Gujarat High Court
Devanshubhai Bharatkumar Mehta & 3 vs State Of Gujarat & on 3 May, 2017
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/15738/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 15738 of 2011
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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DEVANSHUBHAI BHARATKUMAR MEHTA & 3....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR NK MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 - 4
MR AD SHAH, ADVOCATE for the Respondent(s) No. 2
MR KP RAVAL, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 03/05/2017
CAV JUDGMENT
1. The applicants-original accused have preferred this application under Section 482 of the Code of Criminal Procedure, 1973 {"CrPC" for brevity} for quashing and setting aside the order passed by the Page 1 of 32 HC-NIC Page 1 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT learned 5th Additional Civil Judge & Judicial Magistrate First Class, Bhavnagar on 31.01.2011 whereby summons have been issued upon the applicants to face trial for the offence punishable under Sections 406, 409, 415, 420, 423, 424 and 114 of the Indian Penal Code in Criminal Case No. 599/2011 (Inquiry case No. 106/2010).
2. Brief facts of the case are that one "Satakhat" agreement [Agreement to sell] was executed by the applicant no.4, being a power of attorney of applicant no.1 in favour of the respondent no.2 in respect of the property, registered as survey No. 1304 and 1305 of sheet No. 63, ward no. 3 in the city survey office, Bhavnagar. That, the respondent no.2 failed to make payment, as per condition no.4 of the said agreement within time limit. Therefore, the applicant no.4 issued a notice on 03.05.2010 to the respondent no.2 for cancellation of "Satakhat agreement" and such notice was served upon the Page 2 of 32 HC-NIC Page 2 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT respondent no.2. That thereafter, the applicant no.4 also published a public notice in "Saurashtra Samachar" newspaper declaring that the "satakhat agreement" dated 02.06.2008 is cancelled and the amount paid by the respondent no.2 stood forfeited. That thereafter, the respondent no.2 filed Regular Civil Suit No. 258/2010 in the Court of learned Civil Judge (S.D.), Bhavnagar for declaration and permanent injunction, wherein vide order dated 16.06.2010, the suit was ordered to be returned to the plaintiff ie., the respondent no.2 with a direction to present it before the court having jurisdiction by taking into account para 15 of the Civil Manual. 2.1 That thereafter, the said suit came to be converted as Special Civil Suit No. 90/2010, but the plaintiff ie., respondent no.2 failed in that suit. Therefore, he lodged a complaint, being Inquiry Case No. 106/2010 before the court of learned 5th Additional Senior Civil Judge & JMFC, Bhavnagar Page 3 of 32 HC-NIC Page 3 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT against the present applicants. That, in the said complaint, on 27.10.2010, an order came to be passed and inquiry was ordered wherein PSI 'C' Division police station was directed to submit his report within 30 days and after receiving the said report, 5th Additional Senior Civil Judge & JMFC passed an order and issued process on 31.01.2011 and such inquiry is ordered to be given Criminal Case No. 599/2011.
2.2 That, being aggrieved by the order dated 31.01.2011, the applicant no.4 preferred Revision Application No. 41/2011 before the court of learned District and Sessions Judge, Bhavnagar, but vide order dated 18.04.2011, the said revision application came to be disposed of and the applicant no.4 was granted liberty to submit discharge application, if he desires so. That thereafter, the applicants no.2 and 3 preferred application seeking discharge from the proceedings Page 4 of 32 HC-NIC Page 4 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT of Criminal Case No. 599 of 2011. That, during this discharge application, an application Ex. 13 was preferred on behalf of the applicants seeking exemption from remaining present in the proceedings of Criminal Case No. 599/2011 and on 12.08.2011, said application came to be granted on a condition that all the accused shall remain present on the next date of hearing That, against the order dated 12.08.2011, applicants no.1 to 3 preferred Revision Application No. 110/2011, but vide order dated 18.10.2011, the said revision application has been rejected.
3. Heard learned advocate Mr. N.K. Majmudar appearing on behalf of the applicants, learned advocate Mr. A.D. Shah appearing on behalf of the respondent no.2 and learned APP Mr. KP Raval appearing on behalf of the respondent no.1-State.
4. Learned advocate Mr. N.K. Majmudar appearing on behalf of the applicants has submitted that the Page 5 of 32 HC-NIC Page 5 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT complaint filed by respondent no.2, being Criminal Case No. 599/2011 (Inquiry Case No. 106/2010) is absolutely frivolous, vexatious and has been filed with a view to pressurize the applicants to sell the property in question in favour of the respondent no.2-complainant pursuant to the so called "satakhat". That, in fact the respondent no.2 failed to make payment as agreed in the Satakhat, and therefore, due to default on the part of respondent no.2, the so called "Satakhat" stood cancelled. That, despite the alleged dispute being of civil nature, a criminal complaint has been filed by the respondent no.2, with a view to pressurize the applicant. In support of his arguments, learned advocate Mr. NK Majmudar appearing on behalf of the applicants has relied upon the following authorities:
1. Binodkumar & Ors. v. State of Bihar, reported in 2014 (10) SCC 663.
2. Prakash Ramchandra Barot v. State of Page 6 of 32 HC-NIC Page 6 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT Gujarat, reported in 2012(1) GLR 449
3. V.P. Shrivastava v. Indian Explosive Limit & Ors., reported in (2010) 10 SCC 361
4. D.P. Gulati Manager Accounts Jetking Infortain Limi. v. State of Uttar Pradesh & Anr., reported in (2015)11 SCC
730.
5. Mohd. Khalid Khan v. State of Uttar Pradesh, reported in 2015(15) SCC 679.
6. Rini Johar v. State of M.P., reported in AIR 2016 SC 2679.
7. Rajib Ranjan & Ors. v. R. Vijaykumar, reported in (2015)1 SCC 513.
8. Rini Johar v. State of M.P., reported in AIR 2016 SC 2679.
9. International Advanced Research Centre for Powder Metallurgy and New Materials v. Nimra Cerglass Technics (P) Ltd., reported in 2016(1) SCC 348.
5. Learned advocate Mr. NK Majmudar appearing on behalf of the applicants further argued that the allegations made in the complaint, even if are taken on its face value, discloses only a civil liability, and Page 7 of 32 HC-NIC Page 7 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT therefore, this matter needs to be examined by the Civil Court of competent jurisdiction. The allegations could be proved or disproved on the basis of evidence led by the parties. That, since 2nd June 2008, the property in question was standing in the name of the applicant no.1 and being the owner, he had given power of attorney in favour of the applicant no.4. Thereafter, the applicant no.4 executed a satakhat agreement in favour of the respondent no.2. It was clearly mentioned in the satakhat agreement that the property is running in the name of the father of the applicant no.1-late Mr. Bharatkumar Bhaskarrao Mehta. That, the applicant no.1 is the sole legal heir of the deceased Bharatkumar Bhaskarrao Mehta and his mother Dhruvlataben Bharatkumar Mehta. On the death of his parents, the said property was devolved upon the applicant no.1. That, nothing was suppressed by the applicants no.1 and 4, while executing a Page 8 of 32 HC-NIC Page 8 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT satakhat agreement in favour of the respondent no.2 of the said property. That, ingredients of the alleged offence are not attributed, considering the facts of the case. Further, learned advocate Mr. NK Majmudar argued that a public notice was issued in "Saurashtra Samachar" news paper by the applicant no.4 declaring that the "satakhat agreement" dated 2nd June, 2008 of the said property stood cancelled and the amount paid by the respondent no.2 was forfeited. That, the said public notice was issued prior to public notice dated 25th May, 2010 which came to be published by the respondent no.2; as stated in the reply. That, another public notice was issued and explanation was given through a public notice dated 25th May, 2010 declaring that the public notice issued by the respondent no.2 is misleading, as the facts mentioned in the said notice with regard to payment of substantial amount was not true and correct. That, there was Page 9 of 32 HC-NIC Page 9 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT no malafide intention on the part of the applicant. In fact, respondent no.2 failed to make payment as per condition no.4 of the Satakhat Agreement within time limit, and therefore, the said Satakhat agreement could not be acted upon, and hence, it stood cancelled. That, a Civil suit had already been filed by the respondent no.2 and when he failed therein, a false complaint was lodged by the respondent no.2 by giving criminal colours to the civil disputes. Hence, it was requested by him to allow this application by quashing and setting aside the order passed by the learned 5th Additional Senior Civil Judge & Judicial Magistrate First Class, Bhavnagar on 31.01.2011, whereby summons has been issued upon the applicants for the offences punishable under Sections 406, 409, 415, 420, 423, 424 and 114 of the Indian Penal Code in Criminal Case No. 599/2011 (Inquiry case No. 106/2010) and all other consequential proceedings arising Page 10 of 32 HC-NIC Page 10 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT therefrom.
6. Learned APP Mr. KP Raval appearing on behalf of the respondent no.1 has strongly objected to the arguments advanced by the learned advocate appearing on behalf of the applicants and submitted that since ad-interim relief has been granted by this court in favour of the applicants, the investigation could not be completed by the Investigating Agency. That, to find out the correct facts and truth into the dispute between the parties, investigation should be permitted to proceed and thereafter, a clear picture would come out on the record. That, the documentary evidences clearly reflect that the applicant no.1 was having a small portion of property in his name. Whereas, the applicants no.2 and 3 were having larger interest in the said property. That, malafide intention on the part of the applicant is clearly made out from the documentary evidence produced on the record by Page 11 of 32 HC-NIC Page 11 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT disposing property No. 1304 and 1305 after obtaining Rs. 36,21,786/-. That, necessary inquiry was made by the police and as per the report submitted by the Investigating Officer, prima facie case is made out for the offence alleged in the complaint by the applicants. That, revision application was also preferred by the applicant, which came to be dismissed by the learned Court of Sessions. That, discharge application submitted by the applicant was also dismissed by the court below. Considering the facts of the case, no power under Section 482 CrPC could be exercised by this Court. Therefore, it was requested by him to dismiss the application.
7. Per contra, learned advocate Mr. A.D. Shah appearing on behalf of the respondent no.2 has vehemently submitted that present applicant has resorted to revisional jurisdiction against the order of issuance of process, being Criminal Revision Page 12 of 32 HC-NIC Page 12 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT Application No. 41/2011, which was disposed of on 18th April, 2011. That, discharge application preferred by the applicant nos. 2 and 3 before the court of learned 5th Judicial Magistrate First Class, Bhavnagar is pending. That, request of the applicants no.1 to 3 for exempting them before the trial Court was dismissed by the Court below, and thereafter, they preferred Criminal Revision Application No. 110/2011, which came to be rejected on 18th October, 2011. That, applicants are trying to delay the proceedings of Criminal Case No. 599/2011 on various untenable grounds. That, the learned trial court has considered the report of the investigation under Section 202 CrPC conducted by the Police Officer, and thereafter, has passed an order issuing the process. That, one of the conditions in the agreement to sell dated 2nd June, 2008 was about the 'title clearance certificate' to be obtained by the applicants, which has not been Page 13 of 32 HC-NIC Page 13 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT complied with and only with a view to cause wrongful loss of huge amount of Rs. 36,21,786/- by publishing a notice of forfeiture of the amount and cancellation of the agreement for sale. That, notice was served by the respondent no.2 to the applicants no. 1 to 3 on 1st June, 2010, which was not replied by them. That, malafide and dishonest intention of applicants and their attempt to dispose of the land to someone else proves prima facie ingredients of the offence alleged in the complaint. That, frequent requests were made time and again by the respondent no.2 for execution of the sale deed, but no steps were taken by the applicants. On the contrary, a Caveat Application No. 113/2010 was filed by the applicant no.4 before the Civil Court. That, another complaint was filed with Bhavnagar 'C' Division Police Station, Bhavnagar, being C.R. No. II-84/2010 by the respondent no.2 against the applicant no.4 on 29th April, 2010. Reply to a public Page 14 of 32 HC-NIC Page 14 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT notice was given by the respondent no.2 in a public newspaper on 25th May, 2010 about existence of agreement to sell and payment to the tune of of Rs. 36,21,786/-. That, assurance was given by the applicants to get title clearance certificate of the land in dispute, however, they failed to obtain title clearance certificate. Till obtaining the title clearance certificate of land in dispute, there was no question of selling of the land by the applicants. It is further argued that according to revenue records, applicant no.1 was having only 241.75 sqr meter out of total land admeasuring about 854.17 sqr. meter. That, the applicants no. 2 and 3 have executed power of attorney in favour of the applicant no.4 and thereafter, the applicant no.1 released his right by an affidavit in favour of the applicants no.2 and 3 on 25th November, 2006. The applicants no.2 and 3 disclosed also that they have no any right, title or interest in the said land Page 15 of 32 HC-NIC Page 15 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT admeasuring about 854.17 sqr. meter. That, reference of entry no. 2543 dated 31st January, 2011 subsequently reflects in the report of the Investigating Officer. That, cognizance is taken by the learned JMFC in pursuance of the report of the Investigating officer under Section 202 CrPC, and therefore, dispute as sought to be converted into criminal offence cannot be examined at this stage. That, issuing public notice of forfeiting the earnest money on non compliance of the terms and conditions for making payment before due date also reflects guilty mind of the applicants, when they have violated the condition of getting title clearance certificate, as per the conditions of the agreement to sell. That, question of execution of the sale deed, as per terms and conditions could not have been fulfilled. That, complainant has prima facie made out commission of offence by the applicants. In support of his arguments, learned advocate Mr. A.D. Page 16 of 32 HC-NIC Page 16 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT Shah appearing on behalf of the respondent no.2 has relied on the following judgments:
(i) Agricultural & Processed Food Products v.
Oswal Agro Furane Limited & Ors., reported in AIR 1996 SC 1947.
(ii) Iridium India Telecom Limited v. Motorola Inc. & Ors., reported in 2011(1) SCC 74 [Para 66, 67, 72, 76, 77 and 78]
(iii) M/s. Medchl Chemicals & Pharma Pvt. Ltd., v. M/s. Biological E. Ltd. & Ors., reported in AIR 2000 SC 1869 [Para 14, 15, 17 and 19] Ultimately, it was requested by him to dismiss the present application.
8. Having heard learned advocates appearing on behalf of the respective parties and documentary evidence relied on by both the sides, it appears from the record that the property, being Ward No. 3 Sheet No. 63 situated in survey no. 1304 and 1305, an agreement to sell was executed by the applicant Page 17 of 32 HC-NIC Page 17 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT no.4, as a power of attorney holder of the applicant no.1 in favour of the respondent no.2-complainant. As per the facts, the respondent no.2 failed to make payment as per the condition no.4 of the agreement to sell within the time limit, and therefore, the said agreement to sell could not have been acted upon, and therefore, a notice dated 3rd May, 2010 was issued by the applicant no.4 in respect of cancellation of agreement to sell executed in favour of the respondent no.2 and the said notice was duly served upon him. Thereafter, it appears from the record that applicant no.4 had also published a public notice in a newspaper namely "Saurashtra Samachar" declaring that agreement to sell (satakhat) dated 2nd June, 2008 in respect of the aforesaid property stands cancelled and the amount paid by the respondent no.2 stood forfeited. It also appears from the record that the complainant has filed Regular Civil Suit No. 258/2010 before the Page 18 of 32 HC-NIC Page 18 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT learned Civil Judge (S.D.), Bhavnagar for declaration and permanent injunction against the present applicants praying that the applicants may be restrained from selling, transferring, mortgaging, gifting the property in question in favour of third party permanently. It also appears that the learned Civil Judge (S.D.) Bhavnagar was pleased to pass an order dated 16th June, 2010 returning the suit to the plaintiff for presenting it before the court having jurisdiction, as per the provisions of Order 7 Rule 10 of the Code of Civil Procedure. Thereafter, it appears that the aforesaid civil suit was converted as Special Civil Suit No. 90/2010 and in that suit, an order was passed below ex. 8, whereby the plaintiff ie., the respondent no.2 was ordered to pay necessary and sufficient court fees as per the market value of the property in question. On 19th September, 2010, the plaintiff-respondent no.2 was directed to deposit the court fees on the value of Page 19 of 32 HC-NIC Page 19 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT the property in question of Rs. 1,21,21,786/- (Rupees One Crore Twenty One Lacs Twenty One Thousand Seven Hundred Eighty Six only). That, the respondent no.2-complainant remained unsuccessful in the suit proceedings, and thereafter, it appears that the present complaint came to be filed, which has been numbered as Inquiry Case No. 106/2010 for the offence punishable under Sections 406, 409, 415, 420, 423, 424, and 114 of the Indian Penal Code against the present applicants. On 27th October, 2010, the court below was pleased to pass an order under Section 202 CrPC for making police inquiry within a period of 30 days. It appears from the record that a report was submitted by the concerned police authorities, pursuant to the aforesaid order passed by the Court below and on the basis of the said report dated 31st January, 2011, the learned 5th JMFC, Bhavnagar was pleased to pass an order issuing process and thereafter, it was Page 20 of 32 HC-NIC Page 20 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT numbered as Criminal Case No. 599/2011. It also appears that against the order passed by the learned 5th JMFC, Bhavnagar in Criminal Case No. 599/2011, the applicant no.4 has preferred Criminal Revision Application, being No. 41/2011 before the court of learned District and Sessions Judge, Bhavnagar. The said criminal revision application came to be disposed of by an order dated 18th April, 2011 permitting the applicant no.4 to submit discharge application, if he desires so. The applicants no.2 and 3 also preferred application praying for discharging them from the proceedings of Criminal Case No. 599/2011. The said discharge application appears to be pending before the Court below. It appears that during the pendency of discharge application, Application [Exhibit 13] came to be preferred by the applicants seeking exemption from remaining present in the criminal proceedings pending against them and the said Page 21 of 32 HC-NIC Page 21 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT application was granted on a condition that they should remain present on the next date of hearing. The order passed below Ex. 13 dated 12th August, 2011 was challenged in Criminal Revision Application No. 110/2011 by the applicants no.1 to
3. Thereafter, the said revision application was dismissed by the Sessions Court on 18th October, 2011. It appears from the document-agreement to sell, the property in question was transferred by way of this document in favour of the respondent no.2, which was ultimately cancelled stating that the respondent no.2 failed to make payment as per condition no.4 of the agreement to sell. It is impressed that the respondent no.2-complainant had failed to avail legal remedy of filing civil suit. Prima facie, it appears that the alleged dispute is of civil nature. However, a criminal complaint is filed by the respondent no.2 with a view to pressurize the applicants. Whatever be the entry made in the Page 22 of 32 HC-NIC Page 22 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT city survey office, either in favour of the applicants or any other persons, cannot be converted in a criminal nature of offence. Merely, the title clearance certificate was not obtained by the applicants, and therefore, the respondent no.2 did not make the entire payment to the applicants as per the agreement to sell of the property would never be a ground to file a criminal complaint against the present applicants. The entire dispute prima facie appears to be of civil nature, which is converted by the respondent no.2 in a criminal complaint. The respondent no.2 was served with a notice by the applicants' side as well as published through a public notice in daily news paper "Saurashtra Samachar" informing about forfeiting the agreement to sell.
9. Before evaluating the contentions advanced on behalf of the parties, it will be apt to briefly analyze the scope and ambit of inherent powers of the High Page 23 of 32 HC-NIC Page 23 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT Court. Section 482 CrPC envisages three circumstances under which inherent jurisdiction may be exercised viz., (i) to give effect to an order under the Code; (ii) to prevent an abuse of the process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide, but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.
10. Whether an offence has been disclosed or not Page 24 of 32 HC-NIC Page 24 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT must necessarily depend on the facts and circumstances of each particular case. In considering whether an offence into which an investigation is made or to be made is disclosed or not, the Court has mainly to take into consideration the complaint or the FIR and the Court may in appropriate cases, take into consideration the relevant facts and circumstances of the case. On a consideration of all the relevant materials, the Court has to come to a conclusion whether an offence is disclosed or not. If on consideration of relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with investigation into the offence and will generally allow investigation into the offence to be completed for collecting materials for proving the offence. If, on the other hand, the Court on consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the Court to interfere Page 25 of 32 HC-NIC Page 25 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT with any investigation to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual.
11. This Court would like to consider whether the allegations in the complaint makes out a case of 'criminal breach of trust' as defined under Section 405 of the Indian Penal Code.
The section reads as follows:
"405. Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust'
12. Now, this Court would like to profitably refer to Section 415 of Indian Penal Code, which deals with Page 26 of 32 HC-NIC Page 26 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT 'cheating', and reads thus:
415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'.
Explanation.--A dishonest concealment of facts is a deception within the meaning of this Section. It is plain from a bare reading of the Section that to hold a person guilty of cheating, as defined in Sec. 415 of the IPC, it is necessary to show that at the time of making the promise he had fraudulent or dishonest intention to retain the property or to induce the person so deceived to do some thing which he would not otherwise do.
13. Learned advocate Mr. A.D. Shah appearing on behalf of the respondent no.2 has relied upon a decision rendered in case of Smt. Nagawwa v. Page 27 of 32 HC-NIC Page 27 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT Veeranna Shivalingappa Konjalgi & Ors., reported in (1976) 3 SCC 736, wherein, it is held by Hon'ble Supreme Court that Magistrate only to be satisfied if a prima facie case exists. Accused has no standing in proceedings under Section 202 CrPC. Here of-course, the applicants had challenged the order passed by the learned JMFC under Section 202 CrPC by preferring revision application, but they could not succeed. In the facts of the case on hands, there is no scope of examining the case under Section 202 CrPC, while this being an application preferred under Section 482 CrPC.
14. In case of Fiona Shrikhande v. State of Maharashtra & Anr, reported in (2013) 14 SCC 44, wherein in the complaint, the process was ordered to be issued under Section 202 and 204 CrPC and Hon'ble Supreme Court has held that Magistrate has to arrive at prima facie satisfaction as to whether there are grounds for proceeding, by reading Page 28 of 32 HC-NIC Page 28 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT complaint as a whole, without adverting to defence of accused, if any, and without going into merits of the case. Magistrate has to examine prima facie truth and inherent probabilities apparent on allegations made in complaint so as to be satisfied that prima facie ingredients of alleged offence are made out from complaint for issuance of process. Once Magistrate by exercising his discretion forms an opinion regarding existence of ground for proceeding, the higher court should not substitute its own discretion for that of Magistrate. Here, in this proceedings, the order issuing process or summons by the learned JMFC is not to be examined or challenged by the applicants. Exercising of powers under Section 482 CrPC is quite put within the powers under Section 202 CrPC. Hence, these judgments would not applicable to the facts of this case.
15. In case of Iridium India Telecom Limited v. Page 29 of 32 HC-NIC Page 29 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT Motorola Incorporated & Ors., reported in (2011) 1 SCC 74, while examining the provisions of Sections 415, 24, 23 and 25 of the Penal Code, 1860, it is observed by the Hon'ble Supreme Court that such deception must necessarily produce inducement to part with or deliver property which the complainant would not have parted with or delivered, but for inducement resulting from the deception. From the record, this Court is of the view that dispute alleged in the complaint appears to be civil in nature, and therefore, this judgment would hardly apply to the facts of the present case.
16. In case of Medchl Chemicals & Pharma Pvt. Ltd v. Biological E Ltd, reported in 2000 Law Suit (SC) 406, wherein a complaint was lodged under sections 120B, 418, 415 and 420 of the Indian Penal Code alleging that the accused caused loss to the complainant by intentionally false assurance and misrepresentation. This complaint was quashed by Page 30 of 32 HC-NIC Page 30 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT the High Court on the ground that civil remedy is only a remedy available. The Apex court has held that it was not proper to quash the complaint. The jurisdiction under Section 482 CrPC is to be exercised in exceptional cases for quashing the complaint at initial stage. The jurisdiction as such is rather limited and restricted, and its undue expansion is neither practicable nor warranted.
17. From the facts of this case, this Court is of the view that it is of-course a civil dispute between the parties and the complainant-respondent no.2, whereas failed to get result in his favour in a civil proceedings, had filed a criminal complaint.
18. Learned advocate Mr. NK Majmudar appearing on behalf of the applicants has relied upon certain judgments as to when powers under Section 482 CrPC can be exercised by the High Court, in particular facts of the case, applying the ratio laid down by the High Courts or the Apex Court. The Page 31 of 32 HC-NIC Page 31 of 32 Created On Sat Aug 12 10:45:20 IST 2017 R/CR.MA/15738/2011 CAV JUDGMENT judgments relied upon by the learned advocate appearing on behalf of the applicants would not require any further discussion, as this court is prima facie of a view that the dispute between the parties is civil in nature.
19. In view of the foregoing reasons, the application succeeds. The impugned complaint, Criminal Case No. 599/2011 (Inquiry Case No. 106/2010) and any other consequential proceeding arising therefrom pending in the court of 5th Additional Senior Civil Judge & Judicial Magistrate First Class, Bhavnagar, qua the present applicants is hereby quashed and set aside. Accordingly, this application stands allowed. Rule nisi made absolute to the aforestated extent with no order as to costs.
(B.N. KARIA, J.) ksdarji Page 32 of 32 HC-NIC Page 32 of 32 Created On Sat Aug 12 10:45:20 IST 2017