Gujarat High Court
Hardikbhai Dineshbhai Panchal vs State Of Gujarat on 11 July, 2023
NEUTRAL CITATION
R/CR.MA/550/2017 ORDER DATED: 11/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 550 of 2017
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HARDIKBHAI DINESHBHAI PANCHAL & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
HARSHADKUMAR D PANCHAL(9015) for the Applicant(s) No. 1,2
MR RAJESH H SAHJANI(5376) for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 11/07/2023
ORAL ORDER
1. The present application is filed for seeking following reliefs:
"[A] YOUR LORDSHIPS may be pleased to admit and allow this Criminal Misc. Application;
[B] YOUR LORDSHIPS may be pleased to quash. and set aside the impugned FIR being C.R.No.I- 87 of 2016 registered before the Vastrapur Police Station, Ahmedabad City for the offences punishable under section 406, 420, 114 of Indian herein. Penal Code against the petitioners [C] YOUR LORDSHIPS may be pleased to stay the Page 1 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023 NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined entire proceedings in relation to the impugned FIR lodged at Vastrapur Police Station, Ahmedabad City being C.R.NO.I-87 of 2016 against the present petitioners herein or not to take coercive steps against the present petitioners in the interest of justice.
[D] YOUR LORDSHIPS may be pleased to pass such other and further relief that may be deemed fit, just and proper in the interest of justice."
2. Brief facts as per the case of the applicants in this application are as such that it appears that the present application has been filed to challenge the FIR, which is registered for offenses punishable under Sections 406, 420, and 114 of the Indian Penal Code. The allegations state that the applicants were engaged in the activity of collecting money from the complainant, purportedly to facilitate admission to medical colleges in another state.
The complainant paid a substantial amount to the applicants through cheques, bank transfers, and cash.
However, the applicants failed to respond to the complainant's inquiries and ignored their phone calls.
Upon further investigation, it was discovered that no admissions were arranged in any medical college as Page 2 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023 NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined promised. Consequently, the complaint was lodged.
3. Heard learned advocate Mr. Harshadkumar Panchal for the applicants, learned advocate Mr Rajesh H. Sahjani for the respondent No.2 and learned APP Mr. Dhawan Jayswal for the respondent No.1 - State.
5. Learned advocate Mr. Harshadkumar Panchal has argued that based on the content of the FIR, it is evident that the applicants may have made some default, but there is no intention on their part to be considered as culprits under the law. He suggests that certain circumstances beyond the control of the applicants may have led to the situation. He further argues that applicant No. 2, being a lady, would face greater hardship if the proceedings resulting from the complaint are pursued. He highlights an affidavit filed by the complainant, in which it is stated that the complainant received the cheques, demand draft, and cash, and has given consent for the quashing of the same. This is brought to my attention as supporting evidence for the request to quash the proceedings. However, for reasons known only to the complainant, they filed Criminal Page 3 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023 NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined Miscellaneous Application No. 7979 of 2017 to vacate interim relief, claiming that the cheques provided by the applicants bounced and were not honored. Mr. Harshadkumar Panchal draws attention to the applicants' affidavit-in-reply filed in response to that application, arguing that the applicants had no intention to dishonor the cheques, and now the complainant is taking undue advantage of the situation. He further states that the applicants have already repaid all dues to other individuals who encountered similar issues, and they are willing to settle the dispute with the complainant.
Additionally, he points out that although the bounced cheque incident occurred 6 to 7 years ago, the complainant did not initiate separate proceedings concerning that cheque. Therefore, considering the overall facts and circumstances of the case and the lack of criminality attributable to the applicants, Mr. Harshadkumar Panchal requests that the present application may be allowed.
6.1 Per contra, learned advocate Mr. Rajesh H. Sahjani, for the respondent No.2 has strongly opposeed the prayers made by the applicants. He has submitted that Page 4 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023 NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined initially, the complainant filed the affidavit stating that the amount was received through a demand draft.
However, he further argues that the affidavit should be considered in the context of the demand draft and cash received at the relevant point in time in 2017. The cheques deposited subsequently bounced due to the applicants' instructions to stop the payment, which, according to Mr. Sahjani, clearly demonstrates the applicants' intention. Furthermore, he claims that during the pendency of this application, the applicant has made the payment as per the settlement reached between the parties. In support of this, he has provided demand drafts, cash, and cheques. However, the cheques were bounced, leaving him no choice but to file an application to vacate interim relief. Mr. Sahjani emphasizes that this conduct of the applicants is relevant and should be considered in the totality of the facts and circumstances of the case. He concludes that, prima facie, no case is made out against the applicants, and the alleged offense in the FIR does not warrant the exercise of powers under Section 482 of the Criminal Procedure Code, 1973, by this Court.
6.2 Learned APP has also supported the case of the Page 5 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023 NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined learned advocate for the respondent No.1.
7.1 I have considered the rival submissions made at the bar. I have heard learned advocates for the parties. I have also considered the fact that the FIR itself speaks about the modus operandi of the applicants herein, through which they have collected a huge amount from the complainants, as well as similar individuals, under the guise of arranging admission in medical colleges in Karnataka, specifically in M.S. Ramaiah Institute Bangalore and Dr. B.R. Ambedkar Medical College & Hospital. Thereafter, upon collecting such a substantial amount, which in the present case is Rs. 20 lakhs, no further process was carried out. Upon filing the complaint, the applicants approached this Court, where the complainant also appeared. During that time, the applicants assured the complainant of repayment, subsequently handing over a portion of the amount in cash, some through demand draft, and some through cheques. Upon depositing such a cheque, the applicants instructed the bank to stop the payment of the cheque amount. These cheques are also submitted as evidence.
Consequently, the act of the applicants in stopping the Page 6 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023 NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined payment of the cheques further aggravates the offenses they have committed, as mentioned in the already filed FIR. Furthermore, even from a basic examination of the FIR, a prima facie case is established under Section 406, 420, and 114 of the Indian Penal Code, 1860, which are as under:
"Section 406 in The Indian Penal Code:*-
406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 420 in The Indian Penal Code:-
420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 114 in The Indian Penal Code:-
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114. Abettor present when offence is committed.--
Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence."
7.2 Even the repayment of the entire amount cannot be considered a sufficient reason to quash the proceedings, especially considering the nature of the offenses committed by the applicants as described. The complaint contains specific allegations that the applicant has employed a well-designed modus operandi to entice certain students into securing admissions in medical colleges, for which he collected a substantial amount, in this case, Rs. 20 lakhs.
7.3 According to the applicants themselves, they claim to have settled similar disputes with other individuals and have received a significant amount of money from them. However, they have neither repaid the money nor arranged admissions to medical colleges as promised.
Hence, prima facie, the involvement of the applicants in the alleged offenses mentioned in the FIR is established.
Page 8 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined Considering the totality of the facts and circumstances of the case, the element of mens rea (guilty mind) is also present.
7.4 On the contrary, offenses of this nature should be considered offenses against society. Nowadays, numerous incidents occur where vulnerable individuals are enticed with attractive offers such as admissions for studying, visas for foreign countries, etc. They are then lured into providing substantial amounts of money, only to be left without any response or assistance. Therefore, this Court is of the opinion that no discretion should be exercised in favor of the applicants, considering the impact of such offenses on society, and more particularly, considering the ratio of the judgment of the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and Others reported in 2021 SCC OnLine SC 315, and more particularly para 80 is relevant, which is as under:
"80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/ Page 9 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023 NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) 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;Page 10 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023
NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, 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/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the 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;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference Page 11 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023 NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the Page 12 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023 NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim Page 13 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023 NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted Page 14 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023 NEUTRAL CITATION R/CR.MA/550/2017 ORDER DATED: 11/07/2023 undefined and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted"
within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
This Court is of the opinion that applicants are required to face proceedings of the trial.
8. Accordingly, the present application is dismissed with no order as to costs.
Notice stands discharged. Interim relief, granted earlier, stands vacated.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 15 of 15 Downloaded on : Sat Sep 16 21:09:20 IST 2023