Gujarat High Court
Chandreshbhai Shivjibhai Shah vs State Of Gujarat on 9 April, 2025
NEUTRAL CITATION
R/SCR.A/5291/2016 ORDER DATED: 09/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 5291 of 2016
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CHANDRESHBHAI SHIVJIBHAI SHAH
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MS TEJAL A VASHI(2704) for the Applicant(s) No. 1
MR. MANASVI THAPAR(8198) for the Respondent(s) No. 2
MS SOHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 09/04/2025
ORAL ORDER
1. By this applications under Section 482 of the Code of Criminal Procedure (for short "the Code"), the applicant seek quashing of the FIR registered as C.R.No.I-111 of 2016 registered with Valsad Rural Police Station for the offence punishable under Sections 341, 447, 427 and 114 of the Indian Penal Code and further proceedings arising thereof.
2. Seeking quashment of FIR, learned advocate Ms.Vashi for the petitioner would submit that Sanjaybhai Dubey another accused who has played similar role in questioned FIR, has been acquitted by learned CJM, Valsad in Criminal Case No.2672 of 2018, whereby, learned CJM did not believe contents raised in the FIR. Role of the petitioner is no more than the role played by accused Sanjaybhai Dubey and by claiming parity, learned advocate Ms.Vashi submits to quash the FIR and allow the Page 1 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:28:04 IST 2025 NEUTRAL CITATION R/SCR.A/5291/2016 ORDER DATED: 09/04/2025 undefined petition. She would further submit that even otherwise what is stated in the FIR is no less than plaint in civil suit and therefore, civil litigation has been given color of criminality.
2.1. Upon above submissions, it is submitted to allow the application.
3. Previously, when the matter was listed before Co-ordinate Bench, learned advocate Ms.Thapar for respondent no.2 did not remain present. Even today, learned advocate Ms.Thapar is not present.
4. Learned APP Mr.Soham Joshi for the respondent State in the given facts would submit that order passed by learned CJM in Criminal Case No.2672 of 2018 is not carried to further to challenge before learned Sessions Court by way of appeal.
5. Having heard learned advocates for both the sides, at the outset, to understand dispute between the parties, let refer relevant part of the FIR as under (it is in Gujarati, for better understanding it is translated in English) :-
"About four months from today, due to my poor economic condition, as I could not pay the rent of four months, therefore, the landlord Mr. Chandresh Shah, residing at:
Marine lines, Mumbai, Maharashtra was demanding rent from us. Despite being told that presently situation is bad so, I shall finish the dues in 1-1.5 months after arranging the funds, he did not agree and despite knowing that, took the possession of Rexiom Industries handed over to us as per the rent agreement, without any notice, they entered our factory illegally and threw out our expensive Page 2 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:28:04 IST 2025 NEUTRAL CITATION R/SCR.A/5291/2016 ORDER DATED: 09/04/2025 undefined machinaries outside the factory in the compound, due to which my machineries were highly damaged. Even before, they forced my brother Jatin to vacate the factory and broke the board of factory and took undertaking in written to vacate the factory from my brother. As my brother Jatin came to know that our machineries have been thrown out of the factory and scrapped, he went to the factory, but he was not allowed to enter the factory. Therefore, I went to the Valsad Rural Police Station and made a complaint in writing on 11/03/2016 and thereafter, I also made a complaint in writing to the Superintendent of Police, Valsad. Thereafter, made a complaint at the office of Range I.G.P, Surat, on 16/4/2016. I have purchased these machineries through a bank loan and there is hypothecation of bank on these machineries, therefore, as we cannot move these machineries, we have not moved our machineries. Therefore, we have filed a Writ in the Hon'ble High Court of Gujarat vide Special Criminal Appeal No. 3843/2016. As the said case was tried in the Hon'ble High Court of Gujarat, an order was passed, Wherein at Sr. No. 4, the order was passed in our favour that as there is continuous rainy season, machineries shall be placed back in the factory so that the machineries do not get damaged. On the basis of the said order, when my brother Mr. Jatin Kishorbhai Jani went to keep my machineries in the factory on 16/9/2016, at that time, landlord Mr. Chandresh Shah, residing at Marine lines, Mumbai, Maharashtra, Sanjay Rajkishore Dubey, residing at: House no.8, next to H.P Petrol Pump, Ta: Dist: Valsad, were present there and raised objection against reinstating the machineries in the factory and stopped Jatinbhai and caused obstruction and did not let him keep our machineries in the factory. Thus, as we have rented the factory next to H.P Petrol Pump, at Saron village for 7 years till 24 July, 2020 through rent agreement, wherein machineries amounting to Rs. 3.5 crore approximately were installed upon entering the factory occupied by us without our knowledge, illegally, threw out machineries and scrapped, and caused damage, and as my brother Jatin went to reinstate the machineries as per the order of the Hon'ble High Court of Gujarat, he was stopped and obstructed. There is possibility that the accused for this case, can cause harm and in any way cause damage and Page 3 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:28:04 IST 2025 NEUTRAL CITATION R/SCR.A/5291/2016 ORDER DATED: 09/04/2025 undefined so, in context to this incident, it is my complaint to take legal action against them. My witness are those mentioned in the police complaint as well as those emerge during the police investigation."
6. Essentially, it is dispute between landlord and tenant. The tenant has not paid rent to the landlord and not adhered to agreement between the parties. Cheque given by tenant towards paying rent is also dishonored. In background of this aspects, allegations levelled in the FIR is that the petitioner is owner of factory running in demised promises, possession of which has been taken by the landlord - petitioner and Sanjaybhai Dubey, thrown out machinery on open space which is hypotheticated to Union Bank of India and has been permitted to placed in factory pursuant to order passed by this Court. It is stated that since petitioner did not permit to place back machinery in the factory premises, the complainant suffered huge loss and therefore, questioned FIR is filed under section 341, 447, 427 and 114 of IPC. Section 341 is defined for punishment for wrongful restraint which is offence under section 339 of IPC. Section 339 of IPC reads as under :-
"339. Wrongful restraint.--
Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person."
7. In the present case, reading the FIR, it does not prima facie attract definition of wrongful restrain and at no point of time, it Page 4 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:28:04 IST 2025 NEUTRAL CITATION R/SCR.A/5291/2016 ORDER DATED: 09/04/2025 undefined could be said that the petitioner has wrongfully restrain the complainant for the amount which he has not paid towards rent. Thus reading of FIR itself fail to attract offence under section 341 of IPC.
8. Section 447 of IPC alleged in the FIR is in regard to criminal trespass. It is in regard to punishment for criminal trespass which is defined in section 441 of IPC. Possession if has been interfered with intent to commit offence or to intimidate, insult or annoy any person in possession of such property is criminal trespass. Impugned FIR again fails to establish allegations levelled against the petitioner.
9. One should not forget that the petitioner is landlord and there is no allegations levelled in the FIR that possession of the complainant has been interfered with intimidate, insult or annoy the complainant.
10. So far as offence under section 427 of IPC is concerned, it is in regard to mischief causing damage to the amount of fifty Rupees. I fail to understand how mischief has taken place on reading FIR.
11. In nutshell, on plain reading of FIR, it disclose that it is counter blast at the behest of complainant not to vacate demised premises. What could be noticed that reference of the order passed by this Court in Special Criminal Application No.3843 of 2016 in FIR is concerned, it is recalled by Co-ordinate Bench on 08.09.2016. Copy of the order dated 08.09.2016 is placed on Page 5 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:28:04 IST 2025 NEUTRAL CITATION R/SCR.A/5291/2016 ORDER DATED: 09/04/2025 undefined record by learned advocate Ms.Vashi.
12. Noticeably, another accused - Sanjaybhai Dubey who has faced trial succeeded in getting acquittal order from learned CJM in Criminal Case No.2672 of 2018. Copy of the judgment is placed on record. Learned CJM after appreciating evidence led by prosecution in the matter, believed that prosecution failed to prove offence beyond reasonable doubt. Role of the petitioner cannot be differentiated from role played by Sanjaybhai Dubey.
13. In view of above, the application is allowed. The impugned FIR being C.R.No.I-111 of 2016 registered with Valsad Rural Police Station as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the applicant herein. Direct service is permitted.
(J. C. DOSHI,J) SATISH Page 6 of 6 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Apr 15 2025 Downloaded on : Tue Apr 15 21:28:04 IST 2025