Gujarat High Court
Manharbhai Arvindbhai Patel & vs State Of Gujarat & on 4 August, 2017
Author: B. N. Karia
Bench: B.N. Karia
R/CR.MA/14868/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 14868 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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MANHARBHAI ARVINDBHAI PATEL & 1....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR A.R.ROCKEY for MR NIKHIL S KARIEL, ADVOCATES for the Applicant(s)
No. 1 - 2
MR SURESH B BHATT, ADVOCATE for the Respondent(s) No. 2
MR RUTVIJ OZA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 04 /08/2017
CAV JUDGMENT
1. This application has been filed by the applicants/accused no.1 and 2 under Section 482 of Page 1 of 21 HC-NIC Page 1 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT the Code of Criminal Procedure (for brevity "CrPC") praying to quash and set aside the complaint, being C.R. No. I-200 of 2013 registered with Mahemdabad Police Station for the offence punishable under Sections 406, 420, 467, 468, 471 and 114 of the Indian Penal Code.
2. Brief facts of the complaint are that the applicant no.1 is the elder brother of the complainant and accused no.2 is the mother-in-law of the complainant. Marriage of the complainant was solemnized with Samirbhai Ghanshyambhai Patel, as per Hindu rites, and during their wedlock, one son and one daughter were begotten, but suddenly, husband of the complainant viz., Samirbhai died on 27th July, 2011. During life time of husband of the complainant, her husband was depositing regularly a sum of amount in MIS scheme of Post Office at Mahemadabad as well as in KVP savings scheme also and all such passbooks, Page 2 of 21 HC-NIC Page 2 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT receipts of fixed deposits are lying with the applicant no.2. After death of the husband of the complainant, father-in-law and mother-in-law started quarrel with the complainant. Elder brother of the complainant namely Manharbhai was instigating father-in-law and mother-in-law of the complainant as well as children of the complainant against the complainant and on 12th January 2013, they drive her out by exerting mental torture. It is alleged in the complaint that when she inquired from the post office at Mahemadabad in respect of amount deposited by her husband, she was informed by the accused no.3 that by putting signatures, her father-in-law, mother-in-law and elder brother had allegedly withdrawn such amount and they denied to pay any pie to her. Thus, on 31.01.2013 and 04.02.2013; the applicants withdrew money from the account of complainant by forging her signatures. It is further alleged that Page 3 of 21 HC-NIC Page 3 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT the applicants had also withdrawn money by using ATM Card of the complainant and such withdrawal in all comes to Rs. 3,58,190/-. Thus, by illegal means, from the account of complainant, accused had withdrawn the funds and that is how, the present complaint has been lodged against the applicants.
3. Heard learned advocate Mr. A. R. Rockey for Mr. Nikhil S. Kariel, learned advocate appearing on behalf of the applicants, learned advocate Mr. Suresh B. Bhatt appearing on behalf of the respondent no.2 and learned APP Mr. Rutvij Oza appearing on behalf of the respondent no.1-State.
4. Learned advocate Mr. A. R. Rockey appearing on behalf of the applicants submitted that the impugned complaint is nothing but an abuse of process of law and an abuse of process. That, the allegations levelled against applicants are absolutely false, malicious and does not have an Page 4 of 21 HC-NIC Page 4 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT iota of truth. The impugned complaint came to be filed after unexplained delay of six months and hence, the same is nothing but an afterthought. That the complainant, after unfortunate demise of her husband, indulged into extramarital relationship with one person who to the best of knowledge of the applicants, is working in the Police Department. That, such relation was not liked by everyone in the family of her in-laws, her own family as well as children also. The family of in-laws and family of the complainant together resolved and come to an understanding with the complainant that if she wants to leave her marital house as well as her children, she would have to forgo all her rights arising from status as wife of deceased Samerrbhai Patel. At the relevant point of time, complainant agreed to the said settlement and she had issued cheques in the name of the applicant-accused no.2, wherein, it was agreed that this amount would be Page 5 of 21 HC-NIC Page 5 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT used for the purpose of education of the children. That, as a part of settlement, the amount in postal deposit schemes was to be used for the welfare of both the children of the complainant who are now living with the applicant/accused no.2. That, the in- laws of the complainant issued a public notice in the news paper, wherein, it was clearly mentioned that the complainant would not be entitled to any movable or immovable property of her late husband and this was cause for complainant to file the complaint and the very conduct of complainant of not filing complaint for approximately 6 months itself shows that the complaint is nothing, but an act of wrecking vengeance on her in-laws as well as upon her own family. There was no need to file the impugned complaint in view of the fact that the entire amount, as alleged, had already been redeposited in the postal account of the complainant much prior to filing of the complaint. Page 6 of 21 HC-NIC Page 6 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT Earlier, a false complaint was filed by the complainant before Mahila Police Station, Nadiad, which subsequently, came to be withdrawn. The complainant is habitual of filing false complaints. The complainant has filed impugned complaint against her brother also. It is pertinent to note that the conduct of the complainant is such that both the families are against the complainant, and therefore, it is being sole reason to harass the applicants. That, the cheques transferring amount in question to the account of applicant-accused no.2 were issued by the complainant herself voluntarily and the said cheques were issued by the complainant as part of settlement with her relatives. Ultimately, it was requested by him to allow this application by quashing and setting aside the impugned complaint.
5. Learned advocate Mr. Suresh B. Bhatt appearing on behalf of the respondent no.2 strongly opposed the arguments advanced by learned Page 7 of 21 HC-NIC Page 7 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT advocate for the applicants and submitted that the present application is misconceived and not maintainable in law. That, the respondent no.2 is widow and after the death of her husband, she has no source of income and applicants are taking disadvantage of her poor economic condition by creating mental, physical and economic pressure and torture, they wanted to grab all belongings of the respondent no.2 and are trying to deprive her from legal rights. That, the respondent no.2 gave application for 'stop payment' to the Postal department on 27th March, 2013, but the respondent no.2 was informed that an amount of Rs. 3,58,190/- was paid prior to such application and no further payments were to be made after such an application. Thus, the entire amount was returned back to the postal department by the applicants on 28th March 2013, which shows that the said amoun was withdrawn by he applicants by forging Page 8 of 21 HC-NIC Page 8 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT signature of the respondent no.2 on different payment vouchers from her postal account and because of her application to "stop payment" dated 20th March 2013, the applicants were compelled to return the said amount to the Postal department. In support of his arguments, learned advocate Mr. Sursh B. Bhatt for the respondent no.2 has placed reliance upon the decisions in the case of Som Mittal v. Government of Karnataka, reported in 2008 Law Suit (SC) 137 and State of Andhra Pradesh v. Aravappally Venkanna & Anr., reported in 2009 Law Suit (SC) 2094 and ultimately, it was requested by him to dismiss the petition.
6. Learned APP Mr. Rutvij Oza appearing on behalf of the respondent no.1-State has submitted that false signature was made by the present applicants in a voucher as well as on the cheque and thereby they have committed fraud; as alleged in the complaint. It is further submitted that by making Page 9 of 21 HC-NIC Page 9 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT false signature, both the applicants, with conspiracy, have withdrawn the aforestated amount from the Post Office in connivance of the accused no.3-Post Master. It is further submitted that investigation is required to be conducted into the matter, considering allegations made by the respondent no.2 to find out the truth. That, as per the averments made by the complainant in her complaint, prima facie, substance is found that false signature was made by the present applicants, and thereafter, after coming to know that complaint had been filed by her, amount of Rs. 3,58,190/- was redeposited by father-in-law of the complainant with the Postal department on demanding from them. Therefore, it is a premature stage to accept prayer made by the applicants to exercise powers vested under Section 482 CrPC, and ultimately, it was requested by him to dismiss the petition.
7. Heard learned advocates appearing on behalf Page 10 of 21 HC-NIC Page 10 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT of the respective parties as well as learned APP appearing on behalf of the respondent no.1-State at length.
8. Having considered the facts of case, submissions made by learned advocates for the rival parties, it appears that the respondent no.2 has lodged a complaint against the present applicants alleging that in connivance with the Post Master, Mahedabad Post Office, they have illegally withdrawn a sum of Rs. 3,58,190/- from postal account of the complainant by forging her signatures and thereby cheated her. It appears that complainant is daughter-in-law of the applicant no.2 and real sister of the applicant no.1. Husband of the complaint had expired. During married life of the complainant with her husband, 2 children are born and as per submission by the applicants, they are by now aged 18 and 16 years respectively and are staying with the applicant no.2. It is alleged by the Page 11 of 21 HC-NIC Page 11 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT applicants that after demise of her husband, the respondent no.2 had started extramarital relationship with one person and said person was working in the Police Department. As such relationship was not permitted by the present applicants in family, including in-laws of the complainant as well as her family members and even her children, she had filed a complaint. It also appears from the record that earlier she had preferred one complaint before Mahila Police Station, Nadiad, in the month of January 2013 alleging threat to her life from in-laws and her son. It is alleged that members of both the sides had together arrived at understanding with the complainant whereby she would have to leave her marital home as well as her children and would have to forgo all her rights arising from a status as a wife of deceased Sameerbhai Patel and at the relevant point of time, she had agreed with the said Page 12 of 21 HC-NIC Page 12 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT settlement and therefore, she had issued cheques herself in the name of applicant no.2 herein. It is further alleged that complainant also agreed that the said amount was to be used for the purpose of providing education to her children. It appears that a public notice was issued in a daily newspapers. It also appears that some dispute with regard to the amount transferred from postal deposit scheme to her account in Dena Bank and from account of applicant no.2 was pending then. On facing accusations made, the father-in-law of the complainant deposited entire amount with the postal authorities at Mahemadabad Post Office on 28th March, 2013. It appears from the document produced on record that on 29th January 2013, statement of the present applicants, complainant and her children alongwith father-in-law were recorded at Mahila Police Station, Nadiad in connection with complaint, being II AP No. 33 of Page 13 of 21 HC-NIC Page 13 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT 2013, wherein complainant has clearly stated that she had left her marital home to live alone by herself and she had withdrawn all the allegations against her in-laws as well as her own siblings. It is stated by the complainant that the complaint, being II AP No. 33 of 2013 filed before Mahila Police Station for her protection was withdrawn by her under pressure given by the present applicants. That, though, she was assured that all disputes would be settled amicably and under this pretext her signature was obtained in the Police Station on some papers under the pressure. But, she was not aware about the contents of the said paper and hence, she has not given any statement or withdrawn the application voluntarily. It is pertinent to note that as per the applicants, the dispute between the complainant and applicants was settled, and there was no need for public notice to be published by her in-laws. By making Page 14 of 21 HC-NIC Page 14 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT assassination on the character of the complainant, prima facie, this court is of the view that her image has been maligned, as she had completely denied the allegation made regarding her personal life . The allegation made by her in the complaint that due to her poor economic condition and she being widow, she has no source of income, and therefore, the present applicants by giving mental, physical and economic pressure as well as torture, wanted to grab all her belonging and have tried to deprive her from legal rights, as she was widow of the deceased Samirbhai Ghanshyambhai Patel. It appears that a Savings Account with Dena Bank, Nadiad branch was opened by the complainant. As per allegation, passbook and cheque book of the said account and her all belongings were taken by the applicant no.2 ie., her mother-in-law. When she was in need of money for survival, she went to Mahemadabad Post Office and inquired about the amount deposited in Page 15 of 21 HC-NIC Page 15 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT her name. On inquiry, it was found that the present applicants had already withdrawn the said amount of Rs. 3,58,190/- from her postal account on 31st January 2013 by forging signature. They also had withdrawn money from the Bank by using ATM Card and misusing her cheques without her knowledge and consent. When she had given instruction for "stop payment" from her account to the Postal department on 27th March, 2013, she was informed by the Postal department that an amount of Rs. 3,58,190/- was already paid prior to her application and no further payment was due to be paid after her application. It appears that a sum of Rs. 3,58,190/- was returned back to the Postal department by the present applicants which was allegedly withdrawn under the signature on different payment vouchers from the postal account and thereafter, on a request made by the complainant, the Postal department stopped Page 16 of 21 HC-NIC Page 16 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT payment on 20th March, 2013. Withdrawing amount by the present applicants from the account of the respondent no.2, while she was staying separate from the applicants and thereafter, again redepositing the said amount with the Postal department, on instructions made by the respondent no.2 to the said department of making "stop payment", reply received by her from the department shows the malafide intention on the part of present applicants. Further, contention on behalf of the applicants that broad settlement was arrived at by relatives with the complainant whereby she was free to leave the matrimonial house and by doing so, she would forfeit all her rights, entitlement to as the wife of late Sameerbhai Patel, as well as children will remain with in-laws and the complainant will not have any right over movable and immovable properties of her husband in any manner are based on verbal only and but no Page 17 of 21 HC-NIC Page 17 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT documents were produced by the present applicants in respect of alleged settlement arrived at by and between the parties. There is nothing on record that the applicants have been permitted by the respondent no.2 to withdraw the said amount from the account of complainant. There is a dispute between both the parties based on factual aspects which requires investigation, as per opinion of this Court. So far as contention that settlement has been arrived at by and between the parties, the said fact has been completely denied by the respondent no.2 in her affidavit-in-reply at page no.35, therefore, their contentions, at present, cannot be accepted as a gospel truth. Withdrawal of complaint was voluntarily or not cannot be determined considering her statement. Therefore also, submissions made by the present applicants cannot be accepted on its face value.
9. Learned advocate for the respondent no.2 has Page 18 of 21 HC-NIC Page 18 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT relied in the case of State of Andhra Pradesh v. Aravappally Venkanna & Anr., reported in 2009 Law Suit (SC) 2094, wherein it is held that FIR has to be read as a whole, acceptability of materials to fasten culpability on accused on accused persons is a matter of trial. These are not cases where it can be said that FIR did not disclosed commission of an offence. Quashing an FIR by the High Court was not justified in the concerned cases and it was set aside by the Hon'ble Apex Court.
10. In case of Som Mittal v. Government of Karnataka, reported in 2008 Law Suit (SC) 137, it is held that inherent powers under Section 482 CrPC has no rule but it is an exception to be applied only when it is brought to the notice of the Court that grave miscarriage of justice would be committed, if the trial is allowed to proceed and the accused would be harassed unnecessary, if the trial is allowed to linger when prima facie it appears that Page 19 of 21 HC-NIC Page 19 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT trial would likely to be ended in acquittal. Power under Section 482 CrPC can be invoked either to prevent abuse of process of any Court or otherwise to secure the end of justice.
11. From the documentary evidence as well as contentions of the respective parties, this court is of the view that no powers under Section 482 CrPC is required to be exercise in favour of the present applicants. Hence, present application deserves to be dismissed and is accordingly dismissed.
12. It is clarified that this Court has not expressed any opinion on merits of the case. The trial court shall decide the matter uninfluenced by any observation made by this Court. It is further clarified that it is open to the parties to urge all the contentions, as available to them under the law.
13. Rule is discharged with no order as to costs. Ad-interim relief stands vacated.
(B. N. KARIA, J) Page 20 of 21 HC-NIC Page 20 of 21 Created On Sat Aug 12 10:47:05 IST 2017 R/CR.MA/14868/2013 CAV JUDGMENT A request is being made by learned advocate Mr. A. R. Rockey for Mr. Nikhil S. Kariel, learned advocate appearing on behalf of the applicants to continue ad-interim relief granted earlier in favour of the applicants, to which learned advocate Mr. Suresh B. Bhatt has strongly objected.
Considering the fact that the applicants are desirous to challenge the order passed by this Court before the Apex Court, an opportunity be given to the applicants, and hence, ad-interim relief granted by this court vide order dated 23rd September 2013 shall be continued for a period up to 11th September 2017.
(B. N. KARIA, J) ksdarji Page 21 of 21 HC-NIC Page 21 of 21 Created On Sat Aug 12 10:47:05 IST 2017