Gujarat High Court
Tosif Abdulaziz Shaikh vs State Of Gujarat on 24 April, 2023
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/SCR.A/3629/2013 ORDER DATED: 24/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3629 of 2013
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TOSIF ABDULAZIZ SHAIKH & 2 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2,3
MR.D K.PUJ(3836) for the Respondent(s) No. 2
MR LB DABHI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 24/04/2023
ORAL ORDER
1. By way of this application under section 482 of the Code of Criminal Procedure, the applicants original accused seek to invoke inherent powers of this Court for quashing of First Information Report being CR.No.I-294 of 2013 registered with Panigate police station at Vadodara city for the offences punishable under sections 420, 506(2) and 114 of the Indian Penal Code.
2. Facts and circumstances giving rise to filing of the present application are that the applicants and respondent no.2 complainant are related to each other. The daughter of applicant No.2 married with respondent complainant and marriage was solemnized on 27.05.2010.
3. Applicant No.1 is brother-in-law, applicants No.2 and 3 are father- Page 1 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023
NEUTRAL CITATION R/SCR.A/3629/2013 ORDER DATED: 24/04/2023 undefined in-law and mother-in-law respectively of respondent No.2. It is alleged that the complainant had given cash of Rs. 4 lakhs to applicant No.1 Tausif Shaikh for investment purpose. Applicant No.1 was working as Sub-agent with KSP Investment, Ahmedabad. It is alleged that applicant No.1 had if he will invest money in KSP Investment, then within six months, he will get 200% return of his investment. It is further alleged that after completion of six months, the complainant contacted his brother- in-law, applicant No.1 to return the invested money. However, he did not heed his request and failed to return the amount. It is further alleged that he complained to accused No.2 and 3 for the conduct of their son accused No.1 and they also assured that the invested amount would be returned back in a short time. It is further alleged that on 13.11.2013 when he came to the house of his father, he met the applicants herein and enquired about his money, which he had invested at the behest of applicant No.1. The accused herein got annoyed and threatened him for dire consequences, if he asked about the investment amount.
4. In the aforesaid facts, respondent complaint approached the Panigate police station and lodged the FIR for the offences as referred above and the same has been registered on 25.11.2013. Page 2 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023
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5. Applicants herein have preferred the instant application for quashing of the criminal proceedings, mainly on the ground that the present FIR is nothing but a counterblast to the various proceedings initiated against him by his own wife, who happens to be the daughter of applicants Nos.2 and 3 . The second contention raised is that allegations in the FIR are highly improbable and is registered with ulterior motive for wrecking vengeance on the applicant accused.
6. This Court has heard learned counsel Mr. P.P.Majmudar, learned counsel Mr. D.K.Puj and learned APP Mr. L.B. Dabhi for the respective parties.
7. Mr. P.P. Majmudar, learned counsel appearing for and on behalf of the applicants submitted that the allegations in the FIR are absolutely concocted and if the same are accepted in their entirety, did not prima facie constitute an offence or make out a case against the applicants. The sister of applicant No.1, who happens to be the wife of the complainant has initiated Court proceedings like complaint under the Domestic Violence Act, claimed maintenance under 125 of the Code of Criminal Procedure and filing a complaint under section 498A of the Indian Penal Code and same are pending before the Court concerned. She has also filed a Civil Page 3 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023 NEUTRAL CITATION R/SCR.A/3629/2013 ORDER DATED: 24/04/2023 undefined Suit to protect her possession of the flat property against the father of the complainant, wherein ad interim injunction was granted restraining the defendant not to dispossess her. In this context, he submitted that after filing of various proceedings by the wife of the complainant, the present FIR is filed, which is an afterthought and filed with a view to pressurize the applicants to settle the matrimonial dispute. He would further urge that the entire story of investment of Rs. 4 lakhs is false and fabricated. There is no evidence to show that he had parted with the money based on representation made by accused No.1. Thus, therefore, the entire story is inherently improbable and no prudent person can every reach a just conclusion that there are sufficient grounds for proceeding against the accused. Lastly, he would submit that the essential ingredients to attract section 420 are missing in the facts of the present case. It can be inferred that the questioned FIR is being filed to harass the applicants and the same is amounting to abuse of process of law and Court.
8. On the other hand, Mr. D.K.Puj, learned counsel and L.B.Dabhi, learned APP have vehemently opposed the plea of quashing and submitted that there is specific allegation made in the First Information Report that the complainant had entrusted Rs. 4 lakhs Page 4 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023 NEUTRAL CITATION R/SCR.A/3629/2013 ORDER DATED: 24/04/2023 undefined in cash to invest the money in the company, in KSP investment with whom applicant No.1 was working as sub-agent and at the relevant time, he made a representation that within six months, he will get 200% profit and based on his representation, he parted with the money. Thus, prima facie the averments made in the complaint discloses the ingredients necessary to constitute an offence under section 406, 506(2) of the Indian Penal Code. It is submitted at this stage that minute and meticulous exercise with regard to appreciation of evidence may not be done and truthfulness of the allegations could only be tested at the stage of trial. Thus, the submissions made by the applicants, which are related to the disputed question of fact, cannot be agitated upon by this Court in the proceedings under section 482 of the Code of Criminal Procedure.
9. The scope and power of the High Court to quash the FIR or criminal proceedings under section 482 of the Code of Criminal Procedure is well settled. The High Court is always guided by the allegations made in the complaint or chargesheet and it is to be seen, if these allegations constituted any offence or not and whether resort to criminal proceedings in such circumstance whether would amount to abuse of process of the Court or not. Page 5 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023
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10.The Apex Court in case of State of Haryana vs. Bhajan Lal reported in (1992) Supp 1 SCC 335 has laid down the guidelines that must be adhered to while exercising inherent powers under Sections 482 of the Code to quash the criminal proceedings. The relevant paragraph reads thus:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised 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 channelised and inflexible guidelines or rigid formulae and to give 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 first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officersunder 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 Page 6 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023 NEUTRAL CITATION R/SCR.A/3629/2013 ORDER DATED: 24/04/2023 undefined and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides 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."
11.In the case of Zandu Pharmaceutical Works Ltd. vs. Md. Sharaful Haque, (2005) 1 SCC 122: AIR 2005 SC 9, the Apex Court has reiterated thus:-
"8. ... It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds tha initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
12.The applicants accused have been charged under sections 420, 506(2) of the Indian Penal Code, as they had induced complainant by making false representation to invest Rs. 4 lakhs and assured that he will get good returns. Section 420 is related to act of cheating and dishonestly inducing delivery of property. Page 7 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023
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13.A bare reading of section 420 says that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy, whole or any part of the valuable security or anything which is signed or sealed and which is capable of being converted into valuable security, shall be punished with imprisonment upto 7 years and shall also be liable to fine.
14.Essential ingredients to attract section 420 of the Indian Penal Code are (i) cheating; (ii) dishonest inducement to deliver property or to take, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security and (ii) mens rea of fraudulent the accused at the time of making the inducement.
15.In view of the statutory provision, to bring the case under ambit of section 420; the prosecution has to prove that the complainant had parted with his property acting on a representation, which is false to the knowledge of the accused and the accused had an dishonest intention from the beginning of the transaction, when the offence is said to have been committed.
16.In the present case, applicant No.1 is the brother-in-law of respondent No.1. As per the prosecution case, after some time of Page 8 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023 NEUTRAL CITATION R/SCR.A/3629/2013 ORDER DATED: 24/04/2023 undefined marriage, at the instance of accused No.1, he invested Rs. l lakhs in KSP Investment, as accused No.1 was working as sub-agent with the company. It is further alleged that in the month of November, 2011, as he did not get good returns, he asked to return back the invested money as per the assurance given by accused No.1. It needs to be noted that the complainant in his FIR did not disclose the facts that on which date, he parted with the money. Before lodgement of the FIR, he should have redressed his grievance with the KSP Investment. It is not the case of the prosecution that accused No.1 after receiving the amount from him, used it for his personal purpose and had never invested the amount as alleged. In such circumstances, what emerges is that initial relations of the parties were cordial and subsequently due to matrimonial dispute, arising between the husband and the wife, they were not in good terms. Meanwhile, wife of the complainant happened to be the sister of the applicant No.1, filed a Civil Suit to protect her possession of the flat property and had also claimed maintenance from the complainant by filing application under section 125 of the Code of Criminal Procedure and other proceedings claiming various reliefs under the provision of Domestic Violence Act.
17.The present application is filed on 25.11.2013. According to the Page 9 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023 NEUTRAL CITATION R/SCR.A/3629/2013 ORDER DATED: 24/04/2023 undefined say of the complainant, the alleged transaction of handing over of cash amount for investment took place in the year 2011. Prima facie, there is nothing to show that applicant No.1 was given Rs. 4 lakhs by the complainant for investment purpose. If the allegations of handing over of cash amount is believed as it is, then also, the primary requirement to make out the offence of cheating under section 420 of the IPC are missing, as at the relevant time, when the transaction took place, they were in good terms, and therefore, the dishonest intention or fraudulent intention at the time of alleged transaction is not established. The law is well settled that mere breach of contract cannot give rise to criminal proceedings under section 420 of the IPC, unless fraudulent or dishonest intention is shown right at the beginning of the transaction time, when the offence is said to have been committed. Therefore, allegations accepted as it in the entirety, the criminal liability cannot be fastened on the accused, as it is a case of subsequent breach of understanding as alleged in the FIR. In that view of the matter, it will give rise to civil cause of action to recover the amount, if at all established that the amount actually is parted with by the complainant. Thus, therefore, prima facie, upon bare reading of the allegations alleged in the FIR, the essential ingredients to attract Page 10 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023 NEUTRAL CITATION R/SCR.A/3629/2013 ORDER DATED: 24/04/2023 undefined section 420 read with section 114 of the IPC are not established. So far as charge under section 506(2) of the Indian Penal Code are concerned, the allegations against accused would not fall under the definition of criminal intimidation, as defined under section 503 of the Indian Penal Code. It appears that, prima facie, applicants No.2 and 3, who are father-in-law and mother-in-law of respondent complainant have been arraigned with a view to exert pressure to settle the matrimonial dispute.
18.Mr. Majmudar, learned counsel for the applicant has raised his contention that the present FIR is nothing but a counterblast to various litigations filed by the wife of the complainant. As discussed hereinabove, prior to the registration of the FIR, wife of the complainant filed various litigations against the complainant and his family members. Thus, this Court found some substance in the submissions advanced by the learned counsel for the applicants.
19.In the aforestated reasons, accusations even if taken at face value and accepted in their entirety do not constitute any offence against the applicants. The case is fully covered by categories (1),(5) and (7) as enumerated by the Apex Court in the case of Bhajan Lal (supra).
20.Resultantly, the application is allowed. First Information Report Page 11 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023 NEUTRAL CITATION R/SCR.A/3629/2013 ORDER DATED: 24/04/2023 undefined being CR.No.I-294 of 2013 registered with Panigate police station at Vadodara city is quashed and set aside qua the applicants. All consequential proceedings arising therefrom are also quashed and set aside qua the applicants.
21. Application stands disposed of. Rule is made absolute accordingly.
(ILESH J. VORA,J) SUDHIR Page 12 of 12 Downloaded on : Sun Sep 17 18:48:30 IST 2023