Gujarat High Court
Arvindbhai Ranchhodlal Patel vs State Of Gujarat on 7 August, 2024
NEUTRAL CITATION
R/CR.MA/5727/2020 ORDER DATED: 07/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 5727 of 2020
With
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO.
1 of 2022
In R/CRIMINAL MISC.APPLICATION NO. 5727 of 2020
With
R/SPECIAL CRIMINAL APPLICATION NO. 11613 of 2021
With
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO.
1 of 2022
In R/SPECIAL CRIMINAL APPLICATION NO. 11613 of 2021
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ARVINDBHAI RANCHHODLAL PATEL & ANR.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR AS ASTHAVADI(3698) for the Applicant(s) No. 1,2
MR JIGAR B ACHARYA(10758) for the Respondent(s) No. 3
MR HK PATEL, APP for the Respondent(s) No. 1
SERVED BY RPAD (R) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 07/08/2024
ORAL ORDER
1. By way of this applications under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the applicants have prayed to quash and set aside the complaint being C.R. No. 11191030200012 of 2020 with Mahila Police Sation, Ahmedabad (West), for the offences punishable under Section 498A, 406, 506(2) and 114 of the Indian Penal Code, 1860 and Section 4 of Dowry Prohibition Act, 1961 as well as all the consequential proceedings arising therefrom.
2. The brief facts of the case are that:
Page 1 of 10 Downloaded on : Tue Aug 13 20:36:23 IST 2024NEUTRAL CITATION R/CR.MA/5727/2020 ORDER DATED: 07/08/2024 undefined 2.1 Applicant No. 1 is the father-in-law of applicant No. 2 and applicant No. 2 is the sister of the husband (Accused No. 1) of the complainant in Criminal Misc. Application No. 5727 of 2020.
applicant Nos. 1 and 2 in Special Criminal Application No. 11613 of 2021 are the father-in-law and mother-in-law of the complainant.
2.2 The complainant and Accused No.1 met through Shaadi.com as both were searching for life partners. They started talking and chatting with each other from August 2018 to March 2019. The complainant and Accused No. 1 got engaged on 12.03.2019 and married according to social rituals on 25.03.2019 in Ahmedabad. They went on a honeymoon to Singapore, Malaysia, and Thailand.
2.3 A dispute later arose between the parties when it was discovered that Accused No. 1 had previously married an American woman and that the divorce proceedings were ongoing in the USA. The complainant requested Rs. 15 lakhs from Accused No. 1 as the cost and expenses for her move to Canada, and the husband's family members agreed to the amount and to take her to Canada. Accordingly, an agreement was made between the parties on 17.01.2020.
2.4 It is also alleged that the present applicants, along with other accused persons, demanded gold ornaments for the marriage and Rs. 1,00,000 in cash from the complainant's father to submit the complainant's file for a U.S. Visa. The main allegation against the applicants is that they did not submit the complainant's file for obtaining a U.S. Visa and asked for money Page 2 of 10 Downloaded on : Tue Aug 13 20:36:23 IST 2024 NEUTRAL CITATION R/CR.MA/5727/2020 ORDER DATED: 07/08/2024 undefined from the complainant's father if she wished to go to the U.S. It is also alleged that the applicants inflicted injury on the complainant and subjected her to physical and mental torture.
3. Learned advocate for the applicants submits that the applicant herein have nothing to do with the offence and has been falsely implicated in the present case. The present applicants are distant relatives including father-in-law, mother- in-law, sister-in-law and father-in-law of the sister-in-law of the complainant. A bare perusal of the FIR reveals that all the facts narrated are either false or twisted with the intent to mislead the court and the investigating authority. The allegations against the applicants have no basis, as they also do not live under the same roof as the complainant. It is submitted that after filing the FIR, a subsequent development occurred in which a settlement was reached between the parties. It was agreed that to withdraw all proceedings, including the domestic violence proceedings, the accused would pay the complainant Rs. 40,00,000. Out of this amount, Rs. 23,00,000 has already been paid to the complainant. Therefore, the case does not constitute criminal breach of trust.
3.1 It is further submitted that the complaint was filed with the intent to destroy the social and economic prestige of the applicant and to harass her and the husband to extort money and ensure a handsome settlement in the event of a divorce. All allegations of physical, verbal, and emotional torture are false and baseless. None of the incidents alleged in the complaint ever took place. Even if the allegations made in the complaint are Page 3 of 10 Downloaded on : Tue Aug 13 20:36:23 IST 2024 NEUTRAL CITATION R/CR.MA/5727/2020 ORDER DATED: 07/08/2024 undefined taken at face value, they do not attract the provisions of the Indian Penal Code. Even if the entire complaint is read in its entirety, the allegations made against the applicant are of such a general and ambiguous nature that they are not supported by any evidence. Therefore, the learned advocate for the applicant requests that the present application be allowed. The learned advocate for the applicant has submitted that the applicant has been falsely implicated and dragged into litigation with a view to extort.
4. The learned APP appearing for the respondent-State has opposed the application and submitted that Accused No. 1, who resides in the USA, married the complainant and assured her that he would arrange for her U.S. visa. For this purpose, the complainant gave him Rs. 15,00,000, but he failed to fulfill his promise. It is further submitted that the complainant was subjected to mental and physical harassment by the accused and also received life threats. The accused made her life unbearable, compelling her to leave her matrimonial home. In view of the above, the learned APP requested that the application be dismissed.
5. Learned advocate appearing for the respondent No.2 has adopted the submissions of the learned APP and submits that the applicants are directly involved in the offence of mentally and physically harassing the complainant and in this regard, sufficient evidence and material is available against the accused. It is submitted that although the son of the applicants was already married, the accused persons arranged for Accused No. Page 4 of 10 Downloaded on : Tue Aug 13 20:36:23 IST 2024 NEUTRAL CITATION R/CR.MA/5727/2020 ORDER DATED: 07/08/2024 undefined 1 to marry the complainant, promising to send her abroad. They deceived her by obtaining a substantial amount of money under the pretense of arranging a U.S. visa. Therefore, he requests that the present application be dismissed.
6. Having heard the learned advocates for the respective parties and considering the facts and circumstances of the case, applicant No. 1 is the father-in-law of applicant No. 2. applicant No. 2 is the sister of the husband (Accused No. 1) of the complainant in Criminal Misc. Application No. 5727 of 2020. Applicant Nos. 1 and 2 in Special Criminal Application No. 11613 of 2021 are the father-in-law and mother-in-law of the complainant. The complainant and Accused No. 1 met through Shaadi.com, got engaged in March 2019, and married later that month in Ahmedabad. After their honeymoon, a dispute arose when it was revealed that Accused No. 1 was still in divorce proceedings with his previous American wife. The complainant requested Rs. 15 lakhs for her move to Canada, which the husband's family agreed to, leading to an agreement on 17.01.2020. The applicants are accused of demanding gold ornaments and Rs. 1,00,000 from the complainant's father to submit her U.S. Visa application and of failing to do so. Additionally, they allegedly subjected the complainant to physical and mental torture. It s also alleged the FIR that the accused assured her that they would arrange for her U.S. visa. For this purpose, the complainant gave him Rs. 15,00,000, but they failed to fulfill his promise and did not return her money.
7. In view of the above, it appears from the record that sister-
Page 5 of 10 Downloaded on : Tue Aug 13 20:36:23 IST 2024NEUTRAL CITATION R/CR.MA/5727/2020 ORDER DATED: 07/08/2024 undefined in-law and father-in-law of the sister-in-law of the complainant have not play any role in the offence as both are acted as a middle man and there is no direct evidence allegations leveled against them and they are resides separately and they never share house.
8. So far as the father-in-law and mother-in-law are concerned, general and vague allegations leveled against them. So far Section 494 of the IPC which was added subsequently is concerned, the same offence is added against the accused No.1 who is husband of the complainant and he is not before this Court.
9. So far as Section 406 of the IPC is concerned, the applicants were not entrusted with any property. The only allegation against them is that they executed the contract and sent Respondent No. 2 abroad, initiating the process to obtain a U.S. visa. Beyond this, there are no other allegations against them. Criminal breach of trust, as defined in Section 405 of the IPC, is as follows:
"Whoever, being entrusted with property, or having dominion over property, dishonestly misappropriates or converts that property to their own use, 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 they have made concerning the discharge of such trust, or willfully allows any other person to do so, commits 'criminal breach of trust."
10. In view of the above, it is clear that failing to keep the promise of sending someone abroad and obtaining a U.S. visa Page 6 of 10 Downloaded on : Tue Aug 13 20:36:23 IST 2024 NEUTRAL CITATION R/CR.MA/5727/2020 ORDER DATED: 07/08/2024 undefined does not constitute criminal breach of trust. Therefore, Section 406 of the IPC is not applicable.
11. So far as Section 498 is concerned, the allegations against the accused are general and vague, and the applicants have not played any significant role. It also appears that this is a case of over-implication.
12. Regarding the allegation that the complainant's ornaments have not been returned, the record shows that these ornaments have already been returned and sold by the complainant. Even, proceedings under the Domestic Violence Act were initiated and are pending before the learned Chief Judicial Magistrate in Criminal Misc. Application No. 1518 of 2020. These proceedings were dropped by the learned Additional Chief Judicial Magistrate through an order dated 6th July 2024.
13. It appears that applicants are facing charge of Section 498A of IPC. Therefore, as per the allegations made in the complaint, ingredient of Section 498A is made out. In this regard, it would be apposite to refer the decisions of the Apex Court in cases of (i) Abhishek vs. State of Madhya Pradesh reported in 2023INSC779 / (Criminal Appeal No. 1457 of 2015),
(ii) of Preeti Gupta and another vs. State of Jharkhand, another [(2010) 7 SCC 667], it is observed that "this Court noted that the tendency to implicate the husband and all his immediate relations is also not uncommon in complaints filed under Section 498A IPC. It was observed that the Courts have to be Page 7 of 10 Downloaded on : Tue Aug 13 20:36:23 IST 2024 NEUTRAL CITATION R/CR.MA/5727/2020 ORDER DATED: 07/08/2024 undefined extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases, as allegations of harassment by husband's close relations, who were living in different cities and never visited or rarely visited the place where the complainant resided, would add an entirely different complexion and such allegations would have to be scrutinized with great care and circumspection.
14. This Court deems if appropriate to refer to the judgment passed by the Hon'ble Apex Court in the case of Sunil Kumar versus State of Uttar Pradesh, reported in 2023 8 SCC 481 and in the case of State of Haryana v. Bhajan Lal, reported in 1992 Supp (1) SCC 335, wherein the Apex Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised and held in para 102 as under:
"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 Art. 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 channelized 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.Page 8 of 10 Downloaded on : Tue Aug 13 20:36:23 IST 2024
NEUTRAL CITATION R/CR.MA/5727/2020 ORDER DATED: 07/08/2024 undefined (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 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 sec. 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 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 concerned Act (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 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."
15. In the aforesaid backdrop, complaint is filed. It is necessary to consider whether the power conferred by the High Court under section 482 of the Code of Criminal Procedure is warranted. It is true that the powers under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a Page 9 of 10 Downloaded on : Tue Aug 13 20:36:23 IST 2024 NEUTRAL CITATION R/CR.MA/5727/2020 ORDER DATED: 07/08/2024 undefined legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard- and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage as the Hon'ble Supreme Court has decided in the case of Central Bureau of Investigation vs. Ravi Shankar Srivastava, IAS & Anr., reported in AIR 2006 SC 2872.
16. In the result, the applications are allowed. The impugned complaint being C.R. No. 11191030200012 of 2020 with Mahila Police Sation, Ahmedabad (West) as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the applicants herein. Rule is made absolute to the aforesaid extent. Direct service is permitted.
17. Since the main applications are disposed of, Criminal Misc. Application for vacating interim relief do not survive. Hence, the same are disposed of accordingly.
(HASMUKH D. SUTHAR,J) ALI Page 10 of 10 Downloaded on : Tue Aug 13 20:36:23 IST 2024