Gujarat High Court

Patel Kalpeshkumar Prahladbhai vs State Of Gujarat on 21 September, 2021

Bench: B.N. Karia

 R/CR.MA/6786/2015                                CAV JUDGMENT DATED: 21/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC. APPLICATION NO. 6786 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

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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 ?

========================================================== PATEL KALPESHKUMAR PRAHLADBHAI Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:

MR DAIFRAZ HAVEWALLA(3982) for the Applicant(s) No. 1 MR HB CHAMPAVAT FOR MR RJ GOSWAMI(1102) for the Respondent(s)

==========================================================

CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

Date : 21/09/2021

CAV JUDGMENT

1. By preferring this application under Section 482 of Code

of Criminal Procedure, 1973 (hereinafter referred to as "the

Cr.P.C." for short), applicant has requested to quash and set

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aside the FIR being I-C.R. No. 49 of 2015 registered with

Mehsana City, "B" Division Police Station, Dist. Mehsana and

consequential proceedings thereof.

2. Heard learned advocate Mr.Daifraz Havewala for the

applicant; learned advocate Mr. H.B.Champavat appearing for

Mr.R.J.Goswami, learned advocate for the respondent No.2

and learned APP Mr. H.K.Patel for the respondent -State.

3. The brief facts leading to this application are as under:-

3.1 That, on 10.7.2014, the respondent No.2 along with his

family members met the present applicant and requested him

to advance him a loan of Rs.10,00,000/- . On the very same

day, on which, the amount was advanced, the respondent

No.2 had also tendered a cheque to the tune of Rs.10,00,000/-

in favour of Ami International Pvt. Limited Company. The

present applicant is the Director of the said Company. The

said cheque was numbered as 000007 which was drawn from

the Mehsana Urban Cooperative Bank Ltd. The said cheque,

when deposited by the applicant in his bank, it came to be

dishonoured on 6.8.2014 with an endorsement of "insufficient

funds". After some time, as the applicant kept on demanding

the money which was advanced by him to the complainant,

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the complainant gave him two more cheques of Rs.5,00,000/-

each having numbered as 000014 and 000013 dated

15.2.2015, which were drawn from the Mehsana Urban

Cooperative Bank Ltd. The said cheques were deposited by the

applicant in his bank, but those cheques were also

dishonoured. Thereafter, notice was issued by the applicant

through his advocate to the complainant under Section 138 of

Negotiable Instruments Act, 1881 (hereinafter referred to as

"the N.I. Act" for short). As a counterblast of the said notice,

respondent No.2 filed a impugned complaint alleging that the

complainant, on one particular day, was called by the present

applicant to his residence, at that time, applicant told him to

sit in the room, and thereafter, applicant left such room.

When the complainant was in the room, at that time, one lady

came there and pushed him on the bed and she lied down

along side the complainant. That, as the complainant to

understand what happened, the applicant recorded his video

and thereafter, he blackmailed him. That, acceding to the

demands of the accused-applicant, complainant paid

Rs.5,00,000/- on two occasions and still accused/applicant is

demanding further amount of Rs.15,00,000/- from the

complainant and that is how the impugned complaint was

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filed.

4. Heard learned advocates for the respective parties as well

as learned APP for the respondent-State.

5. Learned advocate for the applicant submits that the

impugned complaint is nothing, but an abuse of process of

law. That, from the documents produced on the record of the

case, it becomes apparently clear that the applicant had

advanced an amount to the tune of Rs.10,00,000/- to the

respondent No.2 . That, firstly he issued a cheque amount to

Rs.10,00,000/- but, the same got dishonoured. Thereafter, on

repeated demands of the applicant, the respondent No.2

issued two cheques to the tune of Rs.5,00,000/- each. That,

those cheques were dishonoured on 20.3.2015. That, the

applicant, through his advocate, a legal notice was issued on

21.3.2015 and upon receipt of the notices, complainant

wanted to escape the liability of payment, he has come with

false and baseless impugned complaint. That, even otherwise

if the FIR is closely perused then it becomes clear that the

story narrated in the complaint is absolutely vague and far

from truth. That, even in the earlier point of time, the

respondent No.2 had filed the complaint against the present

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applicant. That, pursuant to the same on 20.3.2015, the

applicant was called to the Police Station and his statement

was recorded. Thereafter, the Investigating Agency had

concluded the preliminary investigation and had not taken

any action. That, as no action was taken, the respondent No.2

again filed such a false and baseless complaint against the

present applicant. That, it is apparently clear that the offence

alleged to have been committed by the applicant is absolutely

false and baseless. It is nothing, but a sheer abuse of process

of law. That, the complainant only wants to pressurize the

present applicant so that he may not go ahead with filing the

complaint under the provisions of Section 138 of N.I.Act for

recovery of the amount due towards him. That, it is

absolutely unbelievable that the complainant was pushed on

the bed and as he could handle himself, in the spur of

moment, the applicant was appeared there and had recorded

his clip because recording of clip would take some time. That,

the impugned complaint is absolutely silent that on which

date, the clip was recorded or who was that lady and who

prevented the complainant from filing the complaint

immediately. Therefore, it was requested by learned advocate

for the applicant to allow this application by quashing and

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setting aside the impugned FIR.

6. Per contra, learned advocate Mr. H.B.Chamapavat

appearing for Mr. R.J.Goswami, learned advocate for the

respondent No.2 has strongly objected the submissions made

by learned advocate for the applicant arguing that applicant

has committed serious offence punishable under Sections

384, and 506(1) of the IPC as well as 67, 67-A of the

Information Technology Act. As the accused called the

complainant at their house and pushing one girl in the bed

with the complainant and getting them slept and they

captured video thereof, they have committed the alleged

offence. That, on the basis of the video captured by the

accused, they were blackmailing the complainant and the

transactions mentioned in the petition are not the legal dues,

but it was the amount of blackmailing made by the accused

persons. That, to save his reputation and/or prestige in the

society, respondent No.2 has accepted the demand of the

accused persons and that is how the transactions mentioned

in the complaint are made between the parties. Hence, it was

requested by learned advocate for the respondent No.2 to

dismiss the present application.

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7. Mr. H.K.Patel, learned advocate appearing for the

respondent -State has supported the arguments advanced by

learned advocate for the respondent No.2 and submitted that

in the facts and circumstances of the case, this Court may not

exercise the powers under Section 482 of the Cr.P.C. for

quashing and setting aside the criminal complaint filed

against the applicant by the respondent no.2. It is further

submitted that after the FIR was lodged, while admitting this

petition, this Court was pleased to grant ad interim relief in

terms of Paragraph No.8(C) of the petition vide order dated

13.04.2021. It is further submitted that thereafter,

considering the conduct of the applicant in not proceeding the

present matter, this Court, vide order dated 22.06.2020, was

pleased to vacate ad interim relief granted in favour of the

applicant. It is further submitted that the allegations made in

the FIR would require to be investigated by the Investigating

Officer and after thorough investigation and recording the

evidence of the witnesses and after collecting the evidence

and even after recording the statement of the independent

witnesses, truth may be found out. It is further submitted that

powers under Section 482 of the Cr.P.C. may not be exercised

by this Court without collecting the evidence and recording

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the statement of the witnesses. It is further submitted that

this Court may not go into the merits of the allegations and/or

enter into the merits of the case in order to examine as to

whether factual contents of the FIR disclose any cognizable

offence or not. It is further submitted that at this stage, this

Court cannot appreciate the evidence nor it can draw its own

inferences from the contents of FIR. Hence, it was requested

by learned APP for the respondent-State to dismiss the

present application.

8. Having gone through the contents of the FIR lodged by

the respondent no.2 against the applicant, arguments

advanced by learned advocates for the respective parties as

well as learned APP for the respondent-State and documents

placed on record, it appears that the complainant is the son-

in-law of the maternal uncle of the present applicant. From

the contents of the complainant, it transpires that on one

particular day, the complainant was called by the applicant at

his residence. It also appears that when the complainant came

to his residence, the applicant told him to sit in the room and

the present applicant left out the room. The complainant,

while he was in the room a lady came there and pushed him

on the bed and she lied down alongside the complainant. It is

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alleged in the complaint that before the complainant could

gather himself to understand what happened, the applicant

recorded his video and thereafter, he blackmailed him. It is

further alleged in the complaint acceding to the demands of

the accused-applicant, the complainant paid Rs.5,00,000/- on

two occasions and still the applicant-accused was demanding

further an amount of Rs.15,00,000/- from him, and therefore,

he contacted his friend and resultantly, he filed the complaint

for the offence punishable under Sections 384 and 506(2) of

the Indian Penal Code and Sections 67 and 67A of the

Information Technology Act, 2000 registered with "B" Division

Police Station, Mehsana being I-C.R.No.49 of 2015. It is

further alleged in the complaint that he had advanced an

amount to the tune of Rs.10,00,000/- to the respondent no.2

and he had also tendered a cheque to the tune of

Rs.10,00,000/- in favour of Ami International Private Limited

Company, wherein the applicant is a Director of the said

company and the said Cheque No.000007 drawn from

Mehsana Urban Cooperative Bank Limited was dishonoured

on 06.08.2014 for insufficient funds. The two more cheques of

Rs.5,00,000/- each were given by the complainant to the

applicant which were numbered as 000014 dated 15.01.2015

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and 000013 dated 15.02.2015 drawn from Mehsana Urban

Cooperative Bank Limited could not honour by the bank in

favour of the present applicant. It is an admitted fact that after

issuing legal notice by the applicant, through his advocate on

21.08.2015, under Section 138 of the N. I. Act, demanding the

amount due, no separate complaint was filed by the applicant

against the respondent no.2 under Section 138 of the N.I. Act.

It can never be said that upon receiving the said notice, as a

counter-blast, the respondent no.2 has filed the impugned

complaint with "B" Division Police Station, Mehsana making

the allegation as referred above. The entire complaint lodged

by the respondent no.2 is completely based on the factual

aspects. In the case of Smt. Phool Kumari Vs. State of U.P.

and another in Case No.2242 of 2020, decided on

13.10.2020 passed by the Allahabad High Court, the

Allahabad High Court has observed in Paragraph-20 as under:

"20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State normally refrain from giving a prima facie

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decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material........."

9. The factual aspects of demanding money which was

allegedly advanced by the present applicant to the

complainant and two cheques were given of Rs.5,00,000/-

each to the applicant and they were dishonoured by the bank

authority and therefore, legal notice was issued by the present

applicant demanding money, receiving the said notice by the

complainant, as a counter-blast, he has filed a bogus

complaint, can be examined only after adducing evidence in

the trial. The factual aspects cannot be evaluated or

appreciated during the proceedings under Section 482 of the

Cr.P.C. The Hon'ble Supreme Court, in the case of Kaptan

Singh Vs. the State of Uttar Pradesh and others in

Criminal Appeal No.787 of 2021, decided on 13.08.2021,

has observed in Paragraph No.9.1 as under:

"9.1 ........the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case

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as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by the Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to examine as to whether factual contents of FIR disclose any cognizance offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed that it is more so, when the material relied on is disputed."

10. In view the above cited reasons and ratio laid down by

the Hon'ble Apex Court, the impugned complaint filed by the

respondent no.2 against the present applicant for the offence

punishable under Sections 384, and 506(1) of the IPC as well

as 67, 67-A of the Information Technology Act cannot be

quashed or set aside in exercise of powers under Section 482

of the Cr.P.C. Now the investigation is to be completed and

proceeded further in accordance with law and on its own

merits on the basis of the evidence to be led and without

influence by any of the observations made by this Court

hereinabove.

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