NEUTRAL CITATION
R/SCR.A/8130/2018 ORDER DATED: 05/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8130 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8133 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 8134 of 2018
==========================================================
SUDHABEN RAMESHBHAI PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR HARDIK A DAVE(3764) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 05/09/2023
COMMON ORAL ORDER
1. These applications are filed under Articles 226 and 227 of the Constitution of India for quashing and setting aside the order passed by the learned 6 th Additional Chief Judicial Magistrate, Surat below Exhs.14, 15 and 16 in Criminal Case No.63208 of 2016 dated 18.7.2018 and discharge the petitioners from all the charges levelled against them.
2. The brief facts leading to filing of these petitions are that FIR came to be registered against the present petitioners and others for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 120(B) of the Indian Page 1 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023 NEUTRAL CITATION R/SCR.A/8130/2018 ORDER DATED: 05/09/2023 undefined Penal Code being C.R.No.I-75 of 2016 before Adajan Police Station, wherein after investigation, the chargesheet was filed against the present petitioners and others. The petitioners gave application below Exhs.14,15 and 16 respectively for discharging them from the above offences as there is no sufficient material in the chargesheet against them to frame the charge, which was rejected by the learned trial Court. Therefore, these petitions are filed.
3. It is further averred that though the applications were given before the learned trial Court for not to frame the charge against the present petitioners, the same were also rejected and charge against the petitioners was framed, though the petitioners had given application for adjournment to approach this Court.
4. Heard learned advocate Mr.Dave for the petitioner and learned APP for the respondent-state. 4.1 Learned advocate Mr.Dave for the petitioners has drawn my attention towards the contents of FIR and submitted that the dispute is essentially between Rameshbhai Patel, Kantibhai Patel and Shashikantbhai Patel regarding the business transaction by way of selling of the office premises and the present petitioners who are lady accused Page 2 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023 NEUTRAL CITATION R/SCR.A/8130/2018 ORDER DATED: 05/09/2023 undefined and related to the them who are other accused persons in the FIR are falsely implicated in the FIR. He submitted that as such there is no role attributed to the present petitioners and merely because they are the spouses of the respective accused persons mentioned above, they are falsely implicated. 4.2 He submitted that the said transaction is carried out by using the bank account pursuant to the purchase of office premises and therefore the present petitioners were falsely dragged into the proceedings by making them as accused in the FIR filed under the provisions of Sections 406, 420, 465, 467, 468, 471, 120(B) of Indian Penal Code. The ingredients of these sections are not satisfied prima facie so far as the present petitioners are concerned. He submits that such complaint is filed with malafide intention with a view to harass all the family members of the accused persons by impleading everybody irrespective of any overt act or any abetment made by the present petitioners. 4.3 He submitted that not only that, no ingredients even under Section 120B can be said to be satisfied qua the present petitioners and the present proceedings are nothing but abuse of process of law. He has further submitted that considering the tenor of the complaint and factual position, it is alleged in the complaint that accused persons have sold the properties to the complainant and other relatives and Page 3 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023 NEUTRAL CITATION R/SCR.A/8130/2018 ORDER DATED: 05/09/2023 undefined they were put as mortgage in the bank and now the threat is given by the accused persons and therefore the complaint is filed. He has further submitted that the accused persons were told by the complainant to perform sale deed for the properties for which the promissory note is given upon which the accused persons refused to do so. The complainant has deposited the cheques which were given to them as security which came to be dishonoured and therefore the petitioner and other co-accused persons, in collusion of each other committed fraud to the complainant and his friends. 4.4 He further submitted that even if the tenor of the FIR is considered, no specific role qua the present petitioners is attributed and none of the petitioners had prepared any bogus or forged documents and even not made forged signature on any of the documents and therefore there is no entrustment to the respective petitioners so far as the said fraud and cheating are concerned and therefore, such charge is not sustainable against the present petitioner. He has further submitted that from the bare reading of the entire papers available of the chargesheet, it is coming on record that the petitioners have neither availed any loan from the bank nor tried to make efforts to avail loan from the bank. He has further submitted that the petitioners have never mortgaged any property in connection of the loan and the Page 4 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023 NEUTRAL CITATION R/SCR.A/8130/2018 ORDER DATED: 05/09/2023 undefined petitioner had not given any assurance to the complainant or any witness and therefore also charges as alleged in the FIR are not sustainable against the present petitioner. 4.5 He has further submitted that the petitioner not written any sale deed in favour of the complainant and therefore it is not coming on record that the petitioner had prepared any bogus documents and therefore also the charge as alleged is not sustainable against the petitioners. He has further submitted that in the proceeding initiated by the complainant pursuant to the section 138 of the NI Act which are pending before the concerned Courts and notices are received by the present petitioner and other accused persons, the petitioner submits that nowhere in that complaint, the complainant has stated about the mortgage related properties and documents and therefore also the charges as alleged is not sustainable against the present petitioners. 4.6 He has further submitted that the complainant had already filed private complaint under Section 138 of the NI Act in the year 2015 and after almost delay of one year, the present FIR is also filed with a view to harass the present petitioners by implicating him in the alleged offences. He, therefore, submitted that when the discharge application is filed before the learned trial Court, the learned trial Court has not properly considered these aspects in appropriate Page 5 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023 NEUTRAL CITATION R/SCR.A/8130/2018 ORDER DATED: 05/09/2023 undefined manner and therefore he has submitted that the present petition are required to be allowed qua the present petitioners by granting the prayers in the present petition. 4.7 He has relied on the judgment in the case of Mohammed Ibrahim and Others V/s State of Bihar and Another reported in 2010(1) GLH 184.
4.8 He, therefore, submitted that no ingredients of the offences invoked are satisfied and therefore these petitions are required to be allowed by exercising powers under Article 226 of the Constitution of India by quashing the impugned orders passed by the learned trial Court.
5. Per contra, learned APP Mr.Jayswal has strongly opposed the prayers made at the bar and has submitted that prima facie, the learned trial Court has rightly considered the application filed under Section 239 of the Code and has rejected the said application by giving cogent and convincing reasons. He has submitted that the learned trial Court has rightly found that the execution of sale deed has taken place despite having mortgage on the property and therefore he has submitted that prima facie case is made out against all the accused and at this stage of the trial, the learned trial Court cannot appreciate the charges pertaining to present Page 6 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023 NEUTRAL CITATION R/SCR.A/8130/2018 ORDER DATED: 05/09/2023 undefined petitioners separately. He has further submitted that even section 120B is also invoked in the FIR and therefore considering the fact that the present petitioners are the spouses of the respective accused persons who have also played active part in the said offences and therefore the trial Court has rightly considered these aspects and rightly rejected the application of the present accused persons for discharge. He, therefore, prayed to dismiss these petitions.
6. I have considered the rival submissions made at the bar and also perused the material placed on record.
"Section 239 of the Code reads as under:
239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
7. The present petitioners are the co-accused in the impugned FIR and it transpires that there is some transaction made out from the account of one of the petitioners but for other two petitioners of the respective petitions, there is no transaction available on the record. Prima facie, it transpires that no property of any of the petitioner is mortgaged with the bank. It prima facie also Page 7 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023 NEUTRAL CITATION R/SCR.A/8130/2018 ORDER DATED: 05/09/2023 undefined transpires that the petitioner has not availed any bank loan. It also transpires that essentially the dispute is between the other co-accused persons who have entered in the transaction of the premises in question by way of registered sale deed and thereafter some promissory note is also issued pursuant to the said transaction. However, while considering the promissory note which is produced on record, there is no reference about such transaction entered by the parties but promissory note is executed pertaining to some hand loan given by the respective present petitioners to the complainant. That is not sufficient to connect the present petitioners in the said offence as there is no whisper about the other transaction as alleged in the complaint except the reference of this promissory note.
8. Now, the chargesheet is also filed and from the papers of the chargesheet, no material is found which can connect the present petitioners in the offence in question and therefore the ingredients of the sections which are invoked in the present FIR are not made out.
9. Considering the material available on the record, I am of the opinion that there is no sufficient material which can connect the present petitioners of respective petitions in the alleged offences. Merely executing any promissory note Page 8 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023 NEUTRAL CITATION R/SCR.A/8130/2018 ORDER DATED: 05/09/2023 undefined itself is not sufficient to connect the present petitioners in the said transaction. Moreover, assuming for the sake of argument that there is loan availed from the concerned bank by the other co-accused persons, then also, it transpires that from the material available on the record, that as such there is nothing found out by the investigating agency that any loan is availed by the accused persons regarding those properties which is sold to the complainant. In any case, the learned trial Court has failed to consider the material available on the record and has erred in not exercising power under Section 239 of the Code.
10. At this juncture, it is fruitful to referred to the Hon'ble Apex Court in case Sanjay Kumar Rai V/s State of Uttar Pradesh and Another reported in 2021 SCC OnLine SC 367, whereby the Hon'ble Apex Court has said that the Court is duty bound to appreciate the material available on the record and Court cannot act merely as a post office in such matters. The Court has to apply its mind by considering the material available on the record and after considering the material, the Court can come to the conclusion that in the present case. From the reasoning given by the trial Court in the impugned orders, there is no whisper about the same and such application is rejected on the erroneous ground that the petitioners have availed the loan which is not supported Page 9 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023 NEUTRAL CITATION R/SCR.A/8130/2018 ORDER DATED: 05/09/2023 undefined by any material available on the record.
11. Paragraphs 16 to 19 of the judgment in the case of Sanjay Kumar Rai (supra), read as under:
"16. The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. That apart, this Court in the above-cited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its afore-stated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law.
17. Further, it is well settled that the trial court while Page 10 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023 NEUTRAL CITATION R/SCR.A/8130/2018 ORDER DATED: 05/09/2023 undefined considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal ]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.
18. This brings us to the present case wherein the High Court has not gone into the merits of the case and did not analyze the case in light of the settled law referred to above.
19. The High Court has committed jurisdictional error by not entertaining the revision petition on merits and overlooking the fact that 'discharge' is a valuable right provided to the accused. In line with the fact that the High Court and the court below have not examined the fairness of criminal investigation in this case and other related aspects concerning improvement of witness statements, it is necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. Accordingly, we set aside the impugned order dated 28.11.2018 and remand the case back to the High Court for its reconsideration in accordance with law."
Page 11 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023
NEUTRAL CITATION R/SCR.A/8130/2018 ORDER DATED: 05/09/2023 undefined
12. In view of the above discussion and considering the settled legal position of law and considering the scope of powers under Section 239 of the Code, in the present case, I am of the opinion that the learned trial Court has committed gross error of jurisdiction which is vested in it by not properly appreciating the material available on the record as, on the perusal of material, no sustainable material is available on the record which can connect the present petitioners in the offences which are alleged in the FIR as well as chargesheet.
13. Accordingly, these petitions are allowed. The impugned orders passed by the learned 6 th Additional Chief Judicial Magistrate, Surat below Exhs.14, 15 and 16 in Criminal Case No.63208 of 2016 dated 18.7.2018 are hereby quashed and set aside and the petitioners of these petitions are discharged from all the charges levelled against them pursuant to the FIR being C.R.No.I-75 of 2016 before Adajan Police Station, Surat.
(SANDEEP N. BHATT,J) SRILATHA Page 12 of 12 Downloaded on : Sat Sep 16 16:08:48 IST 2023