ingredients of an offence of cheating are : (I) there should be fraudulent or dishonest inducement of a Page 9 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.

9. In the case of G.V. Rao v. L.H. V. Prasad reported in (2000) 3 SCC 693, the Hon'ble Supreme Court in para 7 has observed as under:

"7. As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part; the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR (1956) SC 575 a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B., AIR (1954) SC 724 that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered"

[emphasis supplied] Thus for the offence of cheating, mens rea on the part of the person must be established and the intention to deceive should be in existence at the time when the inducement was offered. Here, in this case, such ingredients are absent; the Page 10 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 substance in the FIR does not disclose any intention to cheat.

10. In the case of International Advanced Research Centre for Powder Metallurgy and New Materials (ARCI) and others v. Nimra Cerglass Technics (P) Ltd. and another reported in (2014) 10 SCC 663, the Hon'ble Apex Court while dealing with the legal position of quashing of the prosecution at the initial stage has observed that, when the prosecution sought to be quashed at initial stage then the general rule would be the test to be applied as to whether un- rebutted allegations made in the complaint established the offence or not. Referring to the facts of the case it was held that to constitute the act of cheating, dishonest inducement to deliver the property etc. and the mens rea of the accused at the time of making inducement is essential, making a false representation is essential ingredients, and such representation ought to have been made to deceive the complainant. Cheating is made out if dishonest intention existed at the time of making the promise and if a representation made by accused has subsequently not being kept, criminal liability cannot be foisted, then in that eventuality the complainant has only right to avail remedy in Civil Court for breach of contract.

Here in the instant case the complainant had a business dealing with the petitioner; the account statement reflects the transaction of the petitioner with the complainant from the year 2017 and the complainant too has referred to his dealing with Nanak Trading Company. A reference has also been made to one letter and a cheque. The complainant has also alleged that the letter was also sent alongwith cheque as a consideration for failure to dispatch goods. The complainant Page 11 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 has failed to show how he got induced to part with his money since the business transaction is longstanding. It appears that some private and personal relation between the complainant and the petitioner got estrange and thereby both the parties have made allegations and counter allegations against each other. It appears that the present impugned FIR is motivated by malafide intention, there appears to be a no case of intentional inducement to deceive from the side of the petitioner to constitute an offence of cheating or criminal breach of trust.

11. In the case of Vineet Kumar and others v. State of Uttar Pradesh and another reported in (2017) 13 SCC 369; the Hon'ble Supreme Court in para 41 has observed as under:

"41. Inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana vs. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana vs. Bhajan Lal, which is to the following effect:

"102. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the Page 12 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 accused and with a view to spite him due to private and personal grudge." Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of the State of Haryana vs. Bhajan Lal, but did not advert to the relevant facts of the present case, materials on which Final Report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where High Court ought to have exercised its jurisdiction under Section 482 Cr. P.C. and quashed the criminal proceedings."

12. In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court made the following observations:-

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in Page 13 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022 R/SCR.A/5663/2020 ORDER DATED: 21/12/2021 support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

13. In the result, the petition is allowed. The first information report bearing C.R. No. I - 157 of 2019 registered with Gotri Police Station, Vadodara City, and Criminal Case No. 10591 of 2020 as also the subsequent proceedings initiated in pursuance thereof qua the petitioner is quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(GITA GOPI,J) A.M.A. SAIYED Page 14 of 14 Downloaded on : Wed Jan 12 13:22:46 IST 2022

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