Gujarat High Court
Kalpesh Vinubhai Shah vs State Of Gujarat on 22 July, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/1518/2019 ORDER DATED: 22/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1518 of 2019
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KALPESH VINUBHAI SHAH
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR EKANT G AHUJA(5323) for the Applicant(s) No. 1
MR RAJESH K SHAH(784) for the Respondent(s) No. 2
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/07/2021
ORAL ORDER
1. Rule. Ms. Monali Bhatt, learned Additional Public Prosecutor and Mr. Rajesh K. Shah, learned advocate, waive service of notice of rule on behalf of respondent Nos.1 & 2 respectively.
2. This application has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR being C.R. No.I-238 of 2010 and subsequently C.C. No.1104 of 2011 against the applicant registered with Amraiwadi Police Station, Dist.: Ahmedabad for offfences punishable under sections 406, 420 and 114 of the Indian Penal Code.
3. Mr.Ekant Ahuja, learned advocate for the applicant, submitted that there was a matrimonial dispute between the husband and wife which was not informed by any of the parties to the Bank and on the letter of request to break open the Page 1 of 8 Downloaded on : Sat Jul 24 13:05:21 IST 2021 R/CR.MA/1518/2019 ORDER DATED: 22/07/2021 locker by the wife of the complainant, the Branch Manager, Dena Bank, Maninagar (East), Ahmedabad addressed a communication dated 27.01.2009 to M/s. Godrej & Boyce Mfg. Co. Ltd. to depute a person for breaking open the locker No.A- 119 with the details as noted in the said communication. Mr.Ahuja submitted that on the said letter, the wife of the complainant, Pratiksha P. Mehta, has put up her endorsement of receiving all the contents lying in the locker, which was opened in her presence on the same day i.e. 27.01.2009. Mr.Ahuja submitted that there was nothing on record to show that the relation was strained between the husband and the wife and it was on the request of the wife of the complainant and through Bank communication, as per the procedure, the locker was break opened in the presence of the wife. The Bank had maintained daily registers of the renters' attendance and as per the rules, the Bank, which provides the facilities, has a custodian appointed for SDV (Safe deposit vault) and it becomes the primary duty and responsibility of such custodian to maintain proper records and accordingly, the regular registers were maintained.
3.1 Mr.Ahuja submitted that in the year 1997, complainant opened a locker in Dena Bank Maninagar East Branch and was allotted locker no.119-A, which was initially operated by the complainant and his brother. On 02.07.2004, the name of the complainant's brother was deleted from the said locker facility and as per the record, on 22.09.2004, the complainant got his wife's name incorporated as a second operator in the locker no.119-A. The complainant and his accused wife had operated the Bank locker for 22 times and on 01.11.2007, it was jointly operated. No intimation to the Bank was given by the Page 2 of 8 Downloaded on : Sat Jul 24 13:05:21 IST 2021 R/CR.MA/1518/2019 ORDER DATED: 22/07/2021 complainant about the divorce in December, 2008 and never had the complainant instructed the Bank to restrict accused wife from operating the said locker.
3.2 It is submitted by Mr.Ahuja that the applicant, from the Regional Office, was posted as a Branch Manager of Dena Bank, Maninagar-East Branch, Ahmedabad on 20.10.2008 and the wife of the complainant gave an application for breaking open the locker as on the ground of misplacing the key, and after accepting the application, experts from Godrej company was called and entire procedure was carried out in the presence of the custodian in charge of the locker, who holds the responsibilities of the locker facility, the locker was opened on 27.01.2009.
3.3 It is submitted that, on 16.02.2010, the complainant visited the branch and on having the knowledge of the operation of the locker no.119-A, sought for information and documents, which were provided on the same day, and thereafter, on 08.07.2010, an FIR was registered against the wife of the complainant and the present applicant.
3.4 Mr.Ahuja submitted that the applicant got promotion as MMG-III (Senior Manager)in June, 2010 and was relieved from Maninagar-East Branch on 19.07.2010 and was transferred to Dawn Branch, Bhavnagar as Senior Manager. On 04.02.2011, the applicant came to be arrested by the Amraiwadi Police and because of the arrest, he was suspended from the services by the Bank for imprisonment beyond 48 hours. After the suspension of 45 days, the applicant was reinstated in Bank's service and posted at Zonal Office, Bhavnagar in March, 2011.
Page 3 of 8 Downloaded on : Sat Jul 24 13:05:21 IST 2021R/CR.MA/1518/2019 ORDER DATED: 22/07/2021 On 04.05.2011, charge-sheet came to be filed and Criminal Case came to be numbered as Criminal Case No.1104 of 2011, which is pending before the Metropolitan Court No.7 at Ahmedabad.
4. Mr.Rajesh K. Shah, learned advocate for the respondent no.2, referring to the judgment rendered in the case of Raysingbhai Kanjibhai Gamit and Ors vs. State of Gujarat and Ors. reported in 2016 (3) GLH 244, submits that where the factual foundation for an offence has been laid down, the Court should be reluctant to quash the proceedings, even on the premise that one or two ingredients having not been established prima facie and held that if there is a substantial compliance with the requirement of offence, the High Court should refrain from exercising jurisdiction under Section 482 of the Cr.P.C. Mr.Shah submitted that it was the duty of the Bank Manager to inquire from the complainant regarding the authority of the wife to pray for breaking open the locker and hence, submitted that the discretion may not be exercised. Mr.Shah has relied on paragraph 10 of the above judgment which reads as under :
"10. To arrive at this conclusion, the Court is recalling of the proposition of law propounded by series of decisions of this Court as well as the Hon'ble Apex Court which postulate that disputed questions of fact are not the subject matter of exercise of jurisdiction under Section 482 of the Cr.P.C. It is also held by the Hon'ble Apex Court that simply because the civil litigation is going on between the parties, it is not to be presumed that crime is not committed and must have been lodged just with a view to abuse the process of law. Few relevant decisions of the Hon'ble Apex Court of a recent time worth to be taken note of in the background of present facts and circumstance. In a decision in case of N. Page 4 of 8 Downloaded on : Sat Jul 24 13:05:21 IST 2021 R/CR.MA/1518/2019 ORDER DATED: 22/07/2021 Soundaram V/s. P.K.Pounraj & Anr., reported in (2014) 10 SCC 616, the Hon'ble Apex Court was confronted with the situation that a business transaction took place between the accused persons and the complainant's husband and in respect of that dispute pertaining to business transaction, accused persons along with several other accused entered into the premises and ransacked it. Therein, the controversy was pertaining to recovery of money and therefore, complaint was not justified to be entertained as it is purely of a civil nature. In the background of that circumstance, the Hon'ble Apex Court examined the issue and propounded that power under Section 482 of the Cr.P.C. has to be exercised sparingly and cautiously just to prevent abuse of process of law or to secure the ends of justice. It has also been propounded by the Hon'ble Apex Court that inherent powers should not be exercised to stifle a legitimate prosecution and by holding so, the Hon'ble Apex Court exercising inherent powers set aside the order passed by the High Court and restore the criminal prosecution by further directing the Magistrate to expedite the trial. Relevant extract of the said decision are in Para.13, 14 and 15 which read, thus;
"13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exer-cised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [See State of Haryana v. Bhajan Lal.] The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling cir-cumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceed- ings in the exercise of power under Section 482 CrPC. [See MCD v. Ram Kishan Tohtagi.] An investigation should not be shut out at the threshold if the allegations have some substance. [See Vindo Raghuvanshi v. Ajay Arora] Page 5 of 8 Downloaded on : Sat Jul 24 13:05:21 IST 2021 R/CR.MA/1518/2019 ORDER DATED: 22/07/2021
14. An overall perusal of the materials placed before us makes out a prima facie case against the accused which requires to be decided by conducting a proper trial. At this stage the High Court cannot analyse and meticu-lously consider the evidence and anticipate whether it will end up in conviction or acquittal. This is not the stage to decide whether there is any truth in the allega-tions made but to form an opinion whether on the basis of the allegation a cognizable offence or offences al-leged has been prima facie made out. The guilt or other- wise of the accused can be proved only after conducting a full-fledged trial. In the circumstances, in our opinion, it is not proper for the High Court to interfere with the proceedings and quash the final report submitted by the police.
15. On the other hand we do not think that the High Court was right in opining that the dispute between the parties is civil in nature. This is a case where serious allegations were made against the accused party. Just because the allegations involve the factum of recovery of money it cannot be concluded that the complaint is purely civil in nature when other serious allegations prima facie attract the penal provisions. In our con- sidered opinion the High Court seriously misdirected itself in coming to a conclusion that it is for the competent civil court to decide the said appeal...... In our opinion, in the background and circumstances of this case the High Court should not have exercised the power under Section 482 CrPC which resulted in miscarriage of justice."
5. The facts of the matter suggest that the matrimonial disputes and the fact of divorce were not informed to the Bank. The complainant had not taken any steps to close down the Bank locker or to get the name of the wife deleted from the locker which was jointly operated by them. The complainant as Page 6 of 8 Downloaded on : Sat Jul 24 13:05:21 IST 2021 R/CR.MA/1518/2019 ORDER DATED: 22/07/2021 a husband ought to have proceeded against the wife who by suppressing all the material facts about the relationship between the parties had prayed before the Branch Manager for breaking open the locker on the ground of having lost the key of the joint locker. The applicant as a Bank authority had undertaken the regular process which was required to be adopted by, under such exigencies. The Bank would have no knowledge about the relationship between the parties unless and until informed. The FIR against the present applicant is sheer abuse of the process of the law.
5.1 In the case of Vineet Kumar and Ors vs. State of Uttar Pradesh and Another, reported in 2017 (13) SCC 369, the Apex Court has observed in Paragraph 41 thus :-
"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 : (SCC p. 379, para 102) "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 Page 7 of 8 Downloaded on : Sat Jul 24 13:05:21 IST 2021 R/CR.MA/1518/2019 ORDER DATED: 22/07/2021 the accused and with a view to spite him due to private and personal grudge."
6. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised for securing the ends of justice.
7. In the result, the application is allowed. The impugned first information report being FIR being C.R. No.I-238 of 2010 and subsequently C.C. No.1104 of 2011 against the applicant registered with Amraiwadi Police Station, Dist.: Ahmedabad and the proceedings initiated in pursuance thereof are quashed and set aside. Rule is made absolute.
(GITA GOPI,J) dolly Page 8 of 8 Downloaded on : Sat Jul 24 13:05:21 IST 2021