NEUTRAL CITATION
R/CR.MA/4884/2015 ORDER DATED: 08/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 4884 of 2015
With
R/CRIMINAL MISC.APPLICATION NO. 10792 of 2014
With
R/CRIMINAL MISC.APPLICATION NO. 4901 of 2015
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BIJO VARGHESE S/O. KADUPPILKUNNEL SCARIA VARKEY
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR A R ROCKEY for MR. HARDEEP L MAHIDA and MR ASHISH DAGLI,
ADVOCATES for the Applicants
MR CHINTAN DAVE, APP for the Respondent(s) No. 1 - State
MR PARAM BUCH, ADVOCAET for MR HRIDAY BUCH(2372) for the
Respondent(s) No. 2 - Complainant
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/11/2023
ORAL ORDER
1. By way of present applications, under Section 482 of the Code of Criminal Procedure, 1973, the applicants seek quashment of the impugned FIR being CR-I No.229 of 2013 registered with the Madhupura Police Station, District : Ahmedabad City for the offences punishable under Sections 408, 418, 419, 465, 467, 471 and 120B of the Indian Penal Code.
2. The brief facts of the prosecution case are that one of the accused viz., Piyushkumar Dilipsinh Chauhan Page 1 of 10 Downloaded on : Fri Nov 10 20:56:30 IST 2023 NEUTRAL CITATION R/CR.MA/4884/2015 ORDER DATED: 08/11/2023 undefined (Rajput) was working as a Supervisor in the company of the complainant viz., Ganesh Securities for the work with the Corporation Bank at Bank Currency Chest, Navrangpura and for that work, the complainant has given authority in favour of the said accused - Piyushbhai for day to day work on the stamp paper of Rs.20/-, wherein he put his photograph instead of the complainant and made forged stamp and letter pads in the name of Ganesh Securities, written his address, manipulated in the RC Book and in connivance with the other accused viz., Bijo Verghese, who is a period of security agency and Sivadasan, who is an officer of the bank and thereby siphoned huge money of Rs.52 lakhs and committed an offence as alleged in the impugned FIR. Hence, the impugned complaint.
3. Heard learned advocates. Rule. Learned APP and learned advocate for the complainant waive service of notice of rule for and on behalf of the respective respondents forthwith. With consent of all the learned advocates, these matters are taken up for hearing and final disposal today. Since all the matters are arising from one impugned FIR, all these matters are heard together with consent of the learned advocate for the parties.
4.1 Learned advocates for the applicants have Page 2 of 10 Downloaded on : Fri Nov 10 20:56:30 IST 2023 NEUTRAL CITATION R/CR.MA/4884/2015 ORDER DATED: 08/11/2023 undefined submitted that the applicants have not committed any offence as alleged in the impugned FIR. They have submitted that the applicants are innocent and they were performing their duties. They have submitted that they have no any intention to grab the money or get the monetary benefits by the complainant. They have submitted that the complainant has falsely implicated the applicants in the offence in question. They have submitted that there is no question of doing fraud with the complainant as they are discharging their duties. 4.2 They have submitted that the complainant has not specifically stated any role of any individual accused in the impugned FIR. They have submitted that there is a delay in lodging the impugned complaint and it is not explained properly by the complainant. They have submitted that the allegations levelled against the applicants are baseless and therefore also, the impugned FIR may be quashed. They have submitted that the letter of authority was given for smooth running of the business and not for any other purpose. They have submitted that there was a complaint lodged against the complainant at Mahidharpura Police Station in the year 2010 for cheating and forgery also. They have submitted that if the complaint is considered as it is, the role of one of the accused who was working in the bank as a responsible officer does not commit any offence as alleged in the impugned FIR. Page 3 of 10 Downloaded on : Fri Nov 10 20:56:30 IST 2023
NEUTRAL CITATION R/CR.MA/4884/2015 ORDER DATED: 08/11/2023 undefined They have submitted that there is no role at all of that accused in the commission of offence as alleged. They have submitted that there is no authority or power with any applicants to engage any person in the security agency. 4.3 They have submitted that no prima facie case is made out against the applicants. They have submitted that all these applications may be allowed.
5. Per contra, learned advocate Mr.Buch for the complainant has vehemently opposed these applications. He has submitted that the applicants have jointly committed an offence and therefore, these applications may be dismissed. He has submitted that it is matter is trial and this Court should not exercise its powers under Section 482 of the Code of Criminal Procedure, 1973 at this stage in such circumstances. He has submitted that let the applicants be faced the trial. He has submitted that these applications may be dismissed.
6. Learned APP Mr.Dave for the State has submitted that there is prima facie case against the applicants and therefore, all these applications may be dismissed. He has submitted that there are evidence against the applicants and therefore, let they be faced the trial. He has submitted that Page 4 of 10 Downloaded on : Fri Nov 10 20:56:30 IST 2023 NEUTRAL CITATION R/CR.MA/4884/2015 ORDER DATED: 08/11/2023 undefined this Court should exercise the powers under Section 482 of the Code very sparingly in favour of the applicants. He has submitted that all these applications may be dismissed. 7.1 I have considered the rival submissions made by the learned advocates for the respective parties. I have perused the documents available on record. I have gone through the impugned FIR which is on record. From record it transpires that, prima facie offence is made out against the applicants. All the applicants have committed an offence jointly and in connivance with each other. Further, there is no dispute about the forgery / cheating by the applicants with the complainant in the name of his security agency. Further, there is no dispute about the fact that the applicants did not possess any security agency. The accused have committed an offence in the name of the security agency of the complainant itself and that too without the knowledge of the complainant. Further, looking to the statements recorded during the investigation, it prima facie seems that the applicants have committed an offence and all the applicants are involved in the commission of offence. 7.2 At this stage, it would be fruitful to refer to the decision of the Hon'ble Apex Court in the case of Gunmala Sales Pvt. Ltd., versus Anu Mehta and Ors., reported in Page 5 of 10 Downloaded on : Fri Nov 10 20:56:30 IST 2023 NEUTRAL CITATION R/CR.MA/4884/2015 ORDER DATED: 08/11/2023 undefined (2015) 1 SCC 103, where it is observed that this Court should not conduct mini trial at this stage. The applicants have approached this Court by filing a quashing application under Section 482 of the Code of Criminal Procedure, 1973 and therefore, at this stage, this Court should exercise the powers under Section 482 of the Code very sparingly. The ingredients of Section 482 of the Code are very clear that if there is a prima facie case against the applicants / accused, the Court should not exercise its powers in favour of the applicants / accused at this stage. The relevant paragraph 33(d) of the said decision reads as under :
"33(d) No restriction can be placed on the High Court's powers under Section 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of the Court. There are no fixed formulae to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. The High Court at that stage does not conduct a mini trial or roving inquiry, but, nothing prevents it from taking unimpeachable evidence or totally acceptable circumstances into account which Page 6 of 10 Downloaded on : Fri Nov 10 20:56:30 IST 2023 NEUTRAL CITATION R/CR.MA/4884/2015 ORDER DATED: 08/11/2023 undefined may lead it to conclude that no trial is necessary qua a particular Director."
7.3 Further, it would also be fruitful to refer to the decision of the Hon'ble Apex Court in the case of CBI versus Aryan Singh recorded in Criminal Appeal No.1025-1026 of 2023, more particularly paragraph 4 thereof, which reads as under :
"4. Having gone through the impugned common judgment and order passed by the High Court quashing the criminal proceedings and discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in quashing the entire criminal proceedings in exercise of the limited powers under Section 482 Cr.P.C. and/or in exercise of the powers under Article 226 of the Constitution of India.
4.1 From the impugned common judgment
and order passed by the High Court, it
appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by Page 7 of 10 Downloaded on : Fri Nov 10 20:56:30 IST 2023 NEUTRAL CITATION R/CR.MA/4884/2015 ORDER DATED: 08/11/2023 undefined the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not".
Page 8 of 10 Downloaded on : Fri Nov 10 20:56:30 IST 2023 NEUTRAL CITATION R/CR.MA/4884/2015 ORDER DATED: 08/11/2023 undefined 4.2 One another reason pointed by the High Court is that the initiation of the criminal proceedings / proceedings is
malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been chargesheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings / proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried. "
7.4 Under the circumstances, since there is prima facie case against the applicants, let the applicants be faced the trial and these applications therefore need not be entertained by this Court at this stage. This Court restricts itself at this stage to elaborate the material / evidence as it may prejudice Page 9 of 10 Downloaded on : Fri Nov 10 20:56:30 IST 2023 NEUTRAL CITATION R/CR.MA/4884/2015 ORDER DATED: 08/11/2023 undefined the case of the applicants during the trial.
8. For the reasons recorded above, all these applications are dismissed. Rule is discharged.
(SANDEEP N. BHATT,J) M.H. DAVE Page 10 of 10 Downloaded on : Fri Nov 10 20:56:30 IST 2023