Kiran L Joshi vs State Of Gujarat
2022 Latest Caselaw 4532 Guj

     R/CR.MA/4208/2014                                JUDGMENT DATED: 02/05/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 4208 of 2014


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1      Whether Reporters of Local Papers may be allowed              No
       to see the judgment ?

2      To be referred to the Reporter or not ?                       No

3      Whether their Lordships wish to see the fair copy             No
       of the judgment ?

4      Whether this case involves a substantial question             No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                                KIRAN L JOSHI
                                    Versus
                         STATE OF GUJARAT & 1 other(s)
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Appearance:
MR BHARGAV HASURKAR(5640) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MS M D MEHTA, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                               Date : 02/05/2022

                               ORAL JUDGMENT

1. Heard learned Advocate Mr. Bhargav Hasurkar for the applicant and learned APP Ms. M.D. Mehta for the respondent-State.

2. By way of this application the applicant prays for quashing of the FIR being C.R. No.I-68 of 2014 registered with Gandhidham 'A' Division Police Station, District East Kutch, on 13.03.2014, for offences punishable under

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Sections 420, 406, 465, 467, 468, 471 and 114 of the Indian Penal Code and Sections 44, 45, 85(1)(Chh) of the Gujarat Value Added Tax Act, 2003.

3. Learned Advocate Mr. Hasurkar for the applicant would submit that the said FIR has been filed by the respondent No.2 herein who was officer of Sales Tax Department and whereas the said FIR had been lodged in connection with the principal accused, having submitted false and forged documents to the Bank concerned, on account of which the attachment, under Section 45(1) of the Gujarat Value Added Tax Act, 2003, with regard to the Bank Account of the main accused, had been de-freezed by the present applicant. Learned Advocate Mr. Hasurkar would submit that the applicant at the relevant point of time was working as Branch Manager, Bank of Maharashtra, Gandhidham Branch, and whereas a copy of an order dated 19.10.2013 had been served upon him, which was purportedly signed by the Assistant Commissioner of Commercial Tax (Vigilance) Ahmedabad, Gujarat State. Learned Advocate would submit that the said communication/order inter alia informs the Bank that the dealer concerned one M/s Somnath International, had cleared their Assessment and Dues, and therefore the Bank was requested to release the attachment with regard to Bank Account of the said M/s Somnath International. Learned Advocate would submit that since the applicant as the Bank Manager, had no reason to doubt the said communication which also contain the Seal of Sales Tax Department, Ahmedabad, therefore, the applicant had released the attachment and whereas it appears that upon the attachment being released by the Bank on 26.10.2013, and whereas the Firm concerned had transferred the amount of Rs. 16,91,000/- to another Account and whereas balance of an amount of Rs. 5,025/- was remaining. It appears that upon such amount being transferred, the Sales Tax Department, had inquired into this aspect and whereas the Department, had thereafter filed the impugned FIR. Learned Advocate Mr. Hasurkar would submit that while initially, the applicant after having approached this Court had been protected to the extent of no coercive steps being taken against the applicant, later on, vide

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an order dated 09.04.2019, interim relief in terms of staying of investigation had been granted in his favour, which interim relief, according to the learned Advocate Mr. Hasurkar, is continuing till date. Learned Advocate would further submit that while insofar as the present applicant is concerned, the investigation has not proceeded and whereas pendency of the FIR has gravely prejudiced the present applicant since inspite of retiring, the Bank has not released some of the retiral dues of the present applicant. Learned Advocate would further submit that as such, there is nothing in the FIR which would show that the present applicant, was acting in connivance with the other accused. Learned Advocate would reiterate that as such, the applicant was in receipt of the letter/communication, copy of which is also annexed with the application, and according to the learned Advocate, a prima facie perusal of the said letter, would show that the said letter carries all the implications of being an official letter including sign and seal of the Assessment Commissioner of Commercial Tax (Vigilance) Ahmedabad and seal of the Sales Tax Department, Ahmedabad, and the said letter being upon the Letterhead of the Gujarat Commercial Tax Department. Learned Advocate would submit that as a Bank Manager the present applicant had no reason to disbelieve or question the said letter and whereas, the applicant had acted strictly in accordance with law and whereas there being no material to link the present applicant to the crime in question. Thus submitting learned Advocate Mr. Hasurkar would request that the impugned FIR may be quashed by this Court.

4. This application is vehemently objected to by the learned APP Ms. M.D. Mehta for the respondent-State, who would submit that a prima face case is made out, more particularly since there is a specific allegation that the present applicant had caused loss to the Department by releasing the attachment. To a specific query by this Court as to whether the FIR or even subsequent investigation with regard to other accused, had revealed any overt act being played by the present applicant or there being any material to show connivance of the applicant in the offence in question, the learned

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APP has fairly, after taking this Court through the investigation papers, submitted that there is nothing on record to show that the applicant was in any way involved in the principal offence in question.

5. Heard learned Advocates for the parties who have not submitted anything else.

6. Prima facie, on perusal of the communication dated 19.10.2013, i.e. the forged letter, which had been sent, to the present applicant and which had led to the present applicant having released the attachment, in the considered opinion of this Court, the present applicant could not have been faulted with for considering of the said communication as being a genuine communication. This Court notes that while undoubtedly there are some grammatical mistakes in the body of the communication but whereas, the said communication is on the Letterhead of the Gujarat Commercial Tax Department, it contains an outward number and it is in the nature of an order being passed by the Assistant Commissioner of Commercial Tax (Vigilance) Ahmedabad, Gujarat State. The letter also contains the seal of the said authority as well as the seal of the Sales Tax Department. Having regard to the same, more particularly since there is no material to show that the present applicant had in any way acted in connivance with the other accused, in the considered opinion of this Court, the applicant could not have been faulted with for complying with the forged order dated 19.10.2013.

7. At this stage, this Court seeks to rely upon the decision of the Hon'ble Apex Court in case of M/s Neejarika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, reported in 2021 SCC Online SC 315, where the Hon'ble Apex Court has reiterated the principle with regard to exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India or inherent powers under Section 482 of the Code of Criminal Procedure, for quashing of a complaint/FIR. The Hon'ble Apex

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Court in the said decision inter alia observed that save in exceptional cases where non-interference would result in miscarriage of Justice, the Court and the judicial process should not interfere at the stage of investigation of offences; and whereas it is observed by the Hon'ble Apex Court that the parameters for quashing of complaint, as referred to by the Hon'ble Apex Court in case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335, where the Hon'ble Apex Court, more particularly at Para 102 has inter alia laid down certain categories of cases by way of illustrations, wherein extraordinary power under Article 226 or inherent powers under Section 482 of the Code of Criminal Procedure could be exercised by this Court for quashing of an FIR/complaint, either to prevent abuse of the process of any Court or otherwise to secure ends of justice. Para No.102 of the decision in case of Bhajan Lal (supra) being the relevant, the same is reproduced hereinbelow for benefit.

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code, which we have extracted and reproduced above, we give the following categories of cases 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, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of

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the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) 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. (4) 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.

(5) 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.

(6) 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.

(7) 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."

8. In the considered opinion of this Court, the present case would be squarely covered by Instance No.3 of the decision of Bhajan Lal (supra). It is observed in this regard that the uncontroverted allegations made in the FIR and the evidence collected in support therefore, do not disclose commission of any offence and make out a case against the accused.

9. As observed hereinabove, it appears that the FIR had been registered in connection with the letter received by the Bank purporting to be a letter issued by the Sales Tax Department directing the Bank to release the attachment upon the Bank Account of the party named therein. As noted

R/CR.MA/4208/2014 JUDGMENT DATED: 02/05/2022

hereinabove, since the letter prima facie appear to be an official letter, the applicant was doing his duty while he had released the attachment as per the terms of the said communication. Reading of the FIR as well as the material collected during the investigation, in the considered opinion of this Court, there is nothing to show that the applicant was acting in connivance with the other accused nor is there anything to show that the applicant had received any undue benefit. Having regard to the same, in the considered opinion of this Court, the impugned FIR deserves to be quashed, more particularly to secure the ends of justice and also to ensure that miscarriage of justice which would be occasioned on account of non-quashing of the FIR, does not take place.

10. Having regard to the above discussion and observations, in the considered opinion of this Court, the present application deserves to be allowed. Hence, the impugned FIR being C.R. No.I-68 of 2014 registered with Gandhidham 'A' Division Police Station, District East Kutch, as well as all other consequential proceedings arising therefrom, are hereby quashed and set aside qua the present applicant herein. Rule is made absolute to the aforesaid extent.

(NIKHIL S. KARIEL,J) BDSONGARA