Becharbhai Sendhidas Patel vs State Of Gujarat
2021 Latest Caselaw 13188 Guj

      R/SCR.A/8975/2018                              ORDER DATED: 02/09/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
       R/SPECIAL CRIMINAL APPLICATION NO. 8975 of 2018
                            With
CRIMINAL MISC.APPLICATION (FIXING DATE OF EARLY HEARING) NO.
                          1 of 2020
      In R/SPECIAL CRIMINAL APPLICATION NO. 8975 of 2018
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                          BECHARBHAI SENDHIDAS PATEL
                                    Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
MR. ARCHIT P JANI(7304) for the Applicant(s) No. 1
MR. H. K. PATEL, APP for the Respondent(s) No. 1
==========================================================
 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 02/09/2021
                                 ORAL ORDER

ORDER IN SPECIAL CRIMINAL APPLICATION NO. 8975 of 2018

1. By way of present petition, the petitioner, who is the original

complainant, has challenged the order dated 06.07.2018 passed by

learned 5th Additional Sessions Judge, Mehsana at Visnagar in

Criminal Revision Application No.32 of 2016 as well as order dated

23.07.2016 passed by learned Judicial Magistrate First Class, Unjha

in Inquiry No.1 of 2015.

2. Short facts filing to the present petition may be summarized

as under:

2.1 As per the averments made in the complaint filed by the

petitioner, Mafatlal Sendhidas and Mangalbhai Sendhidas, are

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resident of Makhtupur is the cousin brother of the petitioner and

they are carrying out their business of trading of tobacco. That in

1989, Mafatlal Patel proposed the petitioner to purchase the

agricultural land owned by him at Santej, Taluka­Kalol. The

petitioner paid certain amount as described in the complaint to his

cousin brother namely Mafatlal Sendhidas from 1989 to 2007.

2.2 Thereafter, the petitioner requested his brother to transfer the

land in his favour. In spite of repeated request made by the

petitioner, no transaction was made by him in favour of the

petitioner, and therefore, he filed a complaint before the learned

Judicial Magistrate First Class, Unjha on 02.02.2015. The learned

Judicial Magistrate First Class was pleased to pass an order to

conduct the inquiry by itself under Section 202 of the Code of

Criminal Procedure, 1973. The petitioner filed his affidavit in

support of his complaint on 13.07.2015 alongwith the documents

(Mark 5/1 to 5/7). He also produced affidavit of the witnesses

alongwith statement of the partnership firm maintained by the firm

showing entries of withdrawal of the amount for the purpose of

payment to the proposed accused for purchasing the land. He also

produced various affidavits of the witnesses namely Mr. Natubhai

Ramjibhai Patel and Mr. Babubhai Rugnathbhai Patel supporting

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the contents of the petitioner that he had paid the amount to the

proposed accused. Other affidavits of Mr. Vasantbhai Kalyanbhai

Parmar and Karsansingh Govindbhai Thakor were also produced by

the petitioner pointing out the fact that they were aware of the

transaction and how the petitioner was duped by his brother.

2.3 The learned Magistrate vide order dated 23.07.2016 was

pleased to dismiss the complaint filed by the petitioner under

section 203 of the Criminal Procedure Code. The petitioner

approached the Sessions Court against such order of dismissal of

his complaint by filing Criminal Revision Application No.32 of

2016. Learned 5th Additional Sessions Judge, Mehsana at Visnagar,

after hearing the parties, was pleased to dismiss the Criminal

Revision Application No.32 of 2016 vide order dated 06.07.2018.

The petitioner, being aggrieved with the impunged order passed by

the learned JMFC, Unjha in Inquiry No. 1 of 2015 as well as order

passed in Criminal Revision Application No.32 of 2016 dated

06.07.2018, has preferred this petition under Articles 14, 19, 21

and 226 of the Constitution of India as well as under the provisions

of Code of Criminal Procedure, 1973.

3. Heard learned advocate Mr. Archit P. Jani appearing for the

petitioner and learned APP appearing for the respondent­State.

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4. It is submitted by learned advocate appearing for the

petitioner that both the orders passed by the learned JMFC, Unjha

in Inquiry Case No.1/2015 dated 23.07.2016 as well as order dated

06.07.2018 passed by learned 5th Additional Sessions Judge,

Mehsana at Visnagar in Criminal Revision Application No.32 of

2016 are illegal, erroneous and contrary to the well settled legal

proposition. It was further submitted that there were sufficient

grounds in the complaint to warrant full fledged trial under Section

202 of Code of Criminal Procedure and Courts below ought to have

issued process and culminated the inquiry into the criminal case. It

is further submitted that prima facie case was made out by the

complainant against the proposed accused disclosing commission of

cognizable offence. It is further submitted that order passed by

learned JMFC, Unjha is in the nature of acquitting the proposed

accused and erroneously gone into the civil aspect holding that

there could not have been transaction since there was no

agreement to sell. It is further submitted that the complaint filed by

the petitioner was dismissed without any inquiry or issuing process

to the proposed accused. That the issue raised by the complainant

was required to be tried and decided by the learned JMFC. It is

further submitted that at the stage of inquiry, court has to go into

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the aspect whether the prima facie case is made out and there are

sufficient grounds to summon the accused. It is further submitted

that court cannot enter into evidence or come to the conclusion by

dismissing the complaint threshold. It is further submitted that

same error was committed by the learned Sessions Court failing to

exercise revisional jurisdiction. It is further submitted that

petitioner was duped by his brother, upon which, the blind trust

was put, and therefore, there was no agreement executed and

delay was caused. That learned Judicial Magistrate First Class has

dismissed the complaint of the petitioner without appreciating the

contents of the complaint and documents. That impugned orders

passed by the Courts below are contrary to the well settled legal

proposition, and therefore, require to be quashed and set aside.

Hence, it was requested by learned advocate appearing for the

petitioner to allow this petition by quashing and setting aside the

order dated 06.07.2018 passed by learned 5 th Additional Sessions

Judge, Mehsana at Visnagar in Criminal Revision Application No.32

of 2016 and the order dated 23.07.2016 passed by learned Judicial

Magistrate First Class, Unjha in Inquiry No.1 of 2015. In support of

his arguments, learned advocate appearing for the petitioner has

placed his reliance upon the judgments reported in AIR 1972 SC

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Page 1607, AIR 1962 SC Page 876 and AIR 2004 SC Page 1734.

5. Per contra, learned APP appearing for the respondent­State in

his arguments has supported the findings arrived at by learned

Judicial Magistrate First Class, Unjha in Inquiry No.1 of 2015 as

well as the order 06.07.2018 passed by learned 5 th Additional

Sessions Judge, Mehsana at Visnagar in Criminal Revision

Application No.32 of 2016. It is submitted that inquiry under

Section 202 of Cr.P.C. is limited to finding out the truth or

otherwise of the complaint in order to determine whether process

should be issued or not. It is further submitted that under Section

203 of Cr.P.C., learned Magistrate has to form his opinion from the

statement of the complainant and his witnesses. That learned

Magistrate has rightly applied his mind to the materials and form

his judgment concluding that there is no sufficient grounds for

proceeding. It is further submitted that learned Judicial Magistrate

First Class, Unjha has not misdirected himself as to the scope of the

inquiry made under Section 202 and has judicially applied his mind

to the material before him, therefore it cannot be said that he has

acted erroneously. That complaint itself is not maintainable and

order of dismissal passed by learned Judicial Magistrate First Class,

Unjha and confirmed by learned Sessions Court, Mehsana at

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Visnagar in Criminal Revision Application No.32 of 2016 can never

said to be illegal or improper. Hence, it was requested by learned

APP to dismiss the petition.

6. Having gone through the submissions made by learned

advocate for the petitioner and learned APP for the respondent­

State, it appears from the contents of the complaint produced on

record that the first transaction was carried out as alleged by the

petitioner before 24 years i.e. 1989 before lodging the complaint.

Thereafter another transaction was carried out in the same year

paying Rs. 48,515/­ to the proposed accused. Thereafter in 2004,

third transaction was carried out for purchasing the land of 30

Bigha in Virochar Nagar of Viramgam Highway, Taluka Sanand and

the petitioner paid Rs.10,06,660/­, the description of the

transaction carried out between the petitioner and the proposed

accused is mentioned at Page No.3 of the complaint. Last

transaction was allegedly carried out on 13.07.2007 paying Rs.

6,660/­ to the accused person from the account of three brothers

of the complainant. It is said in the complaint that putting trust on

the proposed accused, this amount was paid, but thereafter

frequent requests were made by the petitioner, the accused refused

to transfer the land in favour of the petitioner. The learned

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Magistrate has considered the relevant provisions of Sections 403,

406 and 420 of the Indian Penal Code as well as judgment of the

High Court of Orissa, High Court of Madras relied upon by the

complainant. It is observed in the order that payment was made

from 1989, but no agreement to sell was executed. Before 24 years

from lodging of the complainant, an amount was paid in the year of

1989. It was not verified from the copy of the lodgment, produced

on record that this amount was paid to the accused person for the

purpose of purchasing the land. The learned Judge opined that the

intention of the accused person was not established from the

beginning to cheat the complainant or adducing him. As there were

no sufficient grounds as per the opinion of the learned Judge to

proceed in the matter, the criminal complaint filed by the petitioner

was dismissed under Section 203 of the Criminal Procedure Code

vide order dated 23.07.2016.

7. The Hon'ble Apex Court in a judgment reported in AIR 1962

Supreme Court Page 876 in Paragraph No.24, has observed as

under:

"In this case, two exceptional circumstances were adverted to before us. One is that the learned Chief Presidency Magistrate who dealt with the first complaint completely misdirected himself as to the true scope and effect of ss. 203 and 204 of the Code

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of Criminal Procedure and this, it is contended, resulted in a manifest miscarriage of justice when he dismissed the first complaint under s. 203 of the Code of Criminal Procedure. I am of the view that there is substance in this contention. Section 203 of the Code of Criminal Procedure states that the Magistrate may dismiss the complaint, if, after considering the statement on oath, if any, of the complainant and the witnesses and the result of the investigation or enquiry, if any, under s. 202, there is in his judgment no sufficient ground for proceeding. Section 204 lays down that if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding, he shall issue a summon or a warrant, as the case may require. What is the true scope and effect of the expression "sufficient ground for proceeding" occurring in the aforesaid two sections ? This was considered by this Court in Vadilal Panchal v. Dattatraya Dulaji Ghadigaonker, 1961­(1) SCR (1) : (AIR 1960 SC 1113). With reference to ss. 200, 202 and 203 of the Code of Criminal Procedure it was there observed:

"The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not any that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can be legally called upon to answer the accusation made against him only when a process has issued and he is put on trial."

It was further observed that if the Magistrate had not misdirected himself as to the scope of an enquiry under s. 202 and had applied his mind judicially to the materials before him, it would be erroneous in law to hold that a plea based on an exception could

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not be accepted by in arriving at his judgment. In another decisions of this Court Ramgopal Genapatria Ruia v. State of Bombay (2) the expression "sufficient grounds" occurring in ss. 209, 210 and 213 of the Code of Criminal Procedure was considered and it was held that the expression did not mean sufficient grounds for the purpose of conviction but meant such evidence as would be sufficient to put the accused upon trial by the jury dealing with the first complaint the learned Chief Presidency Magistrate proceeded to consider not whether there was sufficient ground for proceeding within the meaning of ss. 203 and 204 of the Code of Criminal Procedure but whether there was sufficient evidence for conviction of the accused persons. In my opinion, this approach was completely wrong and resulted in a manifest miscarriage of justice. The learned Chief President Magistrate said:

8. The Hon'ble Apex Court in the judgment reported in AIR

1972 Supreme Court Page 1607 in Paragraph No.7, has observed

as under:

"It has to be remembered that an order of dismissal of a complaint under Section 203 Criminal Procedure Code has to be, made on judicially sound grounds. It can only be made where the reasons given disclose that the proceedings cannot terminate successfully in a conviction. It is true that the Magistrate is not debarred, at this stage, from going into the merits of the evidence produced by the complainant. But, the object of such consideration of the merits of the case, at this stage, could only be to determine whether there are sufficient grounds for proceeding further or not. Ile mere existence of some grounds which would 'be material in deciding whether the accused should be convicted or acquitted does not generally indicate that the case must necessarily fail. On the other hand, such grounds. may indicate the need for proceeding further in order

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to discover the truth after a full and proper investigation. If, however, a bare perusal of a complaint or the evidence led in support of it show that essential ingredients of the offences alleged are absent or that the dispute is only of a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further, the complaint could be properly dismissed under Section 203 Criminal Procedure Code."

9. The Hon'ble Apex Court in the reported in AIR 2004

Supreme Court Page 1734 in Paragraph No.10 has observed as

under:

"The contention urged is that though the trial court was directed to consider the entire material on record including the final report before deciding whether the process should be issued against the appellant or not, yet entire material was not considered. From perusal of order passed by the Magistrate it cannot be said that the entire material was not taken into consideration. The order passed by the Magistrate taking cognizance is a well written order. The order not only refers to the statements recorded by the police during investigation which led to the filing of final report by the police and the statements of witnesses recorded by the Magistrate under Sections 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of the police, a magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be

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satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons."

10. From the impugned order passed by learned Judicial

Magistrate First Class, Unjha in Inquiry No.1 of 2015, it appears

that the learned Judge has rightly observed that whether there are

sufficient grounds for proceeding further or not.

11. Considering the allegations made in the complaint or the

evidence led in support of the complainant, it shows that essential

ingredients of the offence alleged are absent. Further from the copy

of the complaint produced by the complainant/petitioner, it is not

clarified that the person to whom, the amount was paid by the

complainant was his brother, on account of purchasing the land

from proposed accused. There was such pattern absurdities in the

evidence produced by the complainant, and therefore, it would be

waste of time to proceed further.

12. If we consider the Section 468 of the Criminal Procedure

Code, object of including Section 468 was to put a bar of limitation

on prosecution and to prevent the parties from filing the cases after

a long time as it was brought proper thereafter a long lapse of time,

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launching of prosecution may be vexatious because by that time

evidence may disappear.

13. From the record, learned Judicial Magistrate First Class,

Unjha has rightly applied his mind to the materials and form his

judgment considering the fact that whether prima facie case is

made out or sufficient grounds are there for proceedings. Learned

Sessions Judge has rightly passed the order in Criminal Revision

Application No. 32 of 2016 vide order dated 06.07.2018 confirming

the order dated 23.07.2016 passed by learned Judicial Magistrate

First Class in Inquiry No. 1 of 2015. No error or illegality is

committed by the Courts below, hence submissions made by the

petitioner to quash the impugned orders, under the circumstances

cannot be allowed.

14. For the above reasons, present petition is hereby dismissed.

The order dated 23.07.2016 passed by leaned Judicial Magistrate

First Class, Unjha in Inquiry No. 1 of 2015 as well as order dated

06.07.2018 passed by learned 5th Additional Sessions Judge,

Mehsana at Visnagar in Criminal Revision Application No.32 of

2016 are hereby confirmed. Rule is discharged.

(B.N. KARIA, J)

R/SCR.A/8975/2018 ORDER DATED: 02/09/2021

ORDER IN CRIMINAL MISC.APPLICATION NO. 1 of 2020

As the main matter is disposed of after hearing the

parties, present application does not survive and accordingly

stands disposed of.

(B.N. KARIA, J) SUYASH