NEUTRAL CITATION
R/CR.MA/34644/2016 JUDGMENT DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 34644 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RASENDRASINH BHAVANISINH THAKUR
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR HASIT VED for MR. BHADRISH S RAJU(6676) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 31/08/2023
ORAL JUDGMENT
1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 ('the Code' for brevity), whereby the applicant has prayed that the F.I.R. being C.R. No.I-14 of 2011 dated 29.07.2011 registered with Surat City DCB Police Station, Surat, and charge sheet filed pursuant thereto as well as Criminal Case No.26970 of 2011 pending in the Page 1 of 10 Downloaded on : Sun Sep 17 03:04:49 IST 2023 NEUTRAL CITATION R/CR.MA/34644/2016 JUDGMENT DATED: 31/08/2023 undefined Court of learned Chief Judicial Magistrate, Surat, arising out of said FIR be quashed and set aside. This Court while issuing rule on 27.12.2016, granted ad-interim relief in terms of para 8(b) and thereby investigation has been stayed. However, from the record it appears that before the order was served to the concerned Investigating Officer, charge sheet was filed and, therefore, the applicants have also prayed that the charge sheet filed pursuant to filing of the aforesaid F.I.R. be quashed and set aside.
2. Heard learned advocate Mr.Hasit Ved for the applicants; learned Additional Public Prosecutor Mr.Dhawan Jayswal for respondent no.1-State. The learned advocate for the applicants referred to the impugned F.I.R. which is produced at page 18 of the compilation and submitted that in the said F.I.R. mainly it has been stated that the complainant is a businessman and his son is doing the business of purchase and sale of land in Surat. It is alleged that accused no.1, who is doing the business of land at Bengaluru came in contact with the son of the complainant, namely, Ketan as well as the complainant. The complainant had an interest to purchase certain antique items and in that context he had received a phone call from a seller from Delhi somewhere in the month of August 2010, whereby the said person informed the complainant that he wants to sell Rice Puller to him. Accused no.6 advised him that since Page 2 of 10 Downloaded on : Sun Sep 17 03:04:49 IST 2023 NEUTRAL CITATION R/CR.MA/34644/2016 JUDGMENT DATED: 31/08/2023 undefined there are several cheaters at Delhi and, therefore, he should take Ketan with him. It was also informed that the complainant can stay in the house of accused no.1. It is further alleged that accused no.1 received the complainant and his son-Ketan at the Airport and took them to his house, wherein they were beneficiaries of hospitality for three days, during which period no phone call was received from antique-item seller. Therefore, the complainant and his son returned. It is further alleged that after some time, antique-item seller called and informed the complainant to come to Palia, situated on Indo-Nepal border. At that time, applicant no.2-original accused no.2 informed the complainant that there are several cheaters in Palia and also told him that original accused no.5 would accompany the complainant with 4-5 persons. At that time also no phone call was received from antique-item seller, when he reached Palia and therefore, the complainant returned to Surat. It is further alleged that subsequently, in the first week of April 2011, the complainant received phone call from antique-item seller and the complainant was asked to come to Palia with Rs.5 lacs for taking antique-item. The complainant, ultimately, purchased antique-item from the said seller after payment of Rs.5 lacs, which the complainant packed properly and put his signature. At that time, original accused no.5 informed the complainant that it was unsafe to take valuable item Page 3 of 10 Downloaded on : Sun Sep 17 03:04:49 IST 2023 NEUTRAL CITATION R/CR.MA/34644/2016 JUDGMENT DATED: 31/08/2023 undefined with him to Surat and, therefore, accused no.5 had asked the complainant to give the antique-item to him and he would bring it to Surat personally, and thereafter, he will hand over the same to the complainant. However, thereafter, accused no.5 demanded a sum of Rs.16 crores for bringing the antique-item from Palia to Surat. At that time, applicants no.1 and 2 as well as original accused no.6 asked the complainant to go back to his house and that they would talk and settle the matter. It is further alleged that applicant no.1 and original accused no.6 came to the house of the complainant on the next day and informed that these people are uncontrollable and ultimately, it was decided that the complainant should give Rs.5.25 crores to original accused no.5. It was also threatened that these people could kidnap or murder Ketan, who lived outside and, therefore, it was decided to give certain amount in installments. Ultimately, the complainant agreed and it is alleged that applicant no.1 in his writing had written on a piece of paper that the complainant needs to make payment of Rs.50 lacs on 20.05.2011, Rs.75 lacs on 23.06.2011, and thereafter Rs.4 crores on 23.10.2011.
It is further alleged in the F.I.R. that when the complainant has not sent money on due date as mentioned in the said piece of paper, original accused no.6 and applicant no.1 Page 4 of 10 Downloaded on : Sun Sep 17 03:04:49 IST 2023 NEUTRAL CITATION R/CR.MA/34644/2016 JUDGMENT DATED: 31/08/2023 undefined made phone call to the complainant and pressurized him for making payment. However, the complainant did not send money and thereafter, original accused no.5 approached the complainant and demanded money and also gave threats that the complainant will be kidnapped. He therefore, informed his brother-Naresh. Said Naresh has made arrangement for Rs.24 Lacs. Thereafter, original accused no.6 made phone calls and demanded money. Ultimately, when the complainant informed DCB Police, accused nos.1 to 4 - were arrested.
3. The learned advocate for the applicants mainly contended that the ingredients of the alleged offence are not made out in the impugned F.I.R. so far as the applicant herein is concerned and the story given by the complainant in the impugned F.I.R. is not at all believable. The conspiracy is hatched by the complainant for oblique purpose and though DCB Police Station, Surat, was not having territorial jurisdiction, the complainant has lodged the F.I.R. with the said Police Station. This itself shows that there is mala fide intention on the part of the complainant.
4. The learned advocate for the applicant, thereafter contended that the allegations levelled in the impugned Page 5 of 10 Downloaded on : Sun Sep 17 03:04:49 IST 2023 NEUTRAL CITATION R/CR.MA/34644/2016 JUDGMENT DATED: 31/08/2023 undefined F.I.R. are so absurd, inherently improper, on the basis of which no prudent person can afford to reach to conclusion that there is sufficient ground for proceeding against the accused with regard to the offence alleged in the F.I.R. The complainant has not given any phone number of the alleged antique-item seller, which shows lack of credibility of the information, because the alleged antique-item which was to be brought from Palia to Surat does not exist. It is also not believable that for brining the antique-item worth Rs.5 Lacs from Palia to Surat, one can demand a sum of Rs.16 Crores from the complainant and, ultimately, the complainant would agree under compulsion to pay Rs.5.25 Crores in instalments. The learned advocate, therefore, submitted that the impugned F.I.R. be quashed and set aside.
5. Without prejudice to the aforesaid contention, the learned advocate for the applicant further contended that there was a civil dispute between the concerned accused and the complainant and when the amount due from the complainant was asked he filed the impugned F.I.R. against the accused. The learned advocate, at this stage, has referred to news item published in the concerned newspaper, which is produced at page 33 of the compilation, and submitted that it is a case of business or civil dispute between the concerned accused and the complainant, and the Page 6 of 10 Downloaded on : Sun Sep 17 03:04:49 IST 2023 NEUTRAL CITATION R/CR.MA/34644/2016 JUDGMENT DATED: 31/08/2023 undefined complainant with a view to avoid payment of Rs.5 Crores, with mala fide intention, has filed the impugned F.I.R. and therefore, the same be quashed and set aside.
6. The learned advocate for the applicant has placed reliance upon decision rendered by the Hon'ble Supreme Court in the case of G. Sagar Suri and another Vs. State of U.P. and others, reported in (2000) 2 SCC 636 and decision rendered in State of Haryana and others Vs. Bhajan Lal and others, reported in A.I.R. 1992 SC 604 in support of his contention.
7. Learned advocate appearing for the applicant thereafter referred to the charge sheet papers and submitted that the Investigating Officer has recorded statements of brother of the complainant, namely, Naresh as well as driver of the complainant. However, statement of no independent witnesses is recorded and thus, two persons have tried to help the complainant by giving statement before the concerned Police. However, despite the ingredients of the alleged offence are not made out against the applicant and the story put forth by the complainant is so absurd and not believable, the Investigating Officer has committed error in filing charge sheet against the applicant. Therefore, the charge sheet filed pursuant to the impugned F.I.R. be quashed and set aside. Page 7 of 10 Downloaded on : Sun Sep 17 03:04:49 IST 2023
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8. On the other hand, learned APP has submitted that the Investigating Officer has filed charge sheet against the accused as there is prima facie case against the accused and, therefore, this application may not be entertained. It is further contended that while reading the impugned F.I.R. ingredients of the alleged offence are prima facie made out and, therefore, the present application be dismissed. The learned APP has also referred to the averments made in the charge sheet papers which are annexed with the F.I.R. and thereafter submitted that the Investigating Officer has found sufficient material against the accused and therefore, the charge sheet is filed and therefore, this Court may not exercise powers vested in it under section 482 of the Code. Therefore, the present application be dismissed.
9. Having considered the submissions canvassed on behalf of the learned advocates for the parties and having gone through the 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 120-B 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 Page 8 of 10 Downloaded on : Sun Sep 17 03:04:49 IST 2023 NEUTRAL CITATION R/CR.MA/34644/2016 JUDGMENT DATED: 31/08/2023 undefined 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 pay Rs.5.25 Lacs in three instalments 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 were apprehended. From the charge sheet papers also, it cannot be said that the present applicant is in any way connected with the alleged incident. Ingredients of the alleged offence are also not made out so far as the applicant is 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 applicant. Thus, looking to the overall facts and circumstances of the present case, and Page 9 of 10 Downloaded on : Sun Sep 17 03:04:49 IST 2023 NEUTRAL CITATION R/CR.MA/34644/2016 JUDGMENT DATED: 31/08/2023 undefined keeping in mind the law laid down by the Hon'ble Supreme Court with regard to exercise of 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.
11. In view of the discussion made herein above, the impugned F.I.R. being C.R. No.I-14 of 2011 dated 29.07.2011 registered with Surat City DCB Police Station, Surat and charge sheet filed pursuant thereto as well as Criminal Case No.26970 of 2011 pending in the Court of learned Chief Judicial Magistrate, Surat, arising out of said FIR, are hereby quashed and set aside qua the present applicant. The application is accordingly allowed. Rule is made absolute.
Sd/-
(SANDEEP N. BHATT,J) R.S. MALEK Page 10 of 10 Downloaded on : Sun Sep 17 03:04:49 IST 2023