Rasendrasinh Bhavanisinh Thakur vs State Of Gujarat
2023 Latest Caselaw 6356 Guj

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    R/CR.MA/34644/2016                           JUDGMENT DATED: 31/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL MISC.APPLICATION NO. 34644 of 2016

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE SANDEEP N. BHATT                   Sd/-

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1     Whether Reporters of Local Papers may be allowed               Yes
      to see the judgment ?

2     To be referred to the Reporter or not ?                        Yes

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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                     RASENDRASINH BHAVANISINH THAKUR
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR HASIT VED for MR. BHADRISH S RAJU(6676) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 31/08/2023
                             ORAL JUDGMENT

1. This application is filed under Section 482 of the Code of

Criminal Procedure, 1973 ('the Code' for brevity), whereby

the applicant has prayed that the F.I.R. being C.R. No.I-14

of 2011 dated 29.07.2011 registered with Surat City DCB

Police Station, Surat, and charge sheet filed pursuant thereto

as well as Criminal Case No.26970 of 2011 pending in the

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Court of learned Chief Judicial Magistrate, Surat, arising out

of said FIR be quashed and set aside. This Court while

issuing rule on 27.12.2016, granted ad-interim relief in terms

of para 8(b) and thereby investigation has been stayed.

However, from the record it appears that before the order

was served to the concerned Investigating Officer, charge

sheet was filed and, therefore, the applicants have also

prayed that the charge sheet filed pursuant to filing of the

aforesaid F.I.R. be quashed and set aside.

2. Heard learned advocate Mr.Hasit Ved for the

applicants; learned Additional Public Prosecutor Mr.Dhawan

Jayswal for respondent no.1-State. The learned advocate for

the applicants referred to the impugned F.I.R. which is

produced at page 18 of the compilation and submitted that

in the said F.I.R. mainly it has been stated that the

complainant is a businessman and his son is doing the

business of purchase and sale of land in Surat. It is alleged

that accused no.1, who is doing the business of land at

Bengaluru came in contact with the son of the complainant,

namely, Ketan as well as the complainant. The complainant

had an interest to purchase certain antique items and in

that context he had received a phone call from a seller from

Delhi somewhere in the month of August 2010, whereby the

said person informed the complainant that he wants to sell

Rice Puller to him. Accused no.6 advised him that since

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there are several cheaters at Delhi and, therefore, he should

take Ketan with him. It was also informed that the

complainant can stay in the house of accused no.1. It is

further alleged that accused no.1 received the complainant

and his son-Ketan at the Airport and took them to his

house, wherein they were beneficiaries of hospitality for

three days, during which period no phone call was received

from antique-item seller. Therefore, the complainant and his

son returned. It is further alleged that after some time,

antique-item seller called and informed the complainant to

come to Palia, situated on Indo-Nepal border. At that time,

applicant no.2-original accused no.2 informed the complainant

that there are several cheaters in Palia and also told him

that original accused no.5 would accompany the complainant

with 4-5 persons. At that time also no phone call was

received from antique-item seller, when he reached Palia and

therefore, the complainant returned to Surat. It is further

alleged that subsequently, in the first week of April 2011,

the complainant received phone call from antique-item seller

and the complainant was asked to come to Palia with Rs.5

lacs for taking antique-item. The complainant, ultimately,

purchased antique-item from the said seller after payment of

Rs.5 lacs, which the complainant packed properly and put

his signature. At that time, original accused no.5 informed

the complainant that it was unsafe to take valuable item

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with him to Surat and, therefore, accused no.5 had asked

the complainant to give the antique-item to him and he

would bring it to Surat personally, and thereafter, he will

hand over the same to the complainant. However, thereafter,

accused no.5 demanded a sum of Rs.16 crores for bringing

the antique-item from Palia to Surat. At that time,

applicants no.1 and 2 as well as original accused no.6 asked

the complainant to go back to his house and that they

would talk and settle the matter. It is further alleged that

applicant no.1 and original accused no.6 came to the house

of the complainant on the next day and informed that these

people are uncontrollable and ultimately, it was decided that

the complainant should give Rs.5.25 crores to original

accused no.5. It was also threatened that these people could

kidnap or murder Ketan, who lived outside and, therefore, it

was decided to give certain amount in installments.

Ultimately, the complainant agreed and it is alleged that

applicant no.1 in his writing had written on a piece of

paper that the complainant needs to make payment of Rs.50

lacs on 20.05.2011, Rs.75 lacs on 23.06.2011, and thereafter

Rs.4 crores on 23.10.2011.

It is further alleged in the F.I.R. that when the complainant

has not sent money on due date as mentioned in the said

piece of paper, original accused no.6 and applicant no.1

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made phone call to the complainant and pressurized him for

making payment. However, the complainant did not send

money and thereafter, original accused no.5 approached the

complainant and demanded money and also gave threats

that the complainant will be kidnapped. He therefore,

informed his brother-Naresh. Said Naresh has made

arrangement for Rs.24 Lacs. Thereafter, original accused no.6

made phone calls and demanded money. Ultimately, when

the complainant informed DCB Police, accused nos.1 to 4 -

were arrested.

3. The learned advocate for the applicants mainly

contended that the ingredients of the alleged offence are not

made out in the impugned F.I.R. so far as the applicant

herein is concerned and the story given by the complainant

in the impugned F.I.R. is not at all believable. The

conspiracy is hatched by the complainant for oblique purpose

and though DCB Police Station, Surat, was not having

territorial jurisdiction, the complainant has lodged the F.I.R.

with the said Police Station. This itself shows that there is

mala fide intention on the part of the complainant.

4. The learned advocate for the applicant, thereafter

contended that the allegations levelled in the impugned

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F.I.R. are so absurd, inherently improper, on the basis of

which no prudent person can afford to reach to conclusion

that there is sufficient ground for proceeding against the

accused with regard to the offence alleged in the F.I.R. The

complainant has not given any phone number of the alleged

antique-item seller, which shows lack of credibility of the

information, because the alleged antique-item which was to

be brought from Palia to Surat does not exist. It is also not

believable that for brining the antique-item worth Rs.5 Lacs

from Palia to Surat, one can demand a sum of Rs.16 Crores

from the complainant and, ultimately, the complainant would

agree under compulsion to pay Rs.5.25 Crores in instalments.

The learned advocate, therefore, submitted that the

impugned F.I.R. be quashed and set aside.

5. Without prejudice to the aforesaid contention, the

learned advocate for the applicant further contended that

there was a civil dispute between the concerned accused and

the complainant and when the amount due from the

complainant was asked he filed the impugned F.I.R. against

the accused. The learned advocate, at this stage, has

referred to news item published in the concerned newspaper,

which is produced at page 33 of the compilation, and

submitted that it is a case of business or civil dispute

between the concerned accused and the complainant, and the

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complainant with a view to avoid payment of Rs.5 Crores,

with mala fide intention, has filed the impugned F.I.R. and

therefore, the same be quashed and set aside.

6. The learned advocate for the applicant has placed

reliance upon decision rendered by the Hon'ble Supreme

Court in the case of G. Sagar Suri and another Vs. State of

U.P. and others, reported in (2000) 2 SCC 636 and decision

rendered in State of Haryana and others Vs. Bhajan Lal

and others, reported in A.I.R. 1992 SC 604 in support of his

contention.

7. Learned advocate appearing for the applicant thereafter

referred to the charge sheet papers and submitted that the

Investigating Officer has recorded statements of brother of

the complainant, namely, Naresh as well as driver of the complainant. However, statement of no independent witnesses

is recorded and thus, two persons have tried to help the

complainant by giving statement before the concerned Police.

However, despite the ingredients of the alleged offence are

not made out against the applicant and the story put forth

by the complainant is so absurd and not believable, the

Investigating Officer has committed error in filing charge

sheet against the applicant. Therefore, the charge sheet filed

pursuant to the impugned F.I.R. be quashed and set aside.

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8. On the other hand, learned APP has submitted that

the Investigating Officer has filed charge sheet against the

accused as there is prima facie case against the accused

and, therefore, this application may not be entertained. It is

further contended that while reading the impugned F.I.R.

ingredients of the alleged offence are prima facie made out

and, therefore, the present application be dismissed. The

learned APP has also referred to the averments made in

the charge sheet papers which are annexed with the F.I.R.

and thereafter submitted that the Investigating Officer has

found sufficient material against the accused and therefore,

the charge sheet is filed and therefore, this Court may not

exercise powers vested in it under section 482 of the Code.

Therefore, the present application be dismissed.

9. Having considered the submissions canvassed on behalf

of the learned advocates for the parties and having gone

through the material produced on record, it is revealed that

the F.I.R. came to be filed against seven accused for the

offence punishable under sections 386, 114 and 120-B of the

Indian Penal Code. After reading the allegations made in

the F.I.R. it is clearly revealed that the story put forth by

the complainant in the F.I.R. is so absurd that any

reasonable person would not believe the same. It is, prima

facie, not believable that for transporting an antique-item

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worth Rs.5 lacs from Palia to Surat any person can demand

Rs.16 crores from the complainant and, thereafter, the

person would agree for Rs.5.25 crores. From the material on

record, it is further revealed that the complainant has given

in writing and promised to pay Rs.5.25 Lacs in three

instalments and thereafter, he had not fulfilled his promise

and when the said amount is demanded by the concerned

accused from the complainant, he lodged this F.I.R. with

DCB Police Station and, thereafter, the concerned accused

were apprehended. From the charge sheet papers also, it

cannot be said that the present applicant is in any way

connected with the alleged incident. Ingredients of the

alleged offence are also not made out so far as the applicant

is concerned.

10. From the record, it is also clear that with a view to

avoid liability of payment by the complainant to the

concerned accused as per his promise given in writing to the

concerned accused, he has filed the impugned F.I.R. It

appears that there is a civil dispute between the parties and

complainant has given a criminal colour to such civil

dispute. Thus, the impugned F.I.R. is nothing but gross

abuse of process of the Court and is filed with mala fide

intention to harass the applicant. Thus, looking to the

overall facts and circumstances of the present case, and

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keeping in mind the law laid down by the Hon'ble Supreme

Court with regard to exercise of powers under section 482 of

the Code by this Court, I am of the opinion that in the

present case such powers are required to be exercised.

11. In view of the discussion made herein above, the

impugned F.I.R. being C.R. No.I-14 of 2011 dated 29.07.2011

registered with Surat City DCB Police Station, Surat and

charge sheet filed pursuant thereto as well as Criminal Case

No.26970 of 2011 pending in the Court of learned Chief

Judicial Magistrate, Surat, arising out of said FIR, are

hereby quashed and set aside qua the present applicant. The

application is accordingly allowed. Rule is made absolute.

Sd/-

(SANDEEP N. BHATT,J) R.S. MALEK