Gujarat High Court
M/S vs Arun
Author: M.R. Shah
Bench: M.R. Shah
CR.MA/335/2003 5/ 5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 335 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 1. Whether Reporters of Local Papers may be allowed to see the judgment ? No 2. To be referred to the Reporter or not ? No 3. Whether their Lordships wish to see the fair copy of the judgment ? No 4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5. Whether it is to be circulated to the civil judge ? No ========================================= M/S DAEWOO MOTORS INDIA LTD & 3 - Applicant(s) Versus ARUN MOTORS , A PARTNERSHIP FIRM THRO'ARUN HIRABHAI CHOKSI & 1 - Respondent(s) ========================================= Appearance : MR BALRAM D JAIN for Applicant(s) : 1 - 4. MR JR SHAH for Respondent(s) : 1, MR LB DABHI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 2, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 03/02/2012 ORAL JUDGMENT
[1.0] Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicants herein - original accused Nos.1, 2, 4 and 5 to quash and set aside the impugned criminal proceedings being Criminal Case No.6164/2002 pending in the Court of learned Chief Judicial Magistrate, Surat filed by respondent No.1 herein - original complainant for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC").
[2.0] Respondent No.1 herein - original complainant has lodged / filed the impugned private complaint being Criminal Case No.6164/2002 in the Court of learned Chief Judicial Magistrate, Surat against the applicant herein - original accused Nos.1, 2, 4 and 5 and others for the offences punishable under Sections 406, 420 and 114 of the IPC mainly alleging inter-alia that a sum of Rs.3,15,545.87 is due and payable by the complainant from the applicants which is lying with the applicants as security deposit. In the said complaint, the learned Magistrate has directed to issue process against the applicants and others for the offences punishable under Sections 406, 420 and 114 of the IPC. Hence, the applicants herein - original accused Nos.1, 2, 4 and 5 have preferred the Criminal Miscellaneous Application under Section 482 of the CrPC.
[3.0] Shri Balram D. Jain, learned advocate appearing on behalf of the applicants has vehemently submitted that as such the applicants herein have not committed any offence as alleged. It is further submitted that as such the dispute is purely of a civil nature which is tried to be converted into criminal which is nothing but abuse of process of law and Court. It is submitted that as such for the return of Rs.3,15,545.87, which the complainant is claiming, the original complainant had already instituted a suit in the year 2000 before the competent Civil Court and thereafter after a period of two years and after the applicants filed number of complaints against the complainant in Patiala House Court, at New Delhi for the offence under Section 138 of the Negotiable Instruments Act, 1881, the impugned complaint has been filed only with a view to harass the applicants. Therefore, it is requested to allow the present application.
[4.0] Shri J.R. Shah, learned advocate appearing on behalf of respondent No.1 - original complainant has chosen to remain absent. On earlier occasions also, number of times the matter was adjourned all throughout and mostly due to non-availability of the learned advocate appearing on behalf of respondent No.1 - original complainant. Today also, Shri J.R. Shah, learned advocate appearing on behalf of original complainant has chosen to remain absent. Under the circumstances, this Court has no other alternative but to proceed further with the hearing of the present application ex-parte.
[4.1] Shri L.B. Dabhi, learned Additional Public Prosecutor has requested to pass appropriate order considering the facts and circumstances of the case.
[5.0] Heard Shri Balram Jain, learned advocate appearing on behalf of the applicants - original accused Nos.1, 2, 4 and 5 as well as Shri Dabhi, learned Additional Public Prosecutor appearing on behalf of the State and considered the averments and allegations in the impugned complaint. It is to be noted that the original complainant has filed the impugned complaint against the applicants for the offences punishable under Sections 406, 420 and 114 of the IPC solely alleging inter-alia that a sum of Rs.3,15,545.87 which is lying with the applicants by way of security deposit is due and payable to the complainant. It is required to be noted that for the very amount the complainant has already instituted a Civil Suit which is pending before the Civil Court and which has been filed in the year 2000. After a period of two years the impugned complaint has been filed against the applicants for the amount due and payable for which the complainant has already instituted the suit in the year 2000. It also appears that as such eight complaints are filed by the applicants against the complainant for the offence under Section 138 of the Negotiable Instruments Act, 1881 at Patiala House Court, New Delhi and thereafter the impugned complaint has been filed. Thus, it appears that not only the impugned complaint is malafide and vexatious but the dispute seems to be of a civil nature which is tried to be converted into a criminal one by filing such a complaint. Under the circumstances, the impugned complaint is abuse of process of law and the Court which requires to be quashed and set aside in exercise of powers under Section 482 of the CrPC.
[6.0] In view of the above and for the reasons stated above, present Criminal Miscellaneous Application succeeds and impugned criminal proceedings being Criminal Case No.6164/2002 pending in the Court of learned Chief Judicial Magistrate, Surat is hereby quashed and set aside so far as the applicants herein - original accused Nos.1, 2, 4 and 5 are concerned. However, it is observed that the Civil Suit filed against the applicants by the original complainant shall be decided and disposed of in accordance with law and on merits without in anyway being influenced by the present order. Rule is made absolute accordingly.
(M.R. Shah, J.) menon