Gujarat High Court
Ravibhai Rameshbhai Patel vs State Of Gujarat on 27 February, 2023
Author: Samir J. Dave
Bench: Samir J. Dave
R/SCR.A/2638/2023 ORDER DATED: 27/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2638 of 2023
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RAVIBHAI RAMESHBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR VICKY B MEHTA(5422) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MR MANAN MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 27/02/2023
ORAL ORDER
1. By way of this petition filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (for short, "the Cr.P.C."), the petitioners have prayed to quash and set aside the complaint being FIR No.11217014230014 registered with Kokisha Police Station, District : Patan for the offences punishable u/s. 420, 506(2) and 114 of IPC and sections 40 and 42 of the Gujarat Money Lenders' Act and all consequential proceedings.
2. Learned advocate Mr. Vicky Mehta appearing for the petitioners submitted that prior to the registration of impugned FIR, a firm named I.F.L. Finance had filed an FIR against respondent No.2 herein and others on 08.06.2022 before Unjha Page 1 of 5 Downloaded on : Tue Feb 28 20:46:51 IST 2023 R/SCR.A/2638/2023 ORDER DATED: 27/02/2023 Police Station wherein it was alleged that respondent No.2 had cheated the Institution of Rs.2.50 Lacs by not mortgaging the gold ornaments as agreed upon. Earlier, respondent No.2 had availed loan by mortgaging gold with one Finecal Company and he had repaid the said loan by availing finance from I.F.L. Finance. Thus, respondent No.2 had the history of cheating individuals / firms with the promise of availing loan by mortgaging gold ornaments. The impugned FIR has been filed against the petitioners only to counter the claim in the FIR registered against the respondent No.2 by I.F.L. Finance. It was further submitted that none of the ingredients of the offence punishable u/s. 420 IPC are made out in this case and therefore also, this is a fit case where discretion deserves to be exercised in favour of the applicants.
3. Heard learned advocate for the applicants and learned APP for the respondent State. It appears from the allegations made in the impugned FIR that the applicants gained the confidence of respondent No.2 and made him to part with his gold ornaments for a loan of Rs.3,00,000/- for interest at the rate of 3% per month in September 2021. Earlier the complainant appears to have mortgaged his gold ornaments before some other financial institution but in view of the assurance given by the applicants that they would pay him more amount of loan at less rate of interest against his gold Page 2 of 5 Downloaded on : Tue Feb 28 20:46:51 IST 2023 R/SCR.A/2638/2023 ORDER DATED: 27/02/2023 ornaments, the complainant borrowed money from his relatives and paid up the outstanding loan amount with the financial institution and thereafter, mortgaged the gold ornaments with the applicants. The complainant appears to have regularly paid the interest amount for a period of 13 months upto October 2022. Thereafter, since there was a marriage in his family, the complainant requested the applicants to return the gold ornaments. However, the applicants refused to return the gold ornaments until the outstanding loan with interest is repaid. There is nothing on record to suggest that the applicants are registered to lend money. Further, when the complainant continued to repeat his request to return the gold ornaments, the applicants informed him that they do not have any gold ornaments belonging to the complainant with them and that if he wants his gold ornaments back, then he shall have to return the outstanding loan amount with 10% interest.
4. In a series of decisions, the Apex Court has explained the contours of the power under Section 482 Cr.P.C. In State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure and of the principles of law relating to the exercise of extraordinary power under Article 226 or the inherent powers under Section 482 Cr.P.C., the Apex Court gave the following categories of cases, by way of Page 3 of 5 Downloaded on : Tue Feb 28 20:46:51 IST 2023 R/SCR.A/2638/2023 ORDER DATED: 27/02/2023 illustrations, wherein such power could be exercised, either to prevent abuse of the process of the Court or otherwise to secure the ends of justice, making it clear that 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:
(a) 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;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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;
(c) 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;
(d) 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;
(e) where the allegations made in the FIR or complaint Page 4 of 5 Downloaded on : Tue Feb 28 20:46:51 IST 2023 R/SCR.A/2638/2023 ORDER DATED: 27/02/2023 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;
(f) 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;
(g) 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."
5. Considering the allegations made in the impugned FIR, prima facie, the involvement of the applicants in the alleged offence could not be ruled out. Thus, in view of the principle laid down in the aforesaid judgment and the facts and circumstances of the case, this Court does not find this to be a fit case where discretion under section 482 of Cr.P.C. could be exercised in favour of the applicants.
6. For the foregoing reasons, the petition is dismissed.
(SAMIR J. DAVE,J) PRAVIN KARUNAN Page 5 of 5 Downloaded on : Tue Feb 28 20:46:51 IST 2023