Vijaybhai Visabhai Der vs State Of Gujarat
2021 Latest Caselaw 18209 Guj

     R/CR.MA/20170/2020                          JUDGMENT DATED: 08/12/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL MISC. APPLICATION NO. 20170 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1      Whether Reporters of Local Papers may be
       allowed to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                          VIJAYBHAI VISABHAI DER
                                  Versus
                             STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 08/12/2021

                            ORAL JUDGMENT

1. RULE. Mr. Pranav Trivedi, learned Additional Public Prosecutor waives service of notice of rule on behalf of respondent No.1- State. Though served, none appears for respondent no.2.

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2. The petitioner before this Court under Section 482 of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.") has prayed for quashing and setting aside the FIR being C.R.No.11193035200761 of 2020 registered with Liliya Police Station, Dist.: Amreli for offfences punishable under sections 384, 486, 465, 506(2) of IPC and under Sections 34, 38, 39, 40, 42(a), 42(d) and 42(e) of Gujarat Money Lenders Act, 2011 and the proceedings initiated pursuant thereto.

3. The impugned FIR, has been lodged by the complainant alleging inter alia that, he was in financial crunch, therefore, had borrowed Rs.8,00,000/- from the accused at 5% interest for eleven months. It is alleged that in spite of this fact the accused, under force, had got one Banskantha executed through him in favour of Gorakhbhai Hadabhai resident of Chandwala. Thereafter, on completion of eleven months, calculating the interest on the total amount of Rs.8,00,000/-, the complainant made a coercive demand of Rs.17,00,000/- and threatened to kill him and his son.

3.1 The complainant states that since he was not having the money, he put his agricultural land on sale and had decided to sell 7 Bigha and 7 Gunthas at the rate of Rs.3,35,000/- per Bigha, thereby decided the total value of land to Rs.24,91,500/-. The complainant states that during the negotiation of the sale of land, witness -

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Bipinbhai had paid earnest amount of Rs.50,000/- and during meeting on 18.08.2020, Rs.2,02,500/- and encumbrance of Rs.4,06,500/- of 'Lilya Seva Sakhari Mandli' was paid and rest of the money of Rs.8,00,000/- was taken by the accused, calculating the interest, directly from Bipinbhai.

3.2 It is alleged that Rs.10,00,000/-, after the sale of land, and thereafter second time Rs.5.75 Lakh; thus total amount of Rs.15,75,000/- had been taken forcibly by the accused from the complainant by threatening to kill him and his son. The complainant alleges that the agreement of sale and thereafter the sale deed was forcibly executed and in spite of not holding the license of money lending, the accused had collected money at exorbitant interest; and under that premise he had filed the FIR.

4. Mr. Ashish M.Dagli, learned advocate for the applicant submitted that, the alleged transaction was about a Banakhat without any possession in the name of one Gorakbhai Hadabhai registered at Sub-Registrar, Liliya. Thereafter, another Banakhat in the name of the same person was executed on 12.05.2020 registered with Sub-Registrar, Mota Liliya.

4.1 Mr. Dagli stated that the allegation is to the effect that such Banakhats were registered under threat of the present petitioner. He stated that it is highly

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improbable, since both the Banakhats were registered documents, even at the relevant time no such complaint has been made by the complainant.

4.2 Mr. Dagli further stated that the complainant himself had decided to sell the land to one Vaishaliben wife of Bipinbhai Chhaganbhai Vora and in presence of Bipinbhai all the money transactions had been undertaken. The complainant had filed a suit being Regular Civil Suit No.20 of 2021 before the Court of Principal Civil Judge, Liliya, against (i) Vaishaliben W/o Bipinbhai Chhaganbhai Vora (ii) Vittalbhai Chhaganbhai Vora and the present petitioner under the Specific Relief Act with prayer for cancellation of the sale deed dated 18.08.2020.

4.3 Mr. Dagli stated that the complainant on 03.12.2021 had executed an agreement of understanding, wherein the parties to agreement are the complainant and Vaishaliben W/o. Bipinbhai Chhaganbhai Vora and in accordance to the understanding arrived at, the said sale deed dated 18.08.2020, had been affirmed and the parties have agreed upon physical possession handed over to the purchaser.

4.4 It is stated by Mr. Dagli that as per the agreement, as the crop was standing on the land, the agreement was also drawn on the same day on 18.08.2020 for harvesting the same and it was decided to

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give the physical possession of the land till 31.01.2021, alleging that the undertaking was not fulfilled, aggrieved by such an action the Regular Civil Suit No.20 of 2021 was filed.

4.5 Mr. Dagli further stated that in presence of both the parties and relatives and elders of the family, settlement dated 03.12.2021 was arrived at and the registered Sale Deed No.290/2019 registered on 18.08.2020, was accepted. The parties have affirmed that the peaceful physical possession was to be handed over to the purchaser and to that regard photographs were taken which has been made part of the agreement. The money for standing crop was also paid by way of cheque.

4.6 Mr. Dagli states that the said agreement affirms the fact that total sale price has been received by the seller and he has no dispute to that regard and has also accepted the fact that the Regular Civil Suit No.20 of 2021 was under false and got-up facts and therefore it has been decided to withdraw the said Suit. He submits that according to the agreement, the complaint made under Land Grabbing Act was to be withdrawn and further it was decided that any complaint before the Liliya Police Station was also to be withdrawn.

4.7 Mr. Dagli submitted that in this premise of the settlement between the parties and when the Suit has been decided to be withdrawn, the allegation against the

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present petitioner under the FIR also would not find its feet, as the Suit was also on false facts, which has been admitted by way of agreement. Mr. Dagli stated that the present petitioner was in fact witness to the agreement executed by the complainant with Gorakhbhai Hadabhai along with one Girishbhai Madhubhai Hindad.

4.8 Mr Dagli submitted that the allegations in the FIR is civil in nature and had been given a criminal colour which get fortified by the agreement which had been executed by the complainant with Vaishaliben W/o of Bipinbhai Chhaganbhai Vora and thus prayed for quashing of the FIR.

5. Mr. Pranav Trivedi, learned APP, relying on the report of the Police Sub-Inspector, Liliya Police Station, District - Amreli stated that, the present petitioner has been arraigned under the offence of Gujarat Money Lenders Act, 2011. The petitioner is in habit of threatening people after lending money on exorbitant interest and by putting innocent people under coercion for atrocious recovery of the money would get agreements executed of their land. Mr. Trivedi stated that petitioner is a head strong person; about 11 offences are registered against him and if the FIR is quashed then, he may continue with the illegal activity.

6. Countering the argument, Mr. Dagli stated that

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the offences which have been registered against the petitioner, apart from the present impugned one, is not connected with any allegation made herein. He stated that three of the cases under prohibition Act; one under section 186 of the IPC, one under M.V. Act, two of the FIR under section 323, were quashed. He stated that the offence under Section 384 and other allied sections have also been quashed by an order of this Court in Criminal Misc. Application No.18817 of 2020 on 11.12.2020.

7. The sections, which have been invoked against the present petitioner under the Gujarat Money Lenders Act 2011, are provided for prohibition of charge for expenses on loans by money-lender. Entry of wrong sum in documents, etc. to be considered as an offence. Prohibition against recovery of loan or interest except in cash, is regarding the penalty for molestation. The molestation is defined therein is about an act of loitering near the house or other place where such person resides or works, or carries on business, or happens to be, or does any act calculated to annoy or intimidate such other person.

8. Considering the allegations made in the complaint and the fact that the complainant has accepted that the Regular Civil Suit No.20 of 2021 are on the false, got-up and forged facts and on that ground the complainant had agreed to withdraw the Suit, wherein the present petitioner is also a party - defendant no.3,

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thus when averment in the Suit against the present petitioner, is stated to be under false facts, on that ground, there is no reason to continue with the FIR and further proceedings would be abuse of process of law as well as process of Court. Further necessary documents were executed for the sale of land wherein the petitioner was merely witness and, the civil dispute has been resolved no criminality can be found in the allegation made in the FIR.

9. In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Apex Court in the said case made the following observations:-

"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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,

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clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:

(a) 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;

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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;

(c) 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;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

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(e) 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;

(f) 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;

(g) 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."

10. Thus, the parameters laid down in the case of State of Haryana V. Bhajan Lal and others (supra) should be appreciated to the facts of the case. Hence, the Court is of the opinion that this is a fit case where the inherent powers of the Court under section 482 of the Cr.P.C. could be exercised in favour of the petitioners for securing the ends of justice, as the continuance of

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proceedings would lead to wastage of precious judicial time.

11. In view of the above observations and discussions, the petition is allowed. The impugned FIR being C.R.No.11193035200761 of 2020 registered with Liliya Police Station, Dist.: Amreli and the proceedings initiated pursuant thereto are quashed and set aside qua the present petitioner. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(GITA GOPI, J.) Pankaj