Mukeshbhai Ambalal Soni ... vs State Of Gujarat
2021 Latest Caselaw 12310 Guj

     R/CR.MA/15249/2015                             ORDER DATED: 25/08/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC. APPLICATION NO. 15249 of 2015
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            MUKESHBHAI AMBALAL SONI (KUKADIYA) & 2 other(s)
                              Versus
                   STATE OF GUJARAT & 1 other(s)
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Appearance:
MR MB PARIKH(576) for the Applicant(s) No. 1,2,3
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MR PRASHANT MANKAD(2189) for the Respondent(s) No. 2
MR. H.K. PATEL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                             Date : 25/08/2021
                              ORAL ORDER

Leave to amend in name of Police Station.

1. This application under Section 482 of the Code of Criminal Procedure is filed by the applicants for quashing and setting aside the impugned FIR dated 03.06.2015 registered with Ghogha Road Police Station, Bhavnagar being I-C.R. No. 82 of 2015 for the offence punishable under Sections 406, 420, 506(2), 114 of the IPC and under Sections 3(1)(10) of the Atrocity Act with following prayers:

"(A) Your Lordships be please to call for the papers of investigation of the FIR registered with B-Division Police Station of Bhavnagar vide I-C.R. No. 82/2015;

(B) Your Lordships be please to quash and set aside the impugned FIR at annexure a, dated 3/6/2015 registered with B-Division Police Station, Bhavnagar vide - I CR No. 82/2015 for the offences punishable under Section 406, 420, 506(2), 114 of the IPC and also for the offence punishable under Section 3(1)(10) of Atrocity Act and further Your Lordships be please to quashed and set aside the further proceedings if any taken place by the prosecution;

(C) Pending admission, hearing and till final disposal of this petition, Your Lordships be please to grant stay against the further proceeding of the impugned FIR at annexure a, by

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directing the investigating officer not to arrest the petitioner no.1"

2. The brief facts of the case on hand are as under:

2.1 The complainant has alleged in his compliant that the complainant is the owner of two loading rickshaws and plying the same in city Bhavnagar. It is alleged that applicant no. 1 and applicant no. 2 are partners and running a business in the name and style as Rahe Enterprises. It is further alleged that on or before two years ago, they have contacted the complainant and hired his loading rickshaw on rent for the purpose of transporting machinery from one place to other. It is also alleged that initially they have made cash payment on time, thereafter since 05.07.2013, they have opened an account and assured that they will pay regular payment, upon which the complainant was agreed, delivered the goods as per their order. Thereafter, in the month of October-2014, the business run in the name of Rahe Enterprises closed down. At that time an amount of Rs.97,200/- was due and payable by the applicants no. 1 and 2.

2.2 It is alleged that therefore time and again the complainant demanded his due from the applicant no. 2, however he assured that the amount would be paid within a period of one week. Therefore after a period of one week, when he had approached the applicant no. 2 at that time he was informed that applicant no. 1 had left the town and therefore don't come again. Further, the complainant had also tried to contact the applicant no.1, however, he could not meet. It is further alleged in the compliant that lastly on 23.12.2014 at about 10-00 p.m. when he went to the house of applicant no. 2 at that time applicant no. 3 had told him that they are not the partners and therefore, do not come to their home again otherwise he would be killed and they have also insulted as he belongs to Scheduled Caste. Therefore the complaint has been filed

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as per contents of this application only with a view to extract money from the applicants at any cost by involving them in the heinous crime which they have not committed at all false and frivolous compliant is filed. That even looking to the complaint, respondent No. 2 was threatened on 23.12.2014 but till 03.06.2015, he was remained silent. Moreover, the complainant is absolutely silent about the date and time on which he was insulted regarding his caste. In view of this, the complaint is nothing but a cook and bull story with a view to extract money by falsely involving the applicants in this serious offence. Therefore, the impugned complaint is required to be struck down by this Cout by exercising the powers under Section 482 of the Code of Criminal Procedure, according to the applicants.

3. Heard learned advocates for the respective parties and learned APP Mr. H.K. Patel for the respondent State.

4. Learned advocate for the applicants submits that even bare reading of FIR, no offences have been committed by the applicants and the same has been filed only with a view to harass the applicants in such heinous crime. He further submitted that even assumes for the time being and take the FIR on its face value then also no offences have been committed by the applicants as alleged by the respondent No. 2- original complainant. He also submits that the applicant no. 1 is a businessman, applicant no. 2 since 1988 serving as Officer- Auditor in the office of Saurastra Gramin Bank and applicant No. 3 is working as an Insurance Agent in Bhavnagar City. Learned advocate for the applicants also submits that all of them have nothing to do with the business of Machineary of making Agarbatti (Fragrance Stick) runs in the name and style as Rahe Enterprise, at Bhavnagar. Moreover, they are neither partner nor engaged with the said business. He further submits that even looking to the allegations made by the complainant regarding

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commission of the offence punishable under Section 3(1)(10) of the Atrocity Act, he has nowhere stated the date and time on which he was insulted about his caste. If, without prejudice to the rights and contentions of the applicants take that it was happened on 23.12.2014 at about 10-00 p.m. at the house of the applicant No. 2 and 3 even then no offence is made out by the applicants No. 2 and 3 as the same was not uttered in the public place where other can hear. Even as per the complaint, the complainant went to the residential premises and the same is not the public place at all. In view of the same, the allegation made by the respondent No. 2 is prima facie not sustainable and maintainable in the eyes of law, and therefore, on this ground alone the complaint is required to be quashed and set aside. He also submits that looking to the law laid down by this Hon'ble Court as well as by the Hon'ble Supreme Court of India in catena of decisions held that civil liability cannot be converted into criminal liability, therefore, it is nothing but the abuse of process of the Court. In view of the same also the impugned complaint is required to be quashed and set aside.

5. Learned advocate for the respondent No. 2 has strongly objected the submissions made by the learned advocate for the applicants and submitted that the present applicants are involved in the serious offence as alleged in the FIR and looking to the gravity of the offence, the prayer made by the applicants cannot be granted. That it was clear case of cheating and criminal breach of trust made by the applicants. It is further urged that this would be at premature stage to accept the prayer of the applicants to quash the complaint. That prima-facie case is made out against the present applicants as the sufficient evidence is available with the Investigating Agency. That no powers may be exercised in favour of the applicants under Section 482 of the Cr.PC. Hence, it was requested by the learned advocate for the respondent No. 2 to dismiss the present application.

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6. Learned APP for the State has supported the arguments advanced by the learned advocate for the respondent No. 2 and submitted that the conduct of the applicants needs to be considered by this Court at this stage. That intention to commit cheating is prima facie established by making necessary averments in his complaint by the complainant. That without trial no prayer can be accepted by exercising the powers under Section 482 of the Cr.PC by this Court, as the Investigating Agency after collecting material evidence against the applicants has filed charge sheet. Hence, it was requested by him to dismiss the application.

7. Having heard learned advocate for the applicants as well as learned advocate for the respondent No. 2 and learned APP for the respondent -State, it appears that in the present case, the prayer has been sought to quash the complaint and criminal proceedings initiated. On the basis of the complaint, this Court would like to refer the definition of Section 415 of the IPC, which defines cheating as under:

"Section 415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not 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, is said to "cheat".

8. In the definition there are two sets forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently and dishonestly to delivery any property to any person. The second class act set forth in the second is the doing or omitting to do anything which person deceived would not do or omit to do, if he were not so deceived. In determining the question it has to be kept in the mind that the

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definition between mere breach of contract and the offence of cheating is fine one. It further appears that it depends upon the intention of the accused at the time to inducement, which judge by his subsequent conduct but for this subsequent conduct is not a sole test. It appears from the record that the complaint has been filed on 03.06.2015.

9. Prima-facie, the dispute between the parties herein appears to be civil nature. Non payment itself does not constitute an offence of cheating or criminal breach of trust. No offence with regard to the definition of criminal breach of trust as contained in Section 405 of IPC read prima-facie appears to have been committed.

10. The complainant in his complaint has made no ingredients of the aforementioned provision nor any statement in that behalf. If we consider the facts of the case in context of section 415 of the IPC to consider offence of cheating, the accused ought to have deceived the complainant and fraudulently or dishonestly induce him to deliver any property to the applicants.

"Inherent power of the High Court under Section 482 Cr.PC can be used: (I) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."

11. In case of Asmathunnisha vs. State of Andhra Pradesh, reported in (2011) 11 Supreme Court Cases 259 wherein, Para 8, it is held as under:

"In this connection, learned counsel for the appellant has placed reliance on a judgment of the Kerala High Court in E. Krishnan Nayanar v. Dr. M.A. Kuttappan & Others 1997 Crl.

L.J. 2036. The relevant paragraphs of this judgment are paras

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12, 13 and 18. The said paragraphs read as under:

"12. A reading of Section 3 shows that two kinds of insults against the member of Scheduled Castes or Scheduled Tribes are made punishable - one as defined under sub- section (ii) and the other as defined under sub-section (x) of the said section. A combined reading of the two sub-sections shows that under section (ii) insult can be caused to a member of the Scheduled Castes or Scheduled Tribes by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood, and to cause such insult, the dumping of excreta etc. need not necessarily be done in the presence of the person insulted and whereas under sub-section (x) insult can be caused to the person insulted only if he is present in view of the expression "in any place within public view". The words "within public view", in my opinion, are referable only to the person insulted and not to the person who insulted him as the said expression is conspicuously absent in sub-section (ii) of Section 3 of Act 3/1989. By avoiding to use the expression "within public view" in sub-section (ii), the Legislature, I feel, has created two different kinds of offences an insult caused to a member of the Scheduled Castes or Scheduled Tribes, even in his absence, by dumping excreta etc. in his premises or neighbourhood and an insult by words caused to a member of the Scheduled Castes or Scheduled Tribes "within public view" which means at the time of the alleged insult the person insulted must be present as the expression "within public view" indicates or otherwise the Legislature would have avoided the use of the said expression which it avoided in sub-section (ii) or would have used the expression "in any public place".

13. Insult contemplated under sub-section (ii) is different from the insult contemplated under sub- section (x) as in the former a member of the Scheduled Castes or Scheduled Tribes gets insulted by the physical act and whereas is the latter he gets insulted in public view by the words uttered by the wrongdoer for which he must be present at the place.

18. As stated by me earlier the words used in sub-

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section (x) are not "in public place", but "within public view" which means the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted. In my view, the entire allegations contained in the complaint even if taken to be true do not make out any offence against the petitioner".

12. From the provisions it clearly appears that the words used are "in any place but within public view which means that public must view the persons being insulted for which he must be present, otherwise no offence of the allegations under the said section gets attracted if the person is not present. In the present case alleged offence under Section 3(1)(10) of the Atrocity Act was committed in the residential premises. No members of public were present. To attract the provision, public must view the person being insulted for which he must be present. In my view the entire allegations contained in the complaint even if it is seem to be true do not made out any offence against the applicants.

13. In case of State of Karnataka Vs. L. Miniswamy reported in (1977) 2 SCC 699, it is observed as under:

"That the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice requires that the proceedings ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the Legislature. This case has been followed in a large number of subsequent

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cases of this court and other courts."

14. This Court is of the view that allegations contained in the complaint, even if are taken as it's face value, it does not disclose any offence as alleged and act of non payment itself does not constitute offence of cheating and criminal breach of trust which is admittedly a civil dispute. For the reasons aforementioned, the complaint being I-C.R. No. 82 of 2015 registered with Ghogha Road Police Station, Bhavnagar, for the offence punishable under Sections 406, 420, 506(2), 114 of the IPC and under Sections 3(1)(10) of the Atrocities Act and subsequent proceedings thereof qua the present applicants deserves to be quashe and are hereby quashed and set aside.

15. This application stands allowed and accordingly disposed of. Rule is made absolute to the aforesaid extent.

(B.N. KARIA, J) prk