Gujarat High Court
Vikrambhai Prabhudas Duvani vs State Of Gujarat on 2 January, 2023
Bench: Gita Gopi
R/CR.MA/1072/2018 JUDGMENT DATED: 02/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 1072 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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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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VIKRAMBHAI PRABHUDAS DUVANI & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR.NANDISH H THACKAR(7008) for the Applicant(s) No. 1,2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 2
MR SK BAGGA(5891) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 02/01/2023
ORAL JUDGMENT
1. Rule. Mr. Hardik Mehta, learned APP waives
service of Rule on behalf of the respondent-
R/CR.MA/1072/2018 JUDGMENT DATED: 02/01/2023
State and Mr. Rituraj Meena, learned
advocate waives service of Rule on behalf of
the respondent no.2.
2. This application has been filed under
Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as
"Cr.P.C.") for quashing the FIR bearing CR
No.I-139/2016 registered with "A" Division
Police Station, Junagadh for offences
punishable under sections 406, 420, 120(B),
467, 468, 471 and 114 of IPC as well as
Criminal Case no.1170 of 2017.
3. Mr. Nandish Thackar, learned advocate for
the petitioners submits that pending the
petition, the petitioners have accepted the
OTS proposal in the NPA account of M/s.
Rachana Seeds Industries Pvt. Ltd. and in
accordance to the OTS scheme and after
meeting and discussion with the higher
authority, the Management Committee of the
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Bank, in the meeting held on 27.12.2018, had
approved OTS for Rs.15 crores (plus ECGC
claim of Rs.21.05 crore available for
appropriation) against the Bank dues as on
30.9.2018 plus waiver of future interest and
cost with effect from 1.10.2018 in full and
final settlement of the NPA account on the
terms and conditions as were agreed upon
with the Punjab National Bank, whereby the
loan for the development of the business was
secured. Mr. Nandish Thacker submits that a
prayer is made under Section 482 of the
Cr.P.C. for quashing the FIR bearing CR
no.I-139/2016 registered with "A" Division
Police Station, Junagadh and further
terminating Criminal Case no.1170 of 2017
submitting that there is no any criminality
in the form of cheating or fraud with the
Bank to invoke Sections 406, 420, 120B, 467,
468, 471 and 114 of the IPC against the
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petitioners since the petitioners had paid
regular interest over the cash credit
facilities from the respondent-Bank from the
year 2001 and the petitioners were given
cash credit facility after due diligence by
the respondent-Bank, where equivalent
securities were provided by the petitioners
to the Bank. Mr. Thacker submits that
forgery which is alleged is with regard to
the discrepancy in the stock register and
the physical stock and none of the documents
disclose any forgery to satisfy the
ingredients of Sections 463 and 464 of the
IPC. Mr. Thacker further submits that
because of financial crunch, the petitioners
could not regularly maintain the stock and
there had been occasional delay in paying
the interest amount. Mr. Thacker relying
upon the judgment in the case of Nikhil
Merchant v. CBI, reported in (2008) 9 SCC
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677 submits that when the Bank had settled
with the petitioners by way of OTS offer and
the settlement and the Sarfaesi action was
also in abeyance under the supplementary
agreement between the parties and the charge
under security/title deeds were decided to
be released on receipt of the entire OTS
amount along with the interest, if any, it
is stated that on account of compromise
between the parties, he made a prayer for
quashing the FIR contending that
continuation of the criminal proceedings
would be a futile exercise.
4. While countering the arguments, Mr. Meena
submits that initial loan (cash credit limit
of Rs.12,00,000/-) was granted by the
respondent - Bank and thereafter, the limit
was increased to the tune of approximately
over Rs.50 crores which was given on
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condition that the petitioners were required
to maintain certain degree of stock and to
send details of stock every month between 1st
day of month to 10th day of the month. Mr.
Meena submits that on receiving the stock
statement dated 31.8.2016 showing stock of
Rs.55,81,09,816/-, the officer of the
respondent - Bank visited the premises of
the Company on 17.9.2016 and during the
visit, to the shock and surprise of the
officers of the Bank, there was high level
of discrepancy between the stock statement
given by the petitioners and the actual
stocks and since no satisfactory response
was received from the concerned officers of
the Company, the Bank gave a notice to the
petitioner's Company for explaining the low
level of the stocks dated 22.9.2016 and as
no response was received from the
petitioners, criminal complaint was filed
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against the Directors and guarantors of the
Company.
5. Mr. Meena submits that the investigating
officer, after registration of the FIR,
recorded statements of various witnesses
including employees of the Company and one
such statement of Mr. Shailesh Joshi
disclosed the fact that entire industry is
closed and currently, there was no stock and
similar statement was also given by Sandeep
Kumar Rathod who was employee of the Company
and according to the statement, industry was
closed and the entire stock had been
exported. Mr. Meena submits that since the
entire stock has been disposed of and sold
out, it clearly demonstrates that the sole
intention of the petitioners from the very
beginning was to cheat the Bank and when the
said fact was revealed in a surprise check
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by the Bank, the petitioners decided to sell
the remaining stock leaving the Bank in a
precarious situation. Mr. Meena relying upon
the judgment in the case of State of
Maharashtra, through CBI v. Vikram Anantrai
Doshi & Ors., reported in (2014) 15 SCC 29
submits that even if the Bank has settled
with the petitioners by way of OTS scheme,
the criminality of the petitioners would not
disappear and the nature and gravity of the
offence and societal impact is required to
be considered while deciding the matter as
repayment of money fraudulently obtained
from the Bank and issuance of no due
certificate would not be enough to quash the
FIR since the intention of the petitioners
from the very beginning was to commit fraud
and to cheat the Bank by claiming the credit
facility to the tune of more than Rs.50
crores.
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6. As per the facts, the petitioners were in
the business of manufacturing and trading in
groundnut, groundnut seeds, oil seeds,
onion, garlic, grains and other agriculture
products and manufacture of plastic sheets,
granules etc. in the name and style of M/s.
Rachana Seeds Industries Pvt. Ltd. - a
partnership firm and thereafter, the firm
got registered under the Companies Act from
3.3.2011 and which continued the business in
the name and style of M/s. Rachana Seeds
Industries Pvt. Ltd. Prior to it being
private limited Company, the firm had
approached the complainant-Bank for availing
loan facilities in the year 2000. The cash
credit limit of Rs.12 lacs was granted and
thereafter, the complainant-Bank enhanced
the loan amount to Rs.27 lacs on 5.3.2001
against the collateral security of the
factory premises. Thereafter again, on
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approaching the Bank in 2002, loan limit was
enhanced upto Rs.100 lacs on 28.11.2002 and
in 2003, the limit was extended to Rs.250
lacs on 27.11.2003. In the year 2005, the
Bank had enhanced the amount upto Rs.450
lacs on 5.4.2005. In the year 2006, the
limit was extended to Rs.730 lacs on
16.1.2006. On 12.3.2007, the amount was
enhanced to Rs.908 lacs, on 17.1.2008 to
Rs.958 lacs, 20.5.2009 to Rs.1986 lacs,
28.3.2012 to Rs.1999.77 lacs, 15.9.2012 to
Rs.3337.77 lacs, while on 28.3.2014, the
limit was extended to Rs.4080 lacs and on
18.3.2015, the amount was enhanced to
Rs.50.62 crores. As per the case of the
petitioners during all these years, the
account was regularly maintained and there
was no overdrawing, which fact gets
supported from the executive summary given
by the Bank during the last renewal.
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Executive summary of M/s. Rachana Seeds
Industries Pvt. Ltd., Junagadh CC Ahmedabad
to conduct all the account was recorded as
satisfactory. The operations/servicing/
utilisation levels of FB, NFB, sub-limits
during the review period drawings in the CC
account remained within sanctioned limit and
there has been no overdrawing. The primary
security and the collateral security was
accordingly observed and there was no
adverse report from the bureau/media/web and
the report suggests that there was no
deviation and on satisfaction to the
observations made in the executive summary,
the limit was extended. As per the
complaint, on receiving the stock statement
on 17.9.2016, the complainant as Branch
Manager of the Bank along with his Bank
officer had made a local inspection to
verify the stock of M/s. Rachana Seeds
R/CR.MA/1072/2018 JUDGMENT DATED: 02/01/2023
Industries Pvt. Ltd. on making a stock
inspection at Dolatpara and Sadguru
Industries to verify the stock of M/s.
Rachana Seeds Industries Pvt. Ltd.,
Junagadh, the complainant found that no
stock was maintained as per the statement
and the Bank Manager did not receive any
satisfactory reply. Thereafter, on
22.9.2016, notice was issued for
clarification, but the notice was not
replied. Hence, the complainant informed the
same to the Circle Head Branch Manager,
Ahmedabad and on instruction of filing a
police complaint, FIR was registered. The
fact remains on record that by way of OTS
scheme as agreed upon, the dues have been
paid by way of final payment and no dispute
has been raised with regard to final
payment. The allegation as could be found
from the FIR is to the effect that the
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Branch Manager along with the Bank staff had
gone for the inspection of the actual stock
comparing with the stock statement and the
Manager found that stock was not maintained
as per the statement. The accusation is
under Sections 406, 420, 120(B), 467, 468,
471 and 114 of IPC.
7. Mr. Hardik Mehta, learned APP submits that
the defence whatsoever may be available
during the trial on the facts which would be
established during the process and thus,
submits that an opportunity is required to
be provided to the prosecution to lead the
evidence to establish the offence as alleged
against the petitioners. Hence, Mr. Mehta
submits that the FIR should not be quashed
at the initial stage.
8. In quashing of prosecution at initial stage,
the test is as to whether unrebutted
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allegation made in the complaint establishes
the offence or not. It has to be seen
whether the averment in the complaint made
out would constitute the offence as alleged.
Section 420 of the IPC has been invoked. The
essential ingredients to attract Section 420
are (i) cheating, (ii) dishonest inducement
to deliver property etc. or to make, alter,
destroy any valuable security or anything
and (iii) mens rea of the accused at the
time of making inducement. Making of false
representation is one of the essential
ingredients to constitute the offence of
cheating under Section 420 of the IPC. In
order to bring a case for the offence of
cheating, it is not merely sufficient to
prove that a false representation has been
made but it is further necessary to prove
that the representation was false to the
knowledge of the accused and was made in
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order to deceive the complainant. Here in
this case, while granting the enhancement to
the credit limit upto Rs.50.62 crores on
18.3.2015, a proposal for renewal-cum-
enhancement was considered and the executive
summary of the Bank in connection with M/s.
Rachana Seeds Industries Pvt. Ltd. reflects
that from the earlier financial dealings and
enhancement of the credit limit, the conduct
of the Company was found to be satisfactory.
It was also found that during the limit
period drawing in the CC account remained
within sanctioned limit and there was no
overdrawing. The executive summary of the
Company provided for the Branch at Junagadh
is signed by the Chief Manager, DGM
(Credit), GM (Credit). The observations vide
Paragraphs 1 to 9 are reproduced hereinbelow
to understand the fact as to whether the
ingredients of Section 420 of the IPC would
R/CR.MA/1072/2018 JUDGMENT DATED: 02/01/2023
get attracted.
"1. Proposal for renewal cum
enhancement of FBWC limit from
Rs.36.50 crore to Rs.46.00 crore,
renewal cum enhancement of NFB
limit from Rs.2.50 crore to Rs.3.00
crore and review of existing TL
with O/s of Rs.1.62 crore.
2. Main promoter - Mr. Vikram P
Duvani & Mr. Sunnmy V. Duvani
dealing with PNB since 2000.
3. Established in the year 2000
partnership concern & converted in
Pvt. Ltd. Company in 2011/Location
of Reg/Corporate Office - survey
No.9, Rajkot Road, Dolatpara,
Junagadh-362001.
4. Internal Risk Rating - PNB B2
(47.65%) - Marginally acceptable
Risk/External RR-Care B+ (Risk
weight - 150%).
5. Activity is manufacturing,
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trading and export of groundnut,
groundnut seeds, oil seeds, onion,
garlic, grains and other
agricultural products.
6. The Company has achieved sales
of Rs.93.94 crore during FY 2013-14
against achievement of Rs.113.36
crore during FY 2012-13, sales
decline due to delay in setting up
of a new production line wherein
groundnuts will be sorted by
machine automatically and replace
manual handling which will increase
the quality production, reduce the
cost and increase the profitability
of the Company as whole and delay
in compliance of new rule and
buyers either were cancelling the
orders due to delay or bearing
heavy penalty" Now Company
estimates sales of Rs.156.74 crore
during FY 2014-15.
The Company has earned PBT of
Rs.0.83 crore during FY 2013-14
against PBT of Rs.0.90 crore during
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FY 2012-13 Now Company estimate PBT
of Rs.2.97 crore during FY 2014-15.
7. TNW increased from Rs.3.91
crore as at 31.03.13 to Rs.5.56
crore as at 31.03.14 due to
retention of profit and induction
of fresh share capital on premium.
8. Current ratio is 1.09 as at
31.03.14 which is below from
benchmark level of 1.33. However,
Company has estimated current ratio
of 1.27 as at 31.03.15 and 1.32 as
on 31.03.16.
9. Conduct of account is
satisfactory/Operations / Servicing
/Utilisation levels of FB, NFB, sub
limits - during the review period
drawing in the CC account remained
within sanctioned limit. There has
been no overdrawing."
9. The executive summary itself shows that from
the year 2000, the Company which was
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initially a firm was availing loan
facilities from the Bank. The cash credit
limit was extended and collateral security
was provided. The dealings of the Company
with the Bank for the loan facilities had
been reflected hereinabove which suggests
that continuously from the year 2000 upto
2015, the Bank was providing cash credit
facility to the Company. The conduct was
found satisfactory. There was no
overdrawing, nor there was any adverse
report from credit bureau, nor it was found
that the Company was deviating from the
policies and thus, it cannot be stated that
the Company from the very beginning had made
any false representation with the knowledge
to deceive the complainant; thus, Section
420 of the IPC would not get attracted in
the matter.
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10. In the case of International Advanced
Research Centre for Powder Metallurgy And
New Materials (ARCI) & Ors. v. Nimra
Cerglass Technics (P) Ltd. & Anr., reported
in 2015 LawSuit (SC) 885, the Hon'ble Apex
Court held that distinction between breach
of contract and the cheating would depend
upon the intention of the accused at the
time of alleged inducement. If it is
established that the intention of the
accused was dishonest at the time when
accused made a promise and entered into a
transaction with the complainant to part
with the property or money, then, the
liability is criminal and the accused is
guilty of the offence of cheating. While on
the other hand, if at all it is established
that a representation made by the accused
has subsequently not been kept, criminal
liability cannot be foisted on the accused
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and the only right which the complainant
acquires is the remedy for breach of
contract in a Civil Court.
11. The decision in the case of S.W. Palanitkar
& Ors. v. State of Bihar & Anr. reported in
(2002) 1 SCC 241 has been referred in the
case of International Advanced Research
Centre for Powder Metallurgy And New
Materials (ARCI) (supra), wherein it has
been held as under:-
"21 In order to constitute an
offence of cheating, the intention
to deceive should be in existence
at the time when the inducement
was made. It is necessary to show
that a person had fraudulent or
dishonest intention at the time of
making the promise, to say that he
committed an act of cheating. A
mere failure to keep up promise
subsequently cannot be presumed as
an act leading to cheating."
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12. In the present case, the allegation which
has been made by the complainant, as a
Branch Manager, that after submitting the
statement of stock, on physical verification
at the time of inspection, he could not find
actual stock as stated in the statement. The
reliance has been placed on the statement
given by the employees before the police
stating that the Company was closed and the
stock has been sold out. The forgery in the
form of creating any false document could
not be shown in the very complaint itself
and thereafter, as per the FIR, the Bank
Manager did not receive the satisfactory
reply, thus, the notice was issued, and,
there was no reply to the notice and the FIR
was required to be registered. The condition
precedent for offence under Sections 467 and
471 of the IPC is forgery and the condition
precedent for forgery is making a false
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document. The only statement by the Bank
Manager is that the stock statement which
was submitted was inferred to be false on
verification and during physical inspection,
the stock was not found at the place. To
attract the provision of Section 464 of the
IPC, the Hon'ble Apex Court in the case of
Mohammad Ibrahim & Ors. v. State of Bihar &
Anr. reported in (2009) 8 SCC 751, it has
been observed as under:-
"14. An analysis of section 464 of
Penal Code shows that it divides
false documents into three
categories:
1. The first is where a person
dishonestly or fraudulently makes
or executes a document with the
intention of causing it to be
believed that such document was
made or executed by some other
person, or by the authority of some
other person, by whom or by whose
authority he knows it was not made
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or executed.
2. The second is where a person
dishonestly or fraudulently, by
cancellation or otherwise, alters a
document in any material part,
without lawful authority, after it
has been made or executed by either
himself or any other person.
3. The third is where a person
dishonestly or fraudulently causes
any person to sign, execute or
alter a document knowing that such
person could not by reason of (a)
unsoundness of mind; or (b)
intoxication; or (c) deception
practised upon him, know the
contents of the document or the
nature of the alteration.
In short, a person is said to
have made a `false document', if
(i) he made or executed a document
claiming to be someone else or
authorised by someone else; or (ii)
he altered or tampered a document;
or (iii) he obtained a document by
practicing deception, or from a
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person not in control of his
senses.
12.1 The facts of the case were considered in the
case of Mohammad Ibrahim & Ors. (supra) to
explain the concept of 'false document'. To
understand 'forgery', the relevant Paragraphs
are as under:-
15. The sale deeds executed by
first appellant, clearly and
obviously do not fall under the
second and third categories of
`false documents'. It therefore
remains to be seen whether the
claim of the complainant that the
execution of sale deeds by the
first accused, who was in no way
connected with the land, amounted
to committing forgery of the
documents with the intention of
taking possession of complainant's
land (and that accused 2 to 5 as
the purchaser, witness, scribe and
stamp vendor colluded with first
accused in execution and
registration of the said sale
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deeds) would bring the case under
the first category.
16. There is a fundamental
difference between a person
executing a sale deed claiming that
the property conveyed is his
property, and a person executing a
sale deed by impersonating the
owner or falsely claiming to be
authorised or empowered by the
owner, to execute the deed on
owner's behalf. When a person
executes a document conveying a
property describing it as his,
there are two possibilities. The
first is that he bonafide believes
that the property actually belongs
to him. The second is that he may
be dishonestly or fraudulently
claiming it to be his even though
he knows that it is not his
property. But to fall under first
category of `false documents', it
is not sufficient that a document
has been made or executed
dishonestly or fraudulently. There
is a further requirement that it
should have been made with the
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intention of causing it to be
believed that such document was
made or executed by, or by the
authority of a person, by whom or
by whose authority he knows that it
was not made or executed.
17. When a document is executed by
a person claiming a property which
is not his, he is not claiming that
he is someone else nor is he
claiming that he is authorised by
someone else. Therefore, execution
of such document (purporting to
convey some property of which he is
not the owner) is not execution of
a false document as defined under
section 464 of the Code. If what is
executed is not a false document,
there is no forgery. If there is no
nor section 471 of the Code are
attracted."
13. The question arose for consideration in
Central Bureau of Investigation v. Duncans
Agro Industries Ltd., Calcutta, 1996 (5) SCC
591. It related to a complaint against the
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accused for offences of criminal breach of
trust. It was alleged that a floating charge
was created by the accused debtor on the
goods by way of security under a deed of
hypothecation, in favour of a bank to cover
credit facility and that the said goods were
disposed of by the debtor. It was contended
that the disposal of the goods amounted to
criminal breach of trust. Negativing the
said contention, the Hon'ble Apex Court,
after stating the principle as to when a
complaint can be quashed at the threshold,
held thus:-
"[A] serious dispute has been
raised by the learned counsel as
to whether on the face of the
allegations, an offence of criminal
breach of trust is constituted or
not. In our view, the expression
'entrusted with property' or 'with
any dominion over property' has
been used in a wide sense in
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Section 405, IPC. Such expression
includes all cases in which goods
are entrusted, that is, voluntarily
handed over for a specific purpose
and dishonestly disposed of in
violation of law or in violation of
contract. The expression
'entrusted' appearing in Section
405, IPC is not necessarily a term
of law. It has wide and different
implications in different contexts.
It is, however, necessary that the
ownership or beneficial interest in
the ownership of the property
entrusted in respect of which
offence is alleged to have been
committed must be in some person
other than the accused and the
latter must hold it on account of
some person or in some way for his
benefit. The expression 'trust' in
Section 405, IPC is a comprehensive
expression and has been used to
denote various kinds of
relationship like the relationship
of trustee and beneficiary, bailor
and bailee, master and servant,
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pledger and pledgee. When some
goods are hypothecated by a person
to another person, the ownership of
the goods still remains with the
person who has hypothecated such
goods. The property in respect of
which criminal breach of trust can
be committed must necessarily be
the property of some person other
than the accused or the beneficial
interest in or ownership of it must
be in other person and the offender
must hold such property in trust
for such other person or for his
benefit. In a case of pledge, the
pledged article belongs to some
other person but the same is kept
in trust by the pledgee. In the
instant case, a floating charge was
made on the goods by way of
security to cover up credit
facility. In our view, in such case
for disposing of the goods covering
the security against credit
facility, the offence of criminal
breach of trust is not committed."
(emphasis supplied)
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14. Under what circumstances, the Company came
to be closed and why there was no stock
available would be for the accused to
explain during the civil proceedings, if at
all, why the account had been declared as
NPA and against that NPA account, OTS scheme
was approved and the amount had been
accepted by the Bank. The forgery in terms
of the explanation referred hereinabove is
also not proved. Prima facie, there would
not be any case of forgery. Considering the
fact that the OTS scheme was approved, the
amount has been accepted, and, prima facie,
when there is no case of cheating or any
fraud or forgery since the Bank was dealing
with the firm from the year 2000 and
subsequently too, after being a Company, the
credit facility was enhanced on proper
verification and even the executive summary
supports the case of the petitioners-
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accused, which clarifies that no dishonest
representation or inducement could be found
or inferred; thus, discretion is exercised
as per the principles laid down in the case
of State of Haryana V. Bhajan Lal and
others, reported in AIR 1992 SC 604, wherein
the Hon'ble Apex Court formulated as many as
seven categories of cases, wherein the
extraordinary power under Section 482 of the
Cr.P.C. could be exercised by the High Court
to prevent abuse of process of the Court. It
was clarified that it was not possible to
lay down precise and inflexible guidelines
or any rigid formula or to give an
exhaustive list of circumstances in which
such power could be exercised. The Hon'ble
Apex Court in the said case made the
following observations:-
"8.1. In the exercise of the
extra-ordinary power under Article
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226 or the inherent powers under
Section 482 of the Code of
Criminal Procedure, the following
categories of cases are given 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 guide in myriad kinds
of cases wherein such power should
be exercised:
(a) 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;
(b) where the allegations in the
First Information Report and other
materials, if any, accompanying
the F.I.R. do not disclose a
cognizable offence, justifying an
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investigation by police officers
under Section 156(1) of the Code
except under an order of a
Magistrate within the purview of
Section 155(2) of the Code;
(c) 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;
(d) 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;
(e) 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
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accused;
(f) 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;
(g) 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."
15. Thus, in view of observation and reasons
given hereinabove and taking into
consideration the facts and circumstances of
the case and the complaint in entirety prima
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facie does not constitute any offence or make
out a case against the accused, thus, the
impugned FIR and subsequent proceedings
arising therefrom are required to be quashed
and set aside.
16. In the result, the petition is allowed. The
FIR bearing CR No.I-139/2016 registered with
"A" Division Police Station, Junagadh and the
proceedings initiated in pursuance thereof
are quashed and set aside qua the present
petitioners. Rule is made absolute to the
aforesaid extent. Direct service is
permitted.
(GITA GOPI,J)
Maulik
