Gujarat High Court
Sachinbhai Sureshbhai Patel vs State Of Gujarat on 30 September, 2022
Bench: Vaibhavi D. Nanavati
R/SCR.A/2971/2016 ORDER DATED: 30/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 2971 of 2016
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SACHINBHAI SURESHBHAI PATEL & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2
MR KAIVAN K PATEL(6338) for the Respondent(s) No. 2
MS MAITHILI D MEHTA, ADDITIONAL PUBLIC PROSECUTOR for
the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 30/09/2022
ORAL ORDER
1. Heard Mr. P.P. Majmudar, learned advocate
appearing for the applicants, Ms. Maithili D.
Mehta, learned Additional Public Prosecutor
appearing for the respondent No.1 - State and
Mr. Kaivan K. Patel, learned advocate appearing
for the respondent No.2-original complainant.
2. By way of this application, the applicants
herein have prayed for quashing of FIR being
C.R. No.I-41 of 2016 dated 15.04.2016 registered
with Siddhpur Police Station, District Patan,
R/SCR.A/2971/2016 ORDER DATED: 30/09/2022
for the offence punishable under Sections 406,
420 and 114 of the Indian Penal Code, 1860.
3. Mr. P.P. Majmudar, learned advocate appearing
for the applicants submitted that the impugned
FIR fails to constitute the alleged offences
against the applicants herein and that the said
FIR is nothing but an abuse of process of law
and the same does not disclose any cognizable
offence against the applicants herein. Mr. P.P.
Majmudar, learned advocate appearing for the
applicants also submitted that respondent No.2
while instituting the impugned complaint
substrate the fact that an earlier complaint was
instituted by the respondent No.2 before the
Police Sub Inspector, Manjalpur, District
Vadodara, leveling similar allegations wherein
after preliminary inquiry, the police submitted
a report stating that respondent No.2 - original
complainant was not present to give his
statement and that the complaint came to be
filed by the respondent authority. The complaint
R/SCR.A/2971/2016 ORDER DATED: 30/09/2022
filed by the respondent No.2 was for recovery of
money and hence, the said complaint was not
entertained and a closure report to the said
effect came to be filed on 29.03.2016. It
appears that the applicants herein gave their
statements in the said preliminary inquiry on
05.03.2016 and 22.03.2016. The copy of the said
reports are duly produced on record ad Annexure-
C (Collectively). The facts required
adjudication of the present FIR as stated by the
applicants herein are stated thus:-
The respondent No.2 filed impugned FIR
alleging FIR dated 15.04.2016 and stating that
the respondent No.2 - original complainant
started business of agro products at Nedhra
village in Siddhpur District Patan. It is
alleged that the respondent No.2 was in need of
processing machine and therefore, the respondent
No.2 contacted the applicant herein who is one
of the partners of ANG Enterprice. It is also
alleged in the impugned FIR that a quotation was
R/SCR.A/2971/2016 ORDER DATED: 30/09/2022
sent for 16 machines amounting to Rs.26,73,000/-
by email by the applicant herein. It is further
alleged that meeting was held between the
parties on 29.08.2014 and that the parties
agreed to pay Rs.10,00,000/- was to be paid as
down payment and allegedly on 29.08.2014 The
respondent No.2 gave a cheque of Rs. 5,00,000/-
to the applicant herein. It is further alleged
that thereafter on 27.09.2014, another cheque of
Rs.5,00,000/- was also given by the respondent
No.2 to the applicant herein and receipts were
also issued by email. It is also alleged that
though the aforesaid payment was duly paid, the
machinery was not delivered to the respondent
No.2 and in view of above, the applicants were
told that by the respondent No.2 to refund the
down payment. However, the said amount was not
refunded and the machinery was also not been
delivered. Resultantly, the respondent No.2 was
constrained to file impugned FIR.
4. Mr. Kaivan Patel, the learned advocate appearing
R/SCR.A/2971/2016 ORDER DATED: 30/09/2022
for the respondent No.2 - original complainant
was not in a position to controvert the fact
that the complaint impugned is identical to the
first complaint which was filed by the
respondent No.2 at Manjalpur Police Station,
District : Vadodara,which is duly produced at
page No.31.
5. Ms. Maithili D. Mehta, the learned Additional
Public Prosecutor appearing for the respondent
No.1 - State submitted that the applicant-
accused has a factory preparing machines
utilised for preparing packing material, which
is situated at Vadodara so the second cheque was
also delivered at Vadodara and therefore,
Vadodara Police Station would have the
jurisdiction. Similarly, the respondent No.2-
original complainant has a agro product factory
which is a packing material preparing factory
which is situated at Siddhpur.
6. Having heard the learned advocates appearing for
the respective parties. At this stage, it is
R/SCR.A/2971/2016 ORDER DATED: 30/09/2022
apposite to refer to position of law as laid
down by the Hon'ble Apex Court in the Criminal
Appeal No.834 of 2017 dated 08.08.2019. It is
apposite to refer paragraphs No.2.2., 4, 4.1,
4.2 and 4.3 which reads thus :-
"2.2 That the aforesaid prayers/reliefs
were opposed by the appellants herein and
respondent Nos. 2 and 3 herein. It was
submitted that the original complainant
had earlier preferred an application under
Section 156(3) of the Cr.P.C. which came
to be rejected by the learned Magistrate,
vide order dated 27.03.2015 and that the
said order was not assailed by the
complainant and thereafter a fresh private
complaint under Section 200 Cr.P.C. has
been preferred which is pending before the
learned Magistrate. It was also submitted
on behalf of the original accused that the
dispute is of a civil nature which is
tried to be converted into criminal, which
R/SCR.A/2971/2016 ORDER DATED: 30/09/2022
is nothing but an abuse of the process of
law. It was submitted that despite having
the knowledge of the mortgage of the
property with the Andhra Bank, thereafter
the complainant himself had paid the
mortgage money to the Andhra Bank and even
got the sale deed executed in his favour.
It was submitted that if the complainant
was aggrieved, in that case, he would not
have got the sale deed executed in his
favour.
4.1 Even considering the nature of
allegations in the complaint, we are of
the firm opinion that no case is made out
for taking cognizance of the offence under
Section 420/34 IPC. The case involves a
civil dispute and for settling a civil
dispute, the criminal complaint has been
filed, which is nothing but an abuse of
the process of law.
4.2 It is required to be noted that after
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having come to know that the property was
mortgaged with the Andhra Bank, the
original complainant himself paid the
mortgage money and got the mortgage
redeemed. Not only that, thereafter, he
got the sale deed executed in his name.
Thereafter also, he filed the complaint
with the learned Magistrate, being an
application under Section 156(3) of the
Cr.P.C., which came to be rejected by the
learned Magistrate, vide order dated
27.03.2015. The said order was not
assailed by the complainant. It appears
that thereafter he filed a private
complaint under Section 200 Cr.P.C. which
was pending before the learned Magistrate.
Despite the above, he filed a writ
petition before the High Court, which is
nothing but an abuse of the process of
law. The criminal proceedings have been
initiated by the original complainant to
settle the civil dispute. Therefore, in
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the facts and circumstances of the case,
the Investigating Officer and other police
officers were justified in not registering
the FIR and in coming to the conclusion
that the complaint be filed. The earlier
opinion on preliminary inquiry was never
placed before the DCP. Thereafter, on
thorough investigation/inquiry and
considering the facts and circumstances of
the case narrated hereinabove, when it was
opined that the dispute between the
parties is of a civil nature, the High
Court ought not to have issued further
directions. The High Court ought to have
closed the proceedings. Not only the High
Court has issued further directions, but
even has imposed costs and an action
against the appellants 3 to 5 herein
which, in the facts and circumstances of
the case, is not sustainable.
4.3 In view of the above and for the
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reasons stated above and as observed
hereinabove, the initiation of the
criminal proceedings by the original
complainant is nothing but an abuse of the
process of law, we not only quash and set
aside the impugned judgment and order, but
also quash the criminal proceedings
pending before the learned Magistrate in
respect of the transaction in question.
Consequently, the present appeal is
allowed, the impugned judgment and order
dated 13.01.2017 passed by the High Court
is hereby quashed and set aside. Even the
criminal proceedings initiated by the
original complainant pending before the
learned Magistrate in respect of the
transaction in question are hereby quashed
and set aside."
7. In the facts of the present case, it is an
undisputed fact that the respondent No.2 -
original complainant herein preferred a
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complaint before the Manjalpur Police Station
being application No.66 of 2016 for the same
transaction as stated in the Second FIR. The
contents of the FIR as stated above are not
repeated. The said complaint came to be filed by
the respondent authority on 29.03.2016 and the
operative paragraph of the said report reads
thus :-
"As the applicant gave Rs.10,00,000/-
only, the respondent was to receive the
finance money from the applicant at the
rate of 5 %. As the applicant does not
take the machinery for some reasons and
gives vague reply and as no other person
can purchase the said machinery, our money
is blocked in the said machinery, which
has caused huge loss to us. As it has been
stated that the applicant does not take
the machinery, the applicant was contacted
but he did not come to give his statement
till date. It appears that he has
submitted this application with the
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intention of earning money from the
respondent. Therefore, as it appears that
no action is required to be taken with
respect to this application, the officer
is requested to file the said application.
Date: 29/03/2016."
8. The FIR which is impugned and which is duly
produced at page 28 dated 15.04.2016, admittedly
has been filed subsequently after the respondent
authority closed the complaint on 29.03.2016 as
stated above. The aforesaid FIR being C.R. No.I-
41 of 2016 dated 15.04.2016 culminated into
chargesheet, which is also duly produced at page
No.44. The said charge-sheet came to be filed on
19.11.2020.
9. Having considered the documents which are
produced on record and the nature of the
complaints impugned, in view of this Court and
in view of the ratio laid down by the Hon'ble
Apex Court, in view of this Court, the complaint
which is impugned and which has culminated into
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Criminal Case No. 1235 of 2021 would not be
maintainable since the first complaint came to
be closed and which was the same subject matter.
On this ground alone, this Court is inclined to
allow the application filed by the applicants
herein. Consequently, the impugned FIR which has
culminated into the criminal case No.1235 of
2021 stands quashed and the said proceedings
which has resulted in Criminal Case No.1235 of
2021 shall stands terminated.
10. It is however, kept open for the respondent
No.2 to take steps as permissible in the law.
11. This Court has otherwise not gone into the
merits of the matter.
12. Rule is made absolute to the aforesaid
extent.
(VAIBHAVI D. NANAVATI,J)
Pallavi
