Bharatbhai Khimjibhai Talpada vs State Of Gujarat

Gujarat High Court

Bharatbhai Khimjibhai Talpada vs State Of Gujarat on 21 February, 2025

                                                                                                              NEUTRAL CITATION




                             R/CR.MA/5634/2019                                  ORDER DATED: 21/02/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                                           FIR/ORDER) NO. 5634 of 2019

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                                                 BHARATBHAI KHIMJIBHAI TALPADA
                                                             Versus
                                                    STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1
                       NOTICE SERVED for the Respondent(s) No. 2
                       MR ROHAN RAVAL, APP for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                                            Date : 21/02/2025

                                                             ORAL ORDER

1. This petition under section 482 of Cr.P.C. to quash and set aside FIR being C.R.No.I-14 of 2019 registered with Padadhari Police Station, Rajkot Rural for the offence under section 406, 420, 506(2) and 114 of IPC read with section 3(1)(r) and 3(2)(5) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.

2. Brief facts of the case are as under :-

2.1 It is alleged in the complaint that complainant owns a tractor bearing registration no. GJ-3 DD-8312 with trailer bearing registration no. GJ-3 Y-1120, which was purchased by him from one Shri Dhambha Darbar on 09.07.2010 by paying an amount of Rs.2,70,000/-. That the said vehicle was rented by him to accused no.1 and accused no.3 i.e. Shri Maheshbhai Pitambarbhai Rathod and Shri Shaileshbhai Adivasi who used to Page 1 of 9 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 22:32:44 IST 2025 NEUTRAL CITATION R/CR.MA/5634/2019 ORDER DATED: 21/02/2025 undefined pay him Rs.8,000/-per month. It is the case of the respondent no.2 that till today, the accused nos.1 and 3 have paid him an amount of Rs.92,000/-. The said tractor was given on rent for a period of 3 years and the accused nos.1 and 3 have not paid rent since past 2 years and an amount of Rs.1,92,000/- is due and payable. It is the case of the respondent no.2 that on 20.01.2019, he went to ask for the said amount from accused no.1 at his premises, wherein the complainant was asked to forget about the money and the vehicle and the complainant was given abuses to his caste, for which, he had given a written complaint to the police on 24.01.2019. It has been further alleged that thereafter, 4 persons including the applicant threatened him for withdrawing the said complaint and he also received one telephone from Mr. Naresh Baraiya asking him to withdraw the complaint. Thus FIR in question has been filed.

3. Heard learned advocates for the parties.

4. Learned advocate for the petitioner submitted that on bare reading of FIR, no offence under IPC or Atrocities Act is made out. It is submitted that no criminality of any kind is found against the applicant in the complaint. He would further submit that for establishing offence of criminal breach of trust and forgery, there is no necessary averments coming out from the bare reading of FIR. It is submitted that on reading FIR, prima facie it appears that it is purely rental dispute. It is submitted that by no means, for such transaction criminal proceedings is maintainable. Therefore, he submits to allow the petition.

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5. Per contra, learned APP prima facie case is made out against the petitioner and therefore, it is submitted to dismiss the petition by allowing investigating officer to proceed further in the matter.

6. Having heard learned advocate for both the sides, what could be notice that impugned FIR is filed for the offence punishable under section 406, 420, 506(2) and 114 of Indian Penal Code.

7. The essential ingredients of the offense of criminal breach of trust can be stated as are:

"(1) The accused must be entrusted with the property or with dominion over it, (2) The person so entrusted must use that property, or; (3) The accused must dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation, (a) of any direction of law prescribing the mode in which such trust is to be discharged, or; (b) of any legal contract made touching the discharge of such trust."

8. The essential ingredients of section 405 of IPC are as under

:-

"Entrustment" of property under Section 405 of the Indian Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, 'in any manner entrusted with property'. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of 'trust'. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code."

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9. The essential ingredients of offence of cheating are as under :-

"1. Deception of any person

2. (a) Fraudulently or dishonestly inducing that person- (i) to deliver any property to any person: or(ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were no so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body,mind,reputation or property."

10. In view of above, a fraudulent or dishonest inducement is an essential ingredient of offence. A person who dishonestly induces another person to deliver any property is liable for the offence of cheating. Section 420 of IPC is a serious form of cheating that includes inducement in terms of delivery of property as well as valuable securities. This section is also applicable to matters where the destruction of the property is caused by way of cheating or inducement. Punishment for cheating provided under this section is up to 7 years and also makes the person liable to fine. To establish offence of cheating and inducement of deliver of property, following ingredient need to be proved :-

"1. The representation made by the person was false.

2. The accused had prior knowledge that the representation he made was false.

3. The accused made false representation with dishonest intention in order to deceive the person to whom it was made.

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4. The act where the accused induced the person to deliver the property or to perform or to abstain from any act which the person would have not done or had otherwise committed."

11. Having gone through FIR on record, it appears that there is rental dispute between the parties. According to FIR, vehicle was rented by complainant to accused no.1 and accused no.3 who used to pay him Rs.8,000/-per month. The accused did not pay the amount. The vehicle tractor was given on rent for a period of 3 years and the accused nos.1 and 3 have not paid rent since past 2 years and an amount of Rs.1,92,000/- was due and complainant was given abusive language on his caste. This has been pleaded as cause of action to file FIR.

12. At this stage, I may refer to para 36 of the judgment of Hon'ble Apex Court in the case of Vijay Kumar Ghai (supra). Para 36 reads as under :-

"36. Having gone through the complaint/FIR and even the chargesheet, it cannot be said that the averments in the FIR and the allegations in the complaint against the appellant constitute an offence under Section 405 & 420 IPC, 1860. Even in a case where allegations are made in regard to failure on the part of the accused to keep his promise, in the absence of a culpable intention at the time of making promise being absent, no offence under Section 420 IPC can be said to have been made out. In the instant case, there is no material to indicate that Appellants had any malafide intention against the Respondent which is clearly deductible from the MOU dated 20.08.2009 arrived between the parties."

13. In view of above, this Court finds that rental dispute took place between the parties. It is clear that rental dispute between Page 5 of 9 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 22:32:44 IST 2025 NEUTRAL CITATION R/CR.MA/5634/2019 ORDER DATED: 21/02/2025 undefined the parties has been given color of criminality. FIR if taken as it is, it does not constitute essential ingredients of criminal breach of trust or forgery. There can be no doubt that mere breach of contract is not itself a criminal offence, though it may give rise to the civil liability of damages.

14. In the case of Vesa Holdings Pvt. Ltd. & Anr. Vs. State of Kerala & Ors. [(2015) 8 SCC 293], Hon'ble Apex Court made the following observation:-

"13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case, there is nothing to show that at the very inception there was any inception on behalf of an accused person to cheat which is a condition precedent for an offence u/s 420 IPC. In our view, the complaint does not disclose any criminal offence at all. Criminal proceedings should not be encouraged when it is found to be mala fide or otherwise an abuse of the process of the courts. Superior courts while exercising this power should also strive to serve the ends of justice. In our opinion, in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 Cr.P.C to quash the proceedings."

15. On perusing record it cannot be said that petitioner has committed any offence under the provisions of Atrocities Act. It cannot be said that incident has taken place only for the reason that complainant belongs to Schedule Caste. The allegation with regard to commission of offence punishable under the provisions of Atrocities Act is not attracted.

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16. This Court may gainfully refer to the following observations of this Court in the case of State of Haryana v. Bhajan Lal [1992 Suppl (1) SCC 335], and the law laid down therein has been consistently followed. In para 102, the Hon'ble Apex Court held as under :-

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though 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.

(1) 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.

(3) 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.

NEUTRAL CITATION R/CR.MA/5634/2019 ORDER DATED: 21/02/2025 undefined (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint 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.

(6) 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.

(7) 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."

17. No doubt, that the power under Section 482 of the CrPC is required to be exercised sparingly and with circumspection and that too in the rarest of rare cases. It is equally settled that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. However, the court would be justified in exercising its discretion if the case falls under any of the clauses carved out by this Court in Paragraph 102 in the case of Bhajan Lal (supra).

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18. In view of above, allowing FIR further into trial would be abuse of process of law. The petition deserves consideration.

19. For the foregoing reasons, the petition is allowed. FIR being C.R.No.I-14 of 2019 registered with Padadhari Police Station, Rajkot Rural as well as consequential proceedings initiated in pursuance thereof qua present petitioners is quashed and set aside. Rule is made absolute to the aforesaid extent.

(J. C. DOSHI,J) SATISH Page 9 of 9 Uploaded by SATISH C. VEMULLA(HC00206) on Tue Feb 25 2025 Downloaded on : Tue Feb 25 22:32:44 IST 2025