Gujarat High Court
Chelaram Ambalal Patel vs State Of Gujarat & on 14 July, 2016
Author: A.J. Shastri
Bench: A.J. Shastri
R/SCR.A/2190/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2190 of 2010
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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CHELARAM AMBALAL PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR PS CHAUDHARY, ADVOCATE for the Applicant(s) No. 1
MR.N.D.BUCH, ADVOCATE for NANAVATY ADVOCATES, ADVOCATE for
the Respondent(s) No. 2
MR.PRANAV TRIVEDI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 14/07/2016
ORAL JUDGMENT
1. The petition is directed against the issuance of Page 1 of 19 HC-NIC Page 1 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT process by the learned Judicial Magistrate First Class at Surat for the offences punishable under section 406, 408, 420, 423, and 468 of the Indian Penal Code in relation to inquiry No.15 of 2008. The case of the petitioner is that on 21.11.2005, the complainant was given a work contract by S.R.Construction Limited for deepening a pond and bund making at Village:Kherva, District:Mehsana. In response thereto, the respondent No.2complainant was in need of some land near the place of work order at Village:Kherva. The complainant had contacted petitioner No.1 and some other persons. In deliberation pertaining to that, the petitioner had agreed to sell his property and in lieu thereof, as a consideration of sale, the petitioner had also agreed to purchase seven dumpers of the complainant i.e. respondent No.2. It is the case of the petitioner that after purchasing the land on 08.12.2006, the complainant also executed an agreement for sale with some other persons who were the original owners of the land viz. One Kuvarji Keshaji Thakore and Rupsangji Keshaji Thakore. It is the case of the petitioner that these persons had mortgaged their land by taking loan from Gujarat State Page 2 of 19 HC-NIC Page 2 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT Cooperative Bank, but the land of these original owners having been sold, they had paid their account of loan and therefore, the complainant had purchased these parcels of land and further executed an agreement for sale with others. This transaction has been reduced in writing on a stamp paper, wherein, it is the case of the petitioner that he was merely one of the witnesses. It is the case of the petitioner that he merely stood as a witness and not beneficiary of the transaction in question and the complainant has unnecessarily dragged the petitioner in prosecution. The petitioner has pointed out that a private complaint came to be filed before the learned Judicial Magistrate First Class at Surat for the offence punishable under sections 406, 408, 420, 423 and 468 of Indian Penal Code, which was upon an order of inquiry registered as Criminal Case (Inquiry) No.15 of 2008. Based upon the said case, the matter was sent for police inquiry and upon an inquiry on 05.08.2008, a report came to be submitted by the concerned police authority, inter alia, postulating that petitioner is merely a witness and transaction in question appears to be of a civil nature. This report is submitted Page 3 of 19 HC-NIC Page 3 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT before the learned Magistrate. Surprisingly, upon a brief objection of the complainant i.e. the respondent No.2, without proper application of mind, without examining the report submitted by the concerned police authority, the learned Magistrate in casual manner has issued process under section 204 of Code of Criminal Procedure vide order dated 07.02.2009. The said order by virtue of which the process is issued under section 204 for the offence punishable under sections 406, 408, 420, 423 read with section 468 of Indian Penal Code. Feeling aggrieved by the said order, the petitioner was constrained to file an application for seeking discharge from the prosecution on 11.05.2010. The said application for discharge came to be contested by the respondent No.2 by filing a reply. Ultimately vide order dated 07.09.2010, the said application came to be dismissed by a cryptic order without independent application of mind and without looking at the record which ultimately compelled the petitioner to approach this Court by way of Special Criminal Application No.2019 of 2010. It is the case of the petitioner that the said matter came up for consideration before this Court and upon perusal of Page 4 of 19 HC-NIC Page 4 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT the circumstance prevailing on record, the Hon'ble Court has permitted the petitioner to file an independent petition for seeking quashing of the complaint and the process. Accordingly the said petition came to be disposed of on 13.10.2010. In the background of this circumstance referred to above, the petitioner has presented this petition invoking jurisdiction under section 482 of the Code of Criminal Procedure.
2. On perusal of the relevant papers, it appears that respondent No.2original complainant had submitted in his complaint that for the purpose of doing business, the petitioner has approached respondent No.2 complainant and in response thereto the land in his possession was offered. It was also deliberated between them that in lieu of that requirement of land, 7 dumpers were also to be purchased by the petitioner and for that purpose, various power of attorney documents came to be executed in favour of the complainant. It is the case of the complainant that by passage of time, he came to know about the fact that the land bearing survey No.531 stood in the name of the petitioner, whereas, Page 5 of 19 HC-NIC Page 5 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT other survey numbers were belonging to a different person and the said portion of land was mortgaged with Gujarat State Cooperative Agricultural and Rural Development Bank limited at Visnagar branch. Having found that the transaction was to be completed, it is the case of the complainant that the said mortgage was released by him by making payment as mentioned in the complaint. It is the case of the complainant that since relying upon the representation and promise of the petitioner, the complainant entered into transaction which ultimately led him to a serious prejudice. As complainant realised that fraud is committed with him which tantamounts to criminal breach of trust, therefore, before launching prosecution through advocate, the complainant had issued notice on 11.04.2008. In the said notice, it was specifically mentioned that if the accused failed to pay the amount as mentioned appropriate legal action including criminal prosecution will be initiated. Having not complied with the notice, it is the case of the complainant that the complainant is dragged to and compelled to file a criminal prosecution on 13.06.2008. In the background of Page 6 of 19 HC-NIC Page 6 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT aforesaid circumstance, the petitioner has challenged the order of issuance of process. The petitioner had also filed a discharge application, but then on account of technical ground, ultimately had to file present petition for quashing the complaint independently.
3. The learned advocate Mr.P.S.Chaudhary appearing on behalf of the petitioner submitted that petitioner has not committed any offence as alleged and has contended that he merely remained as a witness in an agreement which took place between the complainant and the third party. Learned counsel further submitted that the petitioner has nothing to do with the transaction in question and has wrongly been dragged into prosecution. The counsel submitted that the allegations which are levelled in the complaint, are exfacie of civil nature and therefore, with a view to apply pressurizing tactics, the complaint came to be filed. It has been contended that the complaint has been filed only against the present petitioner, who merely remained as a witness and surprisingly respondent No.2 has chosen not to proceed ahead with the ultimate culprit. The counsel for the petitioner Page 7 of 19 HC-NIC Page 7 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT has categorically submitted that he being merely a witness, exfacie, the ingredients of an offence as alleged in the complaint are not established. The averments contained in the complaint are also too vague and general in nature, not even elementary suggesting any offence having been committed by the petitioner.
4. For that purpose, a specific ground has been taken in the petition enumerating the contents of the said ingredients and thereby counsel for the petitioner submitted that primafacie, no offence is made out and if this complaint in question is allowed to operate against or proceeded further, it would tantamount to abuse of process of law and requests the Court not to allow the complaint to precipitate further. It is further submitted by the counsel that irrespective of this, even the tenor of complaint would ultimately lead to a situation where the question of money recovery would arise based upon a commercial transaction and therefore, that being purely civil in nature, the respondent No.2 may not be allowed to convert civil dispute into criminal process and thereby the counsel submitted that such abuse of Page 8 of 19 HC-NIC Page 8 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT process of law may not be allowed to be operated by the respondent No.2.
5. It was further specifically contended by the counsel for the petitioner that the agreement in question took place at Mehsana. The work was to be taken place within the vicinity of Mehsana district. Every part of the transaction has taken place within the territorial limits of Mehsana. Even the exchange of cheques and the payment part has also taken place at Mehsana and this being the position, the counsel for the petitioner has drawn the attention of this Court to a specific provision contained in the Code of Criminal Procedure viz. Section 177 of the Criminal Procedure Code. In the background of this fact, the counsel for the petitioner submitted that complaint is not tenable at Surat. Even the learned Magistrate has issued the process having no jurisdiction to deal with in view of this statutory provision and therefore, the counsel submitted that this is nothing, but an arm twisting to the petitioner to extract money from the petitioner and this attempt on the part of the respondent No.2 may not be allowed to be encouraged by allowing the complaint to proceed further. It is in Page 9 of 19 HC-NIC Page 9 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT this background counsel for the petitioner requested the Court to consider and grant the relief as prayed for in the petition.
6. As against this stand taken by the counsel for the petitioner, learned advocate Mr.Buch appearing on behalf of Nanavaty Advocates for respondent No.2 submitted that primafacie the offence is made out as mentioned in the complaint. It was also contended by the counsel for the respondent No.2 that it is on account of representation and persuasion of the present petitioner, the transaction has been entered into and therefore, a specific role is attributed against the petitioner and in that view of the matter, counsel submitted that complaint at the initial stage, may not be allowed to be throttled. The learned counsel for the respondent No.2 submitted that while exercising discretion, the learned Magistrate has assigned valid reasons while rejecting the request of discharge from the prosecution made by the petitioner and therefore in the background of that fact, the process of criminal complaint may not be hampered. It was submitted by the counsel that the jurisdiction under section 482 is to be sparingly exercised and Page 10 of 19 HC-NIC Page 10 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT therefore submitted that this is not the case in which, powers under section 482 can be exercised. He therefore, requested the Court to dismiss the petition.
7. Learned counsel for respondent No.1 has drawn the attention of the Court to para No.2 of the complaint on page 25 and submitted that there is a specific role emerging from the record of the petition and therefore in the background of this fact, simply because prima facie, it appears to be a business transaction, criminal complaint may not be allowed to be hampered in any manner and therefore requested the Court to dismiss the petition.
8. So far as specific contention with respect to section 177 of the Code of Criminal Procedure is concerned, the counsel for the respondent No.2 has strenuously submitted that document viz. the stamp paper appears to have been purchased at Bharuch and the complainant is residing at Surat and therefore, Surat Court has got jurisdiction to entertain the complaint and therefore the learned counsel submitted that section 177 of the Code of Criminal Procedure is Page 11 of 19 HC-NIC Page 11 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT not applicable in the background of this fact. No other submission are canvassed further.
9. Learned APP Mr.Pranav Trivedi has submitted that this transaction appears to be interwoven between the petitioner and respondent No.2 and other persons and the factual background demands that proper adjudication of complaint is required to be undertaken. Learned APP has submitted that simply because an element of civil nature is reflected, no power under section 482 be exercised and thereby requested the Court not to entertain the petition. Learned APP has left it open to the Court on the issue of section 177 of the Code of Criminal Procedure and submitted that it all depends upon the interpretation of provision, and therefore, appropriate order may be passed in this regard.
10. Having heard learned counsel appearing for the respective parties and having gone through the material on record, it primafacie appears that there is a business transaction involved in the issue. The transaction in question is reflecting an element of civil nature. In addition thereto, the most striking Page 12 of 19 HC-NIC Page 12 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT feature is encirculating around section 177 of Code of Criminal Procedure and therefore, before adverting to the facts of the case, it appears that the provision of section 177 is required to be closely looked into. Section 177 of the Code of Criminal Procedure reads as under:
177. Ordinary place of inquiry and trial. Every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.
11. Section 177 contained in chapterXIII of the Code of Criminal Procedure relates to jurisdiction of criminal courts in inquiries and trial and section 177 is postulating an ordinary place of inquiry and trial. Primafacie, reading of this statutory provision reflects that every offence ordinarily to be inquired into and tried by the Court within whose local limits and jurisdiction the same is committed. While considering this provision of section 177, other related statutory provisions contained in this chapter mentioned above, are also worthwhile to be taken note of and the relevant section is section 181, which deals with the place of trial in case of certain offences. In the case on hand, the most relevant Page 13 of 19 HC-NIC Page 13 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT provision is subsection (4) of section 181 of Code of Criminal Procedure, which reads as under:
181.Place of trial in case of certain offences.
(1)...
(2)...
(3)...
(4)Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was received or retained, or was required to be returned or accounted for, by the accused person.
12. For consideration of sections 177 and 181 of the Code of Criminal Procedure as referred herein above, one decision rendered by the Hon'ble Supreme Court in case of Naresh Kavarchand Khatri v. State of Gujarat and another, reported in 2008 (8) SCC 300, is worth to be taken note of.
"8. Whether an officer incharge of a police station has the requisite jurisdiction to make investigation or not will depend upon a large number of factors including those contained in Sections 177, 178 and 181 of the Code of Criminal Procedure. In a case where a trial can be held in any of the places falling within the purview of the aforementioned provisions, investigation can be conducted by the concerned officer in charge of the police station which has jurisdiction to investigate in relation thereto. Subsection (4) of Section 181 of the Code of Criminal Procedure Code would also be relevant therefor. We need not Page 14 of 19 HC-NIC Page 14 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT dilate more on analyses of the aforementioned provisions as the said question has been gone into by this Court on more than one occasion."
13. Therefore, considering the ratio laid down by the said decision, it appears that the complaint at Surat is not maintainable and therefore, every step taken by the learned Magistrate upon such complaint either of ordering inquiry or issuance of process is without jurisdiction and without examining this important aspect of the matter since the process is issued, the same is nothing but, sheer non application of mind on the part of the learned Magistrate and therefore, the Court is constrained to hold this in the petition.
14. Considering aforesaid statutory provisions, primafacie, it appears that the contention raised by the petitioner has got its own importance. Bare reading of the record reflects that transaction has taken place within the local limits of District:Mehsana. It appears that an agreement which took place and which is signed by the petitioner as witness is also executed within the limits of Mehsana. Pursuant to the said transaction, the exchange of land and the dumpers has also taking place within the local Page 15 of 19 HC-NIC Page 15 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT limits of District:Mehsana. The payment consideration is also from the place of Mehsana. The cheques have been issued from the limits of District:Mehsana and the mortgage which has been realized out of the transaction in question is also realized from the bank of Visnagar branch and therefore, it appears that every part of the transaction has taken place within the local limits of District:Mehsana. It also appears from the record that even the work was also to be undertaken within the local limits of District:Mehsana and therefore, it appears that the statutory provision contained in section 177 has a specific role to play in this background. The record reveals that complaint filed at Surat has no tenability in view of section 177 of the Code of Criminal Procedure. Simply because the original complainant is residing at Surat, would not ipso facto give rise to put criminal machinery in motion at Surat which has got no ordinary place of inquiry as stipulated under section 177 and therefore the order of issuance of process and the filing of complaint lacks specific element and therefore, primafacie, not maintainable. Another aspect of the matter which also deserves to be considered in Page 16 of 19 HC-NIC Page 16 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT addition to the above issue is that the complaint in question was initially sent for police inquiry. There was a specific report submitted in the month of September 2008 and after considering the material on record and recording of statement, a detailed report was submitted that transaction is commercial in nature and of civil dispute. It has also been stated in the report that petitioner has remained merely a witness and therefore when the business transaction is simplicitor referring in the complaint, ultimately the question pertaining to any commercial liability which is essentially of a civil nature and to put criminal law into motion is nothing but tentamounts to be an abuse of process of law and therefore, on this ground also, the petition deserves to be considered.
15. From arguments of the counsel of respective parties, it appears that a bare reading of the complaint is also reflecting no specific accusation against the petitioner. There is no specific allegation levelled, nor any role attributed about criminality in the complaint and therefore in the absence of it, it is not open for the learned Page 17 of 19 HC-NIC Page 17 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT Magistrate to casually issue summons upon the complaint without application of any mind. The basic element of the offences alleged are not reflecting insofar as present petitioner is concerned, and therefore, in the background of these facts and circumstances also, it appears to the Court that complaint in question is nothing but filed with a view to harass the petitioner and with a view to pressurizing tactics to extract something which is not legally available from the petitioner and is nothing but a sheer abuse of process of Court.
16. This Court while dealing with the petition, has dealt with an aspect involved in the complaint and is not expressing any opinion on any other legal right available to respondent No.2 in this regard and therefore leaving it open for the respondent No.2 to avail any other legal remedy available under the law.
17. The Court is of the opinion that the relief prayed for deserves to be granted. Accordingly, the petition is allowed. The complaint being Criminal Case No.4073 of 2009, pending in the Court of learned Judicial Magistrate First Class at Surat and the Page 18 of 19 HC-NIC Page 18 of 19 Created On Thu Jul 21 06:01:22 IST 2016 R/SCR.A/2190/2010 JUDGMENT issuance of process upon it for offence alleged is quashed and set aside. Rule is made absolute.
(A.J. SHASTRI, J.) ANKIT Page 19 of 19 HC-NIC Page 19 of 19 Created On Thu Jul 21 06:01:22 IST 2016