Bharat Alias Bhaskarbhai ... vs State Of Gujarat
2022 Latest Caselaw 34 Guj

      R/CR.MA/4709/2010                               ORDER DATED: 03/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 4709 of 2010

==========================================================
                  BHARAT ALIAS BHASKARBHAI YAMSANWAR
                                 Versus
                      STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR N. D. NANAVATI, SR, ADVOCATE with MR. MAHARSHI PATEL,
ADVOCATE for HL PATEL ADVOCATES(2034) for the Applicant(s) No. 1
(MR VM PANCHOLI)(533) for the Respondent(s) No. 2
MS M D MEHTA, APP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
==========================================================

     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 03/01/2022
                               ORAL ORDER

1. Heard learned Senior Advocate Mr. N.D. Nanavati with learned Advocate Mr. Maharshi Patel for H.L. Patel Advocates for the petitioner and learned APP Ms. M.D. Mehta for the respondent-State.

2. Though served, none appears for the respondent No.2.

3. By way of this petition, the petitioner inter alia prays for quashment of an FIR bearing C.R. No.I- 39 of 2010 registered with the Kishanvadi Police Station, District Vadodara, for the offences punishable under Sections 364A, 365, 368, 452, 596(2), 506(2), 323, 120b, 467, 468, 471, 419, 212 and 34 of the Indian Penal Code and subsequent proceedings initiated pursuant to the said FIR.

4. Learned Senior Advocate Mr. Nanavati would submit that the complaint had been registered with regard to transaction of sale of land belonging to the original complainant. Learned Senior Advocate would submit that the present petitioner who is working as an Architect at

R/CR.MA/4709/2010 ORDER DATED: 03/01/2022

Mumbai, was interested in purchasing a property and whereas some of the accused of the said complaint, had misrepresented to the petitioner that they were owners of the property in question and under such misrepresentation, an agreement to sell had been prepared. Learned Senior Advocate would submit that under a genuine and reasonable impression that he had transacted with the genuine owner of the land in question, since the signatories to the agreement to sell were not performing their part of the agreement, the petitioner had preferred a Civil Suit and whereas the original owner of the land had appeared before the learned Civil Court and had contested the Civil Suit and it was submitted by the original owner of the land i.e. respondent No.2 herein that he had never entered into any transaction with the petitioner herein. It is at that stage that the petitioner had realized that the other co-accused of the impugned complaint had even cheated the present petitioner. Upon the petitioner being named in the criminal complaint, the petitioner had preferred an application before the learned Sessions Court at Vadodara for grant of anticipatory bail and whereas anticipatory bail had been granted to the present petitioner and later at the relevant point of time the petitioner had preferred an application for grant of regular bail which was rejected and at the time of filing of the present petition, an appeal had been preferred against the said order before this Court. It is at that stage that the present petitioner had preferred the present petition and whereas this Court had been pleased to protect the petitioner, which protection is enureing in favour of the petitioner till date.

4.1 Learned Senior Advocate would draw the attention of this Court to an affidavit filed by the respondent No.2 before this Court and would submit that the original complainant though when the petition had been preferred, and when the affidavit had been filed, had been represented through a learned Advocate, later on, on account of the fact that the learned Advocate had been elevated to the Bench of this Court, the respondent No.2 had not been represented and whereas even after notice being issued

R/CR.MA/4709/2010 ORDER DATED: 03/01/2022

and being served upon the said respondent, he has chosen not to appear. Learned Senior Advocate would submit that by way of the affidavit in question the respondent No.2 has clearly stated that the present petitioner was not part of any of the conspiracy, which had resulted in the respondent No.2 and his son being kidnapped. The respondent No.2 had further submitted that the petitioner after the Civil Suit was filed and after he had come to know that the agreement to sell had been entered into by a fraudulent party, had fairly admitted before the learned Civil Court that the agreement to sell is null and void and that the petitioner had requested the learned Civil Court to pass appropriate orders. In the affidavit-in-reply it is further submitted by the respondent No.2 that he had never entered into any transaction with the present petitioner and whereas the respondent No.2 has also requested this Court to pass appropriate orders looking to the averments made in the affidavit.

4.2 Learned Senior Advocate Mr. Nanavati would further submit that as a matter of fact after the affidavit had been filed, the learned Trial Court where the case had been committed, vide judgment and order dated 14.11.2019 had been pleased to acquit all the other co-accused. Having regard to the same, learned Senior Advocate would submit that this Court may quash the impugned complaint qua the present petitioner.

5. Learned APP Ms. M.D. Mehta while strongly opposing the present petition, could not point out as to why the impugned complaint should not be quashed, more particularly after affidavit-in-reply had been preferred by the original complainant.

6. Having regard to the submissions made by learned Senior Advocate for the petitioner and learned APP for the respondent-State, more particularly considering the averments of the affidavit filed by the original complainant, this Court is of the considered opinion that no fruitful purpose would be served if the criminal complaint is kept pending even qua the

R/CR.MA/4709/2010 ORDER DATED: 03/01/2022

present petitioner. Furthermore, from the affidavit-in-reply it becomes clear that even the original complainant was clearly of the opinion that the present petitioner was also allegedly defrauded by other persons and whereas the present petitioner did not have any role to play insofar as the principal offence of kidnapping or abduction. Under such circumstances, more particular relying upon the decisions of the Hon'ble Apex Court in the cases of Gian Singh Vs. State of Punjab & Anr., reported in (2012) 10 SCC 303, Madan Mohan Abbot Vs. State of Punjab, reported in (2008) 4 SCC 582, Manoj Sharma Vs. State & Ors., reported in 2009 (1) GLH 190 and Narinder Singh & Ors. Vs. State of Punjab & Anr. reported in 2014 (2) Crime 67 (SC), in the considered opinion of this Court, no fruitful purpose would be served, if the complaint is not quashed since the investigation and the consequential trial would be an exercise in futility.

7. For the reasons stated hereinabove, the FIR bearing C.R. No.I- 39 of 2010 registered with the Kishanvadi Police Station, District Vadodara, for the offences punishable under Sections 364A, 365, 368, 452, 596(2), 506(2), 323, 120b, 467, 468, 471, 419, 212 and 34 of the Indian Penal Code and all other proceedings arising out of the aforesaid F.I.R. are hereby quashed and set aside qua the petitioner herein. Rule is made absolute.

Direct service is permitted.

(NIKHIL S. KARIEL,J) BDSONGARA