Gujarat High Court
Kishorkumar Jayprakash Agarwal vs State Of Gujarat on 9 October, 2018
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/17120/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17120 of 2018
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KISHORKUMAR JAYPRAKASH AGARWAL
Versus
STATE OF GUJARAT
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Appearance:
MS KRUTI M SHAH(2428) for the PETITIONER(s) No. 1
MR HARDIK A DAVE(3764) for the RESPONDENT(s) No. 2
MR HK PATEL, ADDITIONAL PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 09/10/2018
ORAL ORDER
1. RULE. Learned Additional Public Prosecutor Mr. H.K. Patel waives service of Rule on behalf of the respondent-State and learned Advocate Mr. Hardik A. Dave waives service of Rule on behalf of the respondent No.2 (original complainant).
2. This application is filed under Section 482 of CR.P.C. for quashing of First Information Report bearing C.R. No.I-140-2015 registered with Kadodara GIDC Police Station, Surat Rural. The FIR is registered for offences under Sections 199, 406, 409 420, 465,468, 471,476 and 120(B) of the Indian Penal Code. In connection with this offence the applicant was arrested and enlarged on bail and therefore, the chargesheet came to be filed on 11.06.2018. It is at this stage that the present application is filed for quashing on the merits as no offence is made out.
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R/CR.MA/17120/2018 ORDER
3. Learned advocate for the applicant submits that the applicant was founder of an NGO namely Noorie Foundation, which is a registered micro insurance agent for LIC. The foundation was engaged in the work of upliftment and right of the poor and to assist them to receive benefits under the benevolent scheme framed by the government. It is submitted that for giving assistance to the poor people the foundation used to charge membership fees. In the course of its working on account of some misunderstanding the FIR came to be registered. Pending this application a compromise has been arrived at between the parties and therefore it is jointly requested that the FIR and the consequential proceedings may be quashed.
4. Learned advocate for the respondent no.2 original complainant submits that the complainant has filed an affidavit to the effect that the agreement is arrived at between the parties and there is no grievance against the applicant and that there is no objection if the FIR and consequential proceeding is quashed.
5. To this, learned Additional Public Prosecutor strongly opposes the quashing of the First Information Report. He submits that the First Information Report is registered for the offences of a very serious nature. The applicant has misrepresented to the public at large about the likely benefits of the benevolent Government Scheme even though no such Government Schemes have been floated. It is argued that for gaining the confidence of the public, he has Page 2 of 7 R/CR.MA/17120/2018 ORDER misused the logo of the Life Insurance Corporation of India, though the Life Insurance Corporation of India in a written communication had prohibited him from using so on his letter head. It is submitted that any interference at this stage would encourage people of similar mentality and may see rise in offences of such nature.
6. Learned Additional Public Prosecutor has relied upon the judgment in the case of Parbhatbhai AAhir alias Parbhatbhai Bhimsinhbhai Karmur and Others v. State of Gujarat and Another reported in (2017) 9 SCC 641 to contend that the Supreme Court has declined to exercise powers under Section 482 of the Cr.P.C. on the ground of settlement where the offence is of serious nature and having a large scale effect.
7. Learned advocate for the applicant as well as respondent no.2 therefore produced on record the affidavits of all these witnesses who were affected. The affidavits of all these witnesses also indicate that the witnesses have arrived at settlement with the applicant and are not inclined to proceed any further with the prosecution.
8. Learned APP submits that the applicant is also facing another FIR of similar nature. It is submitted over and above the receiving of money from the complainant and witnesses the applicant is also charge-sheeted for making of false documents in the form of letter heads bearing the identity number given by LIC and other seals as Page 3 of 7 R/CR.MA/17120/2018 ORDER if such seals are of some authorities. It is also submitted that earlier this High Court has even rejected regular bail of this very applicant.
9. Having considered the rival submissions of the parties having considered the nature of allegations and the gist of the chargesheet and more particularly the documents on record which consists of the affidavit of the original complainant as well as the other witnesses who are named as witnesses in the chargesheet, wherein it is reflected that the complainant as well as the witnesses who are the members of Noorie Foundation by paying the membership fees, are not inclined to prosecute the accused applicant any further. Moreover, even from the chargesheet it appears that though the applicant has been charge-sheeted for the offences as mentioned above there is nothing on record to even indicate that applicant has defrauded any person and or siphoned of any money from the beneficial scheme of the government in the name of the members of said Noorie Foundation.
9. The Court has perused the chargesheet papers. Nowhere it is appearing on record that by way of some misrepresentation before the public at large and thereafter, on their behalf before the State Government or any other Government Agency, the applicant has derived any financial benefit or pocketed any amount out of such benefit or siphoned of any money under the beneficiary scheme or received in the name of the beneficiary or has been misused by the applicant for his personal benefit. Insofar as the witness named in Page 4 of 7 R/CR.MA/17120/2018 ORDER the chargesheet, the applicant has produced on record with identity, the affidavit of each such witness who have stated on oath before this Court that they have no intention to prosecute or objection to the FIR proceedings to continue against the applicant. It is submitted that out of 929 witnesses, all the witnesses barring three have filed their affidavits before this Court. It would be beneficial to reproduce the contents of one such affidavit.
"I, the undersigned, JASHIBEN NARESHBHAI GHOGHABHAI NAGVADIYA, Aged : Major and Witness No. 57 in the Charge-Sheet being Criminal Case No.531 of 2018 pending before Ld. Additional Chief Judical Magistrate, Kathor submitted pursuant to the FIR filed by Kokilaben w/o Rameshbhai Mangaldas Parmar vide Ist C.R. No. 140 of 2015 before Kadodara GIDC Police Station, Surat who is Respondent No. 2 in the Petition filed by the KISHORBHAI JAIPRAKASH AGRAWAL for the purpose of Quashing of the above said F.I.R and Charge-Sheet state on oath and solemly affirm that;
I say and submit that due to intervention of the respected members of the society and family, mutual understanding and agreement is arrived between me and Original Accused persons in the above said F.I.R and Charge-Sheet i.e. KISHORBHAI JAIPRAKASH AGRAWAL i.e. Applicant/Accused and now I don't have any grievance with him.
I further state now I intend that I have no objection if the F.I.R and Charge-Sheet and all subsequent proceedings are Quashed and filed against KISHORBHAI JAIPRAKASH AGRAWAL Applicant/Accused.
I state that what is stated herein above is true and correct to the best of my knowledge, information and belief and I believe the same to be true."
10.In the judgment of the Apex Court in the case of PARBATBHAI AAHIR (supra), the Apex Court has laid down the broad principles to be followed while exercising powers under Section 482 of CR.P.C. In paragraph 16.6 the Apex Court has given precedents to Page 5 of 7 R/CR.MA/17120/2018 ORDER the public interest in case of serious offences and laid down that in the offence with heinous or serious nature such as murder, rape and ducaiti cannot be quashed even if the victim or the family of the victim may have settled the dispute as such offences do not remain private in nature but have serious impact on the society at the same time the Apex Court in paragraph 16.7 and 16.8 has stated that as distinguished from the serious offences there can be criminal cases which have overwhelming or predominant element of Civil dispute or such criminal cases may be involving offences arising out of commercial, financial, mercantile partnership or similar transaction with an essentially Civil flavor may in an appropriate situation be quashed where parties have settled disputes.
11.This being one such case which would fall in the category as mentioned in paragraph 16.7 and 16.8 of the Apex Courts judgment. Therefore relying upon the affidavit of the complainant as well as affected witnesses this Court is of the view that no useful purpose will be served in prosecuting the applicant any further in connection with the impugned FIR. The FIR bearing No. CR. No.I- 140-2015 and the chargesheet are therefore hereby ordered to be quashed.
12.The Court has also considered the submissions of the learned advocate for the applicant as well as the respondent no.2, that though the essence of settlement is not mentioned in the affidavit they are instructed to state at bar that the applicant has honored Page 6 of 7 R/CR.MA/17120/2018 ORDER his financial liabilities towards the complainant and the affected witnesses to their satisfaction.
13.Before parting, it is hereby recorded that the observations in this order are restricted to the present C.R. No.140-2015 only and will have no bearing whatsoever on the other offences that may have been filed and or pending at any stage against the present applicant.
14.The application is allowed. The FIR bearing CR. No.I-140-2015 and chargesheet as well as consequential proceedings in Criminal Case No.531/2018 pending in the Court of the learned Judicial Magistrate First Class are therefore hereby ordered to be quashed.
15.Rule is made absolute. Direct service is permitted.
Sd/-
(A.Y. KOGJE, J) Caroline Page 7 of 7