Gujarat High Court

Darshana Jatin Gandhi vs State Of Gujarat on 7 August, 2023

Bench: Sandeep N. Bhatt

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    R/CR.MA/10810/2020                           JUDGMENT DATED: 07/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 10810 of 2020
                                  With
               R/CRIMINAL MISC.APPLICATION NO. 9494 of 2020
                                  With
               R/CRIMINAL MISC.APPLICATION NO. 9795 of 2020
                                  With
              R/CRIMINAL MISC.APPLICATION NO. 10594 of 2020

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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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 ?

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                         DARSHANA JATIN GANDHI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR YOGESH LAKHANI, SENIOR ADVOCATE WITH MR.NANDISH H
THACKAR(7008) for the Applicant(s) No. 1
MR PRATIK B BAROT(3711) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 07/08/2023

                            ORAL JUDGMENT

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1. All these applications are filed under Section

482 of the Code of Criminal Procedure, 1973 (`the Code'

for short) praying to quash the FIR being

No.11210025202440 of 2020 registered with Limbayat

Police Station, Surat City for the offences punishable

under Sections 406, 420 and 120B of the Indian Penal

Code and all the further proceedings pursuant to the

same.

2. As the common question of facts and law are

involved in all these petitions and the same FIR is

challenged in all these applications by the accused, at

the request of learned advocates for the parties, they are

heard together and disposed of by this common oral

judgment.

3. For the sake of convenience, the facts of

Criminal Miscellaneous Application No.10810 of 2020 are

considered, which are as under:

3.1. It is averred in the application that the entire

dispute, as per the version of the complainant, pertains

to Shop No.3, situated at A.M.T.Textile Market which

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has been developed on Block No.101, Final Plot No.54 in

T.P.Scheme No.33 in Village Dumbhal; that the land was

originally owned by the accused nos.1 and 2 and others;

that subsequently the accused nos.1 and 2 sold the

subject land to a partnership firm viz. M.S.Corporation

and payment of Rs.40 lacs is paid in cash to accused

no.8 and 10 in the impugned FIR; that the applicant is

neither a party to the transaction nor a signatory to the

registered sale deed; that the respondent no.2 herein had

preferred a complaint to the Limbayat police station on

12.1.2017 making the same allegations as in the

impugned FIR; that the said complaint was inquired and

was disposed of by observing that there was no iota of

evidence showing that the respondent no.2 had made any payment of Rs.40,00,000/-; that similarly the respondent

no.1 made another attempt in the year 2019 on the

basis of verbatim same allegations; the said complaint

was also inquired and disposed of in similar lines; that

on the basis of the same allegations, the respondent no.2

has filed the present FIR and the same is also

entertained by the same police station; which is sought

to be quashed by way of filing these applications.

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4. Heard learned advocates for the parties.

4.1 Learned senior advocate Mr.Lakhani for the

applicants submitted that the impugned FIR is registered

in 2020 for an alleged transaction of the year 2020 i.e.

after an inordinate and unexplained delay of 8 years;

that the impugned FIR is the third attempt after

making two unsuccessful attempts of registering the FIR

in the year 2017 and 2019; in the previous two

complaints, closure report was filed by the Limbayat

Police Station stating that there is no evidence to

corroborate the allegations of the complainant as well as

dispute is of civil in nature; the impugned FIR does not

disclose any new fact as well as does not disclose any

new evidence other than which was already inquired into

in 2017 and 2019 by the very same police station; that

the allegation of the original complainant is that he had

paid Rs.40,00,000/- (Rupees forth lakhs), however, he had

produced only one diary which shows only Rs.4,000/-

(Rupees four thousand only); that the original

complainant has not filed any civil suit in spite of the

allegation of the so-called transaction in the year 2012.

He, therefore, prayed to quash the impugned FIR.

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4.2 In support of his contentions, he has relied on

the decision of this Court rendered in the case of

Hasmukhbhai @ Harishbhai S/o Ravjibhai Bhanderi V/s State of Gujarat, decided on 30.6.2023 in Criminal Miscellaneous Application No.13117 of 2021.

4.3 He has also relied on the judgment of State of

Haryana V/s Bhajan Lal reported in AIR 1992 SC 604 and submitted that this is a case of abuse of process of

law and therefore the impugned FIR requires to be

quashed by allowing these applications.

5. Per contra, learned advocate Mr.Barot for

respondent no.2 has strongly opposed this application and submitted that on bare reading of the complaint, prima

facie case is made out. He has further submitted that

the Court has to consider the facts of the present case

whether the present applicants in collusion with each

other have played with the present complainant and

therefore prima facie ingredients of Sections 406, 409

and 420 are attracted.

5.1 He further submitted that merely because the

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complaint is filed in the year 2020, it is not good

ground as the parties are trying to resolve the dispute

and therefore this Court may not interfere with the

process of criminal proceedings and therefore the present

application deserves to be dismissed.

6. Learned APP Mr.Joshi has also submitted that

essentially it is a dispute between two private parties,

however, prima facie, ingredients of Sections 406, 420

and 120B of the IPC are made out. He has submitted

that no prayer can be granted as the applicants should

face the trial as prima facie case is made out against

the applicants.

7. I have considered the rival submissions and I

have also perused the material placed on record. It

transpires that entire transaction pertains to Shop No.3,

situated at A.M.T.Textile market which has been

developed on Block No.101, Final Plot No.54 in

T.P.Scheme no.33 in village Dumbhal and the

complainant has given some amount for purchase of the

same; somehow, it seems that the said transaction could

not be materialized; the entire transaction as per the

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complaint is alleged to have taken place in the 2012 and

thereafter the complainant had filed the first complaint

in the year 2017, which is also after a delay of five

years for the same allegations impugned in this FIR; the

same was ordered to be filed; thereafter, again in the

year 2019, another complaint was filed for the same

allegations, which was again inquired into and filed;

thereafter the impugned FIR is filed in the year 2020

for the same set of allegations by the complainant.

8. In this background, if the applications of

similar nature were given to the concerned police station

i.e. Limbayat Police Station, Surat city in the years 2017

and 2019 by the complainant against the present applicants and in those applications, the statements were

also recorded, after that it was decided by the concerned

police inspector by yadi that those applications should be

filed as there was no iota of evidence to show that the

complainant had made a payment of Rs.40,00,000/-, then

there is no believable reason to file the impugned

complaint in the year 2020 i.e. 20.6.2020 under Sections

406, 420 and 120B of the IPC before the same police

station pertaining to the same transaction.

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9. In view of the above, the following points have

to be taken into consideration; (i) the complaint filed in

the year 2020 pertains to dispute that occurred in the

year 2012 and no explanation is given in the complaint

for filing the complaint after a period of eight years and

the delay that occurred in filing the complaint at such

belated stage without any explanation for delay and also

vital facts regarding earlier complaint of year 2017 and

2019; (ii) the complainant has not filed any civil suit

though the dispute is primarily of civil nature (iii) even

the conduct of the concerned police officer of the police

station who has taken the complaint or who has directed

to register the complaint is also doubtful in view of the

fact that though there were earlier applications which were inquired, not proceeded further after recording the

statements of the concerned persons regarding the same

subject matter and filed as closed and after delay of

eight years, the police has again registered the impugned

complaint which is given by the complainant and that

too without recording the material aspect that earlier

applications were given in the year 2017 and 2019, were

inquired and thereafter not proceeded further; (iv) that,

even considering the allegations in the complaint,

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essentially the dispute pertains to a civil dispute; (v)

there is no documentary evidence to show that the

complainant has ever paid the amount of Rs.40,00,000/-

to any of the accused; (vi) that there is no documentary

evidence regarding the so-called partnership firm or

private limited company by the name `Blue Feathers

Limited' as alleged by the original complainant in the

impugned complaint as well as the previous complaints.

(vii) Even prima facie, no ingredients of alleged offence

is made out from the FIR.

10. It is also fruitful to refer the facts of present case

in view of some judgments of the Hon'ble Apex Court

which are as under:

"(i) In the case of Sarabjit Kaur V/s The State of Punjab & Anr. Reported in 2023 Live law (SC) 157, it is held by the Hon'ble Apex Court that "a breach of trust does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. Merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. The criminal Courts are not meant to be used for settling scores or pressurise parties to settle civil disputes."

(ii) In the case of Sardar Ali Khan V/s State of Uttar

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Pradesh through Principal Secretary Home Department reported in 2020(0) AIJEL SC 65675, wherein there was civil dispute and criminal proceedings were initiated, it is held by the Hon'ble Apex Court that "there is no allegation of impersonation and forgery of signatures in suit filed by 2nd respondent and having regard to serious factual disputes which are of civil nature, for which civil suits are pending, allowing respondent no.2 to pursue his complaint in criminal proceedings is nothing but abuse of process of law."

(iii) In the case of Banshilal Motilal Chandak V/s State of Gujarat reported in 2019(0) AIJEL SC 240805, it is held by this Court that "the complainant has filed impugned FIR only with view to harass applicants and compel them to part with money though dues of 2009 to 2010 are pending, no reason has been given by first informant for delay in filing complaint and on plain and simple reading of FIR, it is revealed that civil dispute has been given colour of criminal proceedings".

(iv) Prof R.K.Vijayasarathy and Another V/s Sudha Seetharam and Another, reported in 2019(16) SCC 739, it is held by the Hon'ble Supreme Court that "son of the appellants has instituted a civil suit for recovery of money against first respondent. Suit is pending. First respondent has filed the complaint against appellants six years after date of alleged transaction and nearly three years from filing of suit. Averments in complaint, read on its face, do

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not disclose ingredients necessary to constitute offences under Penal Code. Attempt has been made by first respondent to cloak a civil dispute with a criminal nature despite absence of ingredients necessary to constitute a criminal offence. Complaint filed by first respondent against appellants constitutes abuse of process of court and is liable to be quashed." The facts of the case on hand are identical to the facts of the said case."

11. This Court, in Criminal Miscellaneous

Application Nos.13117 of 2021 has considered similar set

of facts and allowed the said application vide order dated

30.6.2023, considering the judgments in cases of (i)

Sarabjit Kaur (supra) (ii) Sardar Ali Khan (supra), (iii) Banshilal Motilal Chandak (supra) and (iv) Prof R.K.Vijayasarathy and Another (supra).

12. In a recent decision in the case of Chanchalpati

Das V/s The State of West Bengal and Ors. Reported in AIR 2023 SC 2710, the Hon'ble Apex Court has held in paragraphs 15 to 21 as under:

"15. In State of A.P. v. Golconda Linga Swamy and Anr.

MANU/SC/0552/2004 : 2004 (6) SCC 522 this Court had observed that the Court would be justified to quash the

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proceedings if it finds that initiation or continuance of such proceedings would amount to abuse of the process of Court.

16. As regards inordinate delay in filing the complaint it has been recently observed by this Court in Hasmukhlal D. Vora and Anr. v. State of Tamil Nadu MANU/SC/1639/2022 that though inordinate delay in itself may not be a ground for quashing of a criminal complaint, however unexplained inordinate delay must be taken into consideration as a very crucial factor and ground for quashing a criminal complaint.

17. In the light of afore-stated legal position, if the facts of the case are appreciated, there remains no shadow of doubt that the complaint filed by the Respondent-complainant after an inordinate unexplained delay of eight years was nothing but sheer misuse and abuse of the process of law to settle the personal scores with the Appellants, and that continuation of such malicious prosecution would also be further abuse and misuse of process of law, more particularly when neither the allegations made in the complaint nor in the chargesheet, disclose any prima facie case against the Appellants. The allegations made against the Appellants are so absurd and improbable that no prudent person can ever reach to a conclusion that there is a sufficient ground for proceeding against the Appellants- Accused.

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18. Before parting, a few observations made by this Court with regard to the misuse and abuse of the process of law by filing false and frivolous proceedings in the Courts need to be reproduced. In the Court. In Dalip Singh v. State of Uttar Pradesh and Ors. MANU/SC/1886/2009 : (2010) 2 SCC 114 it was observed that:

1. For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahimsa" (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.

19. In Subrata Roy Sahara v. Union of India and Ors. MANU/SC/0406/2014 : (2014) 8 SCC 470 it was observed as under:

191. The Indian judicial system is grossly afflicted with frivolous litigation. Ways and means need to be evolved to

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deter litigants from their compulsive obsession towards senseless and ill-considered claims.

20. We would like to add that just as bad coins drive out good coins from circulation, bad cases drive out good cases from being heard on time. Because of the proliferation of frivolous cases in the courts, the real and genuine cases have to take a backseat and are not being heard for years together. The party who initiates and continues a frivolous, irresponsible and senseless litigation or who abuses the process of the court must be saddled with exemplary cost, so that others may deter to follow such course. The matter should be viewed more seriously when people who claim themselves and project themselves to be the global spiritual leaders, engage themselves into such kind of frivolous litigations and use the court proceedings as a platform to settle their personal scores or to nurture their personal ego.

21. Having regard to the facts and circumstances of the present case and for the reasons stated hereinabove, we deem it appropriate to quash the criminal proceedings pending against the Appellants in the Court of Chief Judicial Magistrate, Alipore, arising out of the FIR No. 33 of 2009 registered at Ballygunge Police Station, and quash the same."

13. Further, it will also be fruitful to mention the

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judgment of Hon'ble Supreme Court in the case of State

of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.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 Art.226 or the inherent powers under sec.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.

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(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 sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.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 sec.156(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

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(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."

14. It is also relevant to refer to the judgment of

the Hon'ble Apex Court in the case of Inder Mohan

Goswami and Another versus State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under :

"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court.

Inherent power under Sec. 482 CrPC can be

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exercised:

[(i) to give effect to an order under the Code;]

[(ii) to prevent abuse of the process of court, and]

[(iii) to otherwise secure the ends of justice.]

24. Inherent powers under Sec. 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."

15. In view of above settled position of law and

after considering the facts as alleged in the FIR and

circumstances of the present case, it transpires that it is

nothing but abuse of process of law and continuation of

further proceedings pursuant to the said FIR will cause

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greater hardships to the applicants and no fruitful

purpose would be served if such further proceedings are

allowed to be continued. The Court must ensure that

criminal prosecution is not used as instrument of