Gujarat High Court
Kirankumar Ratilal Soni vs State Of Gujarat & Anr on 17 March, 2017
Author: A.J. Shastri
Bench: A.J. Shastri
R/CR.MA/18049/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION
(FOR QUASHING & SET ASIDE FIR/ORDER)
NO. 18049 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J. SHASTRI
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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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KIRANKUMAR RATILAL SONI ....Applicant
Versus
STATE OF GUJARAT & ANR. ...Respondents
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Appearance:
MS HIMANI KINI, ADVOCATE for
MR N K MAJMUDAR, ADVOCATE for the Applicant
MR L.R.POOJARI, APP for the Respondent No.1 - State
MR R J GOSWAMI, ADVOCATE for the Respondent No. 2 - Complainant
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 17/03/2017
ORAL JUDGMENT
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1. The present application is filed under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) seeking quashment of the First Information Report lodged before Naroda Police Station being I-C.R.No.615 of 2011 for the offences punishable under Sections 406 and 420 of the Indian Penal Code, 1860 ('IPC', for short).
2. The case in brief of the prosecution is that the petitioner is doing a small seasonal business. During Diwali festival, he sells fire crackers, during Utrayan he is selling kites and maanza etc. For the purpose of carrying out such seasonal businesses for his livelihood, the petitioner has availed a financial assistance from M/s. Parshwanath Finance Company, Ahmedabad to the tune of Rs.70,000/- since for this very purpose of carrying out business, petitioner wanted to purchase a huge preowned Maruti Van.
2.1 Pursuant to the financial assistance, the petitioner has purchased the pre-owned used Maruti Van bearing Registration No. GJ-01-HC-5369 for consideration of Rs.1,50,000/- and out of the said amount, Rs.70,000/- was paid by way of financial assistance from the said Parshwanath Finance Company and Rs.80,000/- was paid by the petitioner. Pursuant to the said financial assistance, the Maruti Van was hypothicated and pursuant to it, an entry was also posted with respect to hire purchase in registration book related to vehicle and the same was deposited with the company from which financial assistance is obtained.
2.2 It is the case of the petitioner further that petitioner had paid two installments each of Rs.4,700/- immediately after availing financial facility but on account of recession in the Page 2 of 15 HC-NIC Page 2 of 15 Created On Mon Aug 14 15:40:18 IST 2017 R/CR.MA/18049/2011 JUDGMENT business and acute financial crunch the business could not do well as a result of which there was some irregularity in making repayment by way of installments. The loan was not being paid regularly on account of such financial crisis but the same was not at all with an intention not to repay the amount. Despite the fact that, there was no intention to dupe the company nor in any way any dishonest intention to cheat the company, still however straightway an offence came to be registered before Naroda Police Station for the offences punishable under Sections 406 and 420 of the Indian Penal Code and the same was filed immediately on 26.09.2011.
2.3 The case of the petitioner that despite the fact that there is no element of cheating nor any ingredient of offence of cheating is established prima facie, the filing of the complaint would amount to an abuse of process of law and therefore the petitioner had approached this Court by way of aforesaid petition for seeking quashment of the said complaint.
2.4 The matter initially came up for consideration before this Court wherein after hearing the parties, the Court was pleased to pass following order on 18.01.2012.
"Heard the learned advocate for the applicant and the learned APP.
It is submitted that the subject matter of the complaint arises out of alleged non-payment of loan or finance availed by the applicant and the impugned complaint is nothing but abuse of process of law circumventing the legal procedure available to respondent No.2 for recovery of the loan amount by filing appropriate proceeding.
Issue Notice returnable on 16.2.2012.
In the meanwhile, there shall be stay of further investigation of the impugned complaint qua the applicant.
Learned APP waives service on behalf of the State. Direct service is permitted qua the private respondent."Page 3 of 15
HC-NIC Page 3 of 15 Created On Mon Aug 14 15:40:18 IST 2017 R/CR.MA/18049/2011 JUDGMENT Thereafter matter got adjourned from to time at the requests of both the sides as it appears from the record and ultimately it has now come up for final disposal before this Court.
3. Learned advocate Ms.Himani Kini appearing for Mr.N.K.Majmudar, an advocate representing the present petitioner has contended that the filing of the present complaint is nothing but a clear example of a short-cut method of building a pressure upon the petitioner. Instead of taking appropriate legal remedy, straightway only on account of fact that pursuant to the financial crunch some repayment is not regularly made, it is made the subject matter of criminal prosecution and therefore this tantamounts to be a clear abuse of process of law. Ms.Hemani Kini, learned advocate has further contended that at the best from overall reading of the complaint, it appears that this is an issue related to non- payment of regular installment but from the bare reading no element of an offence of cheating is emerged. Ms.Hemani Kini has also pointed out that there is no deceitful representation on the part of petitioner nor any inducement made by the petitioner to financial company nor in any way is establishing ex facie any element of criminal breach of trust which may attract offence under Sections 406 and 420 of the Indian Penal Code and therefore in the absence of such kind of ingredients to allow the criminal machinery to put to motion is nothing but an abuse of process and therefore requested the Court to set aside the impugned complaint. Ms.Hemani Kini has further contended that there is a clear distinguish between mere breach of trust and the breach of promise and that too no Page 4 of 15 HC-NIC Page 4 of 15 Created On Mon Aug 14 15:40:18 IST 2017 R/CR.MA/18049/2011 JUDGMENT element of criminality is established and therefore mere non- payment of EMI regularly would entail at the best civil consequences for which appropriate remedy is very much available to respondent No.2 company and therefore the filing of FIR is nothing but an armed twisting method adopted by the financial company which is time and again deprecated by catena of decisions. Ms.Hemani Kini has further contended that in such a situation in catena of decisions it has been propounded that non-payment of amount would not ipso facto attract any offence and to substantiate her contention she has relied upon few of the decisions delivered by this Court.
(i) 2016 JX (Guj) 685, Jayantibhai K. Pandya vs. State of Gujarat,
(ii) 2015 JX (Guj) 1050, Asif Gulamnabi Munshi vs. State of Gujarat
(iii) 2016 JX (Guj) 900, Anilkumar Umashankar Upadhyay vs. State of Gujarat These decisions will be dealt with at an appropriate stage in the present judgment, however, by referring to these decisions Ms.Himani Kini has contended that no case is made out of any nature which would attract the offence for which prosecution is launched against the petitioner and therefore under the circumstances this is not a fit case in which such criminal prosecution be allowed to precipitated further.
Ms.Hemani Kini has further pointed out that while entertaining this petition, this Court has expressed preliminary view that filing of the complaint amounts to circumventing legal procedure which is otherwise available for recovery of loan and instead of such legal remedy prosecution has straightway lodged case and therefore considering this aspect the stay of further investigation was ordered long back way back in the Page 5 of 15 HC-NIC Page 5 of 15 Created On Mon Aug 14 15:40:18 IST 2017 R/CR.MA/18049/2011 JUDGMENT month of January, 2012 which is undisputedly continued till date. By referring to these submissions learned advocate has prayed this Court to exercise inherent jurisdiction and quash the complaint which is under challenge in this petition.
4. To oppose the stand taken by the petitioner in the present proceedings Mr.R.J.Goswami learned advocate representing respondent No.2 through his colleague has vehemently contended that a financial assistance was very much availed by the petitioner knowing fully well that repayment schedule, which was to be strictly adhered to, and having not paid the repayment schedule, it amounts to clear intention of petitioner of not repaying the loan amount. Mr.Goswami has further contended that this not paying the amount of loan amounts to deliberate intention to evade the liability which undisputedly raised by the petitioner and therefore now it is not open for the petitioner to state before the Court that filing of the complaint amounts to abuse of process. On the contrary, according to Mr.Goswami, this non- payment is abuse of grace shown by respondent No.2 to provide financial assistance to the petitioner. Mr.Goswami has further contended that the conduct on the part of petitioner is quite attract the element of offence under Sections 406 and 420 of the Indian Penal Code and looking to the definition of cheating and criminal breach of trust, the conduct of this petitioner clearly attracts such offence and therefore the same may be allowed to precipitated further to put to its logical end. Mr.Goswami further contended that filing of the FIR is just action on their part since there was an intention to evade liability and therefore looking to the sound proposition of law of issue in exercise of inherent jurisdiction this FIR at the initial Page 6 of 15 HC-NIC Page 6 of 15 Created On Mon Aug 14 15:40:18 IST 2017 R/CR.MA/18049/2011 JUDGMENT stage itself may not be allowed to be throttled. Normally section 482 powers are to be sparingly used and cannot be resorted to, to a particular complaint in the form of FIR and on an elementary stage and therefore under this state of circumstance by narrating such circumstances Mr.Goswami has requested the Court to dismiss the petition. No further submissions have been made.
5. Having heard learned advocates appearing for the respective parties and having gone through the material on record, prima facie, it appears that no doubt financial facility is availed of by the petitioner from respondent No.2 and further picture emerging from the record that on account of financial crunch, as contended, the petitioner had not been in a position to make repayment or maintain the time schedule and that has given rise to file a brief complaint. From the averments contained in the complaint, it appears that general complaint is filed against several persons those who are in default and so far as the case of petitioner is concerned the same is reflecting in para:6 of the complaint in which it appears that on 09.02.2010 the financial assistance is availed of but there appears to be outstanding amount to the tune of Rs.84,600/- and therefore from bare reading of the complaint it transpires that the complaint has been filed in the general form against several persons those who have not made repayment. The only bare assertion is that, cheating is executed by these accused persons but then in which manner the same is executed is not mentioned in the complaint. The bare minimum averments which are required to be mentioned to attract the offence under Sections 406 and 420 of the IPC are completely appearing to be missing in the complaint and Page 7 of 15 HC-NIC Page 7 of 15 Created On Mon Aug 14 15:40:18 IST 2017 R/CR.MA/18049/2011 JUDGMENT therefore such a general complaint amounts to cavalier exercise by respondent No.2 as is visible. Out of those ten persons who have not paid repayment one such person is the present petitioner who approached this Court with a clear assertion that there was neither any intention nor any deceitful representation by him to respondent No.2 while availing financial assistance and to such categorical pleadings it appears from the record that even no reply is filed nor there appears to be any specific representation from respondent No.2 and therefore from the aforesaid circumstance it is visible that prima facie opinion which is generated by this Court in an order dated 18.01.2012 appears to be continued all throughout. Even at the time when this Court is disposing of the matter during final hearing, no specific contention have also been raised and just by submitting without substantiating the matter is dragged to the Court and therefore in such a scenario the Court has undertaken exercise of examining whether from the basic averments as contained in the complaint, any offence is made out or not and for that purpose the averments which are contained in the complaint are appearing only in last paragraph and except there bare assertion no other averments made are coming forth. Now in the context of these averments whether ingredients of offence alleged are established or not, needs to be examined in the context of definition contained in the relevant provisions of the IPC.
6. In the present proceeding what has been alleged in the complaint is that the petitioner has committed an offence under Sections 406 and 420 of IPC. The offence of Section 406 of IPC reads as under.
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"406. Punishment for criminal breach of trust. - Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
The criminal breach of trust is defined under Section 405 of IPC, which reads as under.
"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".
Now to establish this offence of criminal breach of trust a bare minimum requirement which is to be prima facie alleged is the entrustment and whether accused was actuated by dishonest intention or not or misappropriated or converted into his un-use to the detrimental to the persons who entrusted it and therefore the essential requirement is the dishonest intention. Now looking to the bare assertion which are contained in the FIR as far from such requirement at the threshold in addition thereto another offence which has been alleged is Section 420 of IPC which reads as under.
"420. Cheating and dishonestly inducing delivery of property.
- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of Page 9 of 15 HC-NIC Page 9 of 15 Created On Mon Aug 14 15:40:18 IST 2017 R/CR.MA/18049/2011 JUDGMENT either description for a term which may extend to seven years, and shall also be liable to fine."
The word 'cheating' is defined by the Code under Section 415 of IPC which reads as under.
"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". "
And therefore this statutory provisions reflect that there has to be dishonest intention which is sine qua non to hold the accused guilty for commission of such offence. This dishonest intention as we have seen from the averments contained in the complaint is clearly missing in view of the fact that some of the installments have been paid undisputedly but then there appears to be an explanation on oath that financial crunch has dissuaded him to refrain him making regular payment and therefore there appears to be no dishonest intention from the beginning to hold the petitioner responsible for these offences. Normally this is not to be concluded finally, however, there must be some element to be reflected in the complaint as the complaint is foundation. The complaint which has been filed appears to be too general in nature and filed against ten accused persons at a time. Without there being any specific averment as to in which circumstance the offence is committed by the applicant, and therefore this basic primary factor is totally missing from the complaint which is lodged Page 10 of 15 HC-NIC Page 10 of 15 Created On Mon Aug 14 15:40:18 IST 2017 R/CR.MA/18049/2011 JUDGMENT against the applicant and therefore it appears the basic requirement is ex-facie this basic element is missing which can not be countenanced against the applicant. In fact, it appears that an attempt is made against those defaulter to apply pressure so that repayment can take place. Had there been any serious concern, then some steps could have been taken of taking legal measure which is reflected in order dated 18.01.2012 passed by this Court. A further inference can be drawn in view of the fact that though this petition is entertained by this Court, in the month of January, 2012 till March, 2017 no contest is made by the respondent in any form neither by representing nor by filing any affidavit to controvert the stand taken by the petitioner and therefore this is also one of the factors which cannot be ignored prima facie a recovery of money is civil consequence and more so is visible from the facts of the present case.
7. Now to arrive at an ultimate conclusion, an assistance is also taken by the Court from the decision delivered by this Court in case of Anilkumar Umashankar Upadhyay vs. State of Gujarat reported in 2016 JX (Guj.) 900 wherein it has been concluded that filing of FIR for nonpayment of some of the installments is entailing civil consequence and therefore such civil dispute may not be given a criminal colour as has been mentioned in the said decision and therefore, this Court has come to the conclusion that the same is nothing but a clear example of abuse of process of law. The said decision is based upon some of the decisions delivered by Apex Court and after taking note of ultimate conclusion arrived at.
"9. Having considered the submissions canvassed on behalf of the learned advocates for the parties and having gone through the Page 11 of 15 HC-NIC Page 11 of 15 Created On Mon Aug 14 15:40:18 IST 2017 R/CR.MA/18049/2011 JUDGMENT material produced on record it is revealed that the F.I.R. came to be filed against seven accused for the offence punishable under sections 386,114 and 120B of the Indian Penal Code. After reading the allegations made in the F.I.R. it is clearly revealed that the story put forth by the complainant in the F.I.R. is so absurd that any reasonable person would not believe the same. It is prima facie, not believable that for transporting an antique-item worth Rs.5 lacs from Palia to Surat any person can demand Rs.16 crores from the complainant and thereafter, the person would agree for Rs.5.25 crores. From the material on record it is further revealed that the complainant has given in writing and promised to ay Rs.5.25 lacs in three installments and thereafter, he had not fulfilled his promise and when the said amount is demanded by the concerned accused from the complainant he lodged this F.I.R with DCB Police Station and thereafter, the concerned accused including the applicants were apprehended. From the charge sheet papers also it cannot be said that the present applicants are in any way connected with the alleged incident. Ingredients of the alleged offence are also not made out so far as the applicants are concerned.
10. From the record it is also clear that with a view to avoid liability of payment by the complainant to the concerned accused as per his promise given in writing to the concerned accused he has filed the impugned F.I.R. It appears that there is a civil dispute between the parties and complainant has given a criminal colour to such civil dispute. Thus, the impugned F.I.R. is nothing but gross abuse of process of the Court and is filed with mala fide intention to harass the applicants. Thus, looking to the overall facts and circumstances of the present case and keeping in mind the law laid down by the Hon'ble Supreme Court while exercising powers under Section 482 of the Code by this Court, I am of the opinion that in the present case such powers are required to be exercised."
8. Yet another decision which has been brought to the notice of this Court in the case of Asif Gulamnabi Mushi vs. State of Gujarat reported in 2015 JX (Guj.) 1050 wherein the guidelines have been laid down as to on receipt of FIR what steps to be taken by the concerned learned Judge to entertain the complaint. The same is specifically concluded relying upon the earlier decision of the Apex Court. The relevant extract of paras:6, 7 and 8 of the same is worth to be quoted hereinafter.
"6. The Apex Court in the case of State of Haryana and others V. Bhajan Lal and others, reported in 1992 Supp (1) SCC 335 has broadly set out the circumstances in which this Court can exercise the power under Section 482 of Criminal Procedure Code. Paragraphs 102 and 103 thereof read as under:Page 12 of 15
HC-NIC Page 12 of 15 Created On Mon Aug 14 15:40:18 IST 2017 R/CR.MA/18049/2011 JUDGMENT " The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formula and to given an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent persons can ever reach a just conclusion that there is sufficient grounds for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and cotinuance of the proceedings and / or where there is a specific provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(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 the accused and with a view to spite him due to private and personal grudge."
7. In the case of Central Bureau of Investigation V. Ravi Shankar Srivastava, IAS and Another, it is held that proceeding instituted on a complaint can be quashed in exercise of inherent power where complaint does not disclose any offence or is frivolous, vexatious or oppressive.
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8. It is well settled law that ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. However, considering the overall facts and circumstances of the case, I am of the opinion that the petitioner has made out a case as pointed out in the above referred decisions. The criminal complaints filed by the complainant seems to be misuse of the process of law and it only seems to be filed to avoid the liability of payment. There is no plausible explanation for the inordinate delay in filing the complaint. This is purely a civil dispute. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case wither to prevent the abuse of the process of any court or otherwise to secure the ends of justice. In that view of the matter, this court is of the opinion that the impugned complaints are required to be quashed and set aside qua the present petitioner/s."
9. Considering the aforesaid propositions of law laid down by the aforesaid decisions, the Court is of the considered opinion that background of the present fact is also almost on the similar line in which the Court has no option but to accept the plea of applicant that on account of non-payment of installments filing of such general FIR is nothing but a clear example of abuse of process of law and therefore conjoint effect with ingredients contained in Sections 406 and 420 of IPC and the basic averments mentioned in the present complaint would lead to a situation where the propositions of law laid down, as referred to above, clearly suggests that the present FIR is not required to be precipitated any further and if the same is allowed the same would nothing but a clear example of coercive method against the person or an armed twisting method to recover money. Such kind of civil disputes prima facie visibly are not required to be encouraged and accordingly FIR being found to be abuse of process of law, this Court deem it proper to exercise inherent jurisdiction under Section 482 of the Code and accordingly the FIR lodged before Naroda Police Station being I-C.R.No.615 of 2011 for the Page 14 of 15 HC-NIC Page 14 of 15 Created On Mon Aug 14 15:40:18 IST 2017 R/CR.MA/18049/2011 JUDGMENT offences punishable under Sections 406 and 420 of the Indian Penal Code, 1860 is ordered to be quashed.
10. Rule is made absolute to the aforesaid extent.
(A.J. SHASTRI, J.) Amit Page 15 of 15 HC-NIC Page 15 of 15 Created On Mon Aug 14 15:40:18 IST 2017