Gujarat High Court
Patel Bhagwanji Bhikhabhai vs Nivasbhai Pranlalbhai Vyas on 5 February, 2013
Author: K.M.Thaker
Bench: K.M.Thaker
PATEL BHAGWANJI BHIKHABHAI....Applicant(s)V/SNIVASBHAI PRANLALBHAI VYAS R/CR.MA/2946/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 2946 of 2012 ================================================================ PATEL BHAGWANJI BHIKHABHAI....Applicant(s) Versus NIVASBHAI PRANLALBHAI VYAS & 2....Respondent(s) ================================================================ Appearance: MR AI SURTI, ADVOCATE for the Applicant(s) No. 1 MR SHIRISH R PATEL, ADVOCATE for the Respondent(s) No. 1 NOTICE NOT RECD BACK for the Respondent(s) No. 3 NOTICE SERVED for the Respondent(s) No. 2 MS ARCHNA RAVAL APP PROSECUTOR for the Respondent(s) No. 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 05/02/2013 ORAL ORDER
Heard Mr. Surti, learned advocate for the petitioner, Mr. S.R.Shukla, learned advocate, for Mr. S.R.Patel, learned advocate for the respondent No.1 and Ms. Raval, learned APP for the respondent State.
2. In present petition, under Section 482 of the Code of Criminal Procedure, the petitioner has prayed, inter alia, that:-
6(B) Your Lordships be pleased to allow this petition to quash and set aside proceedings against the Original Accused in complaint no.65/2010 and confirm 'B' Summary in FIR 22 of 2008 given by Talala police station before Learned Judicial Magistrate First Class Court at Talala.
(C) That during the pendency of this Petition, this Hon'ble Court may be pleased to pass appropriate Order staying the proceedings in Criminal Case No.65/2010 before Judicial Magistrate First Class Court of Talala, in the interest of justice.
(D) Record and proceedings of Criminal Case No.65/2010 before Judicial Magistrate First Class Court at Talala may be called for in the interest of justice.
2.1 On perusal of the complaint, it emerges that the offence alleged to have been committed by the petitioner is under Sections 406, 420 and 114 of IPC. It also emerges from the record that the complainant alleged that the seeds sold / supplied to him did not germinate and by selling such seeds, the petitioner / accused cheated the complainant. It is also alleged that the said action of the accused amounts to criminal breach of trust as well.
2.2 In present proceedings, the petitioner has prayed that the proceedings against the original accused in complaint No.65 of 2010 may be quashed.
The offence alleged in the impugned FIR is under Sections 420 and 114 of IPC.
3. However, it is pertinent that the petitioner has not challenged the order dated 6.2.2010 passed by the learned Magistrate upon 'B' Summary report filed by the Investigating Officer. The petitioner has also not challenged the order dated 27.9.2011, which came to be passed by the revisional Court, in Criminal Revision Application No.63 of 2010 confirming the order of the learned Magistrate, which was preferred by the petitioner against the order dated 6.2.2010, and without challenging the said two concurrent orders, the petitioner has, in present petition, prayed that the proceedings of Criminal Case No.65 of 2010 may be quashed.
3.1 In absence of any challenge, the Court can not interfere with and set aside the said orders. Any request to appropriately amend the petition is also not made even at the time of hearing.
4. So far as the relevant facts involved in present petition is concerned, it emerges from the record that the original complainant appears to have purchased seeds of lady finger of Shravan variety from the petitioner, i.e. accused Nos. 1 and 2. Subsequently, the complainant found that the said seeds were not of proper quality and the accused No.1 cheated him by selling the seeds of inferior quality which did not germinate.
4.1 The complainant, therefore, lodged a complaint alleging offence under Sections 406, 420 and 114 of the IPC.
4.2 The said complaint is registered as FIR No.I-27/2008.
4.3 Subsequently, the Investigating Officer conducted necessary inquiry and upon completion of the inquiry, the Investigating Officer submitted 'B' Summary report in the Court of learned Magistrate on or around 6.11.2008.
4.4 The learned Magistrate, after considering the said report, did not accept 'B' Summary report and passed the order dated 1.12.2008 directing issuance of notice to the complainant.
4.5 After hearing the concerned parties, the learned Magistrate was pleased to hold that the Investigating Officer was not justified in filing the 'B' Summary report. The learned Magistrate, for the reasons recorded in the order dated 6.2.2010, did not accept the 'B' Summary report and after considering relevant aspects and material filed by the Investigating Officer, considered it appropriate to take cognizance and issued summons to the petitioner for the offence under Sections 420 and 114 of the IPC.
4.6 However, allegation about offence under Section 406 were not accepted, i.e. to that extent process is not issued.
4.7 Upon feeling aggrieved by the said order, the petitioner accused carried the matter in revision by filing Criminal Revision Application No.63 of 2010, however, the learned Revisional Court, upon consideration of entire aspect and after hearing the parties, confirmed the order of the learned Magistrate and rejected the revision application by order dated 27.9.2011.
4.8 Thereafter, the petitioner has preferred present petition.
5. As mentioned above, in the prayer clause, the petitioner has not prayed for relief against the orders passed by the learned Magistrate as well as learned revisional Court.
6. Mr. Surti, learned advocate for the petitioner, has submitted that the impugned FIR does not make out any ingredients of offence under Sections 420 and 114 of the IPC. He also submitted that since the alleged offence is under Special Act, FIR is not maintainable and deserves to be quashed. He also submitted that the Investigating Officer does not have expertize to decide anything about the quality of seeds. Learned advocate for the petitioner also submitted that the petitioner is only a dealer of the product in question and is not the manufacturer and that therefore also, the allegation against the petitioner is not justified and not maintainable. It is also contended that any other complaint with reference to the seeds in question has not been filed. Learned advocate for the petitioner also contended that any offence under the provisions of the Seeds Act, 1966 is not made out. He also contended that since the impugned FIR is filed in connection with the provisions under the Seeds Act alleging offence under the said Act, the police could not have registered the FIR. It is also contended that the proceedings are in nature of abuse of process of law and therefore, proceedings related to Criminal Case No.65 of 2010 may be quashed.
7. Ms. Raval, learned APP, has opposed the petition. She submitted that the learned Magistrate has properly examined the 'B' Summary report and there is no error in the order in not accepting the 'B' Summary report and in taking cognizance and issuing process. She submitted that the said order has also been confirmed by the revisional Court. Therefore, according to learned APP, proceeds related to Criminal Case No.65 of 2010 does not deserve to be quashed.
8. I have heard learned counsel for the contesting parties and carefully examined the record.
9. As mentioned above, present petition has been taken out in face of two concurrent orders.
9.1 Moreover, the said two concurrent orders are not even challenged.
9.2 Meaning thereby, the said orders are accepted by the petitioner.
9.3 Without challenging the said two orders, proceedings (and its continuation) of case No.65 of 2010 are challenged.
9.4 After considering the 'B' Summary report and the material on record, learned Magistrate came to the conclusion that in light of the material which was made available as a result of investigation the Investigating Officer was not justified in submitting the 'B' Summary report. Learned Magistrate has recorded reasons as to why the submission of the 'B' Summary report is not justified.
9.5 The entire aspects has been subsequently considered by the revisional Court.
9.6 After examining the relevant aspects, the revisional Court has found that the learned Magistrate did not commit any error in accepting the 'B' Summary report and therefore, confirmed the order of the learned Magistrate.
9.7 Mr. Surti, learned advocate for the petitioner, in support of his above submissions relied on the decision in the case between Korra Srinivas Rao s/o Krishnamurthy & Anr. v. State of Maharashtra & Ors. [2001 ALL MR (Cri) 697].
In the said decision, the Hon'ble Court has observed in paragraph No.21 thus:-
21. As already stated above, considering the facts that the materials placed before this Court in all these three petitions being not sufficient to disclose cognizable offences by the petitioners, nor the ingredients of section 420 of I.P.C., the investigation carried out by the police authorities is to be held as bad in law and, therefore, is to be quashed. The Apex Court, in State of Haryana and others v/s Ch. Bhajanlal and others reported in AIR 1992 SC 604, has clearly held that the condition which is sine qua non for recording First Information Report is that there must be an information and that information must disclose a cognizable offence.
9.8 Thus, from the observations made by the Hon'ble Court in the decision, above referred to, it emerges that upon examining the material on record, the Hon'ble Court, in light of the material on record and facts of the case, reached the conclusion that the material placed before the Court being not sufficient to disclose cognizable offence by the petitioners, nor the ingredients of section 420 of I.P.C., the investigation carried out by the police authorities deserved to be held as bad in law and therefore, quashed.
9.9 In the cited case, allegation about offence under the provisions of Seeds Act as well as under the Trade and Merchandise Marks Act, 1958 were made and it was in light of the allegations about offence under the said two Special Acts that the observations about non-cognizable offence are made by the Hon'ble Court.
9.10 Whereas in present case, on perusal of the complaint, it emerges that the allegations, essentially, are about alleged offence under Sections 406, 420 and 114 of IPC which, according to the provisions under the Code, are cognizable.
9.11 On the other hand, the Hon'ble Court in the said judgment, while considering the allegations about the offence under Section 420, reached the conclusion, after examining the material on record that, any ingredient of said offence was not made out and offence under Section 420 of IPC was not disclosed. It was in view of such finding that the proceedings were quashed.
9.12 Whereas in present case, upon examination of the material on record, learned Magistrate as well as the revisional Court have found that there is sufficient material to continue the prosecution and ingredients of offence under Sections 420 and 114 of IPC are made out, but ingredients about offence under Section 406 are not made out.
9.13 The quality and/or sufficiency of evidence is not to be examined at this stage.
At this stage and in present proceedings under Section 482 of the Code, this Court cannot examine and decide as to whether the allegation can be proved in light of available evidence and/or the Court is not supposed to embark upon the inquiry whether the allegations in the FIR and the charge-sheet are reliable or not and thereupon the Court is also not supposed to render definite finding about the truthfulness or veracity of allegations. While considering the petition under Section 482, consideration has to be limited to examine whether allegations made in the FIR and the charge-sheet taken on their face value and accepted in their entirety would constitute offence for making out case against the accused or not.
9.14 The limited aspect, which is to be considered is whether there is sufficient material to allow the learned trial Court to continue the proceedings or not.
9.15 On perusal of the material on record, it is not possible to hold that there is no material to allow the Court to continue the proceedings or to hold that the proceedings amounts to abuse of process of law or that any ingredients of Section 420 and/or Section 114 are not made out. The order by learned Magistrate and/or by the learned revisional Court does not suffer from any error or infirmity. Therefore, at this stage, it would not be proper, for this Court, to interfere with the two concurrent orders, which are not found to be erroneous and do not suffer from any infirmity.
10. Learned counsel for the petitioner has failed to make out any case to persuade and convince this Court to exercise powers under Section 482 of the Code to interfere with the two concurrent orders and to terminate the proceedings of Criminal Case No.65 of 2010.
11. For the foregoing reasons, the petition fails and stands disposed of accordingly. Notice is discharged.
(K.M.THAKER, J.) kdc Page 10