Gujarat High Court

Hadayraj Shivkumar Giri(H. S. ... vs State Of Gujarat on 7 January, 2023

Bench: Gita Gopi

     R/CR.MA/2416/2019                                ORDER DATED: 07/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 2416 of 2019

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                    HADAYRAJ SHIVKUMAR GIRI (H.S. GIRI)
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
MR KRUNAL G PATEL(8525) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 07/01/2023

                                 ORAL ORDER

1. Rule. Mr. Hardik Mehta, learned APP waives

service of Rule on behalf of the respondent -

State and Mr. Krunal G. Patel, 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 for

quashing and setting aside the FIR bearing CR

No.I-9/2019 registered with Navrangpura

Police Station, Ahmedabad City for offfences

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punishable under Sections 406, 420 and 114 of

the IPC.

3. The complainant - Parvez Ibrahimbhai Kazi was

working as Conductor in the Company known as

Cadila Pharmaceuticals Ltd. Applicant no.1 is

a President of the Union, while the applicant

no.2 is Secretary who had filed Reference IT

no.3 of 2008 praying for increasing the wages

of the labourers. The case came to be

disposed of with an increment of Rs.1,500/-

to the wagers. The amount which has been

received by a Reference was given through

cheque in the bank account of the complainant

and 53 individuals. It is alleged by the

complainant that out of the said amount, Rs.6

lacs per individual was collected by the

Union towards legal expenses and the

complainant, thus, states that the amount

collected was by defrauding the complainant

and others and therefore, Sections 406 and

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420 of the IPC would be attracted in the

matter.

4. Mr. Virat Popat, learned advocate for the

applicants submits that the Union had filed

several cases before this Court, Labour Court

and Industrial Tribunal and in all about 199

litigations were preferred by the Union. The

applicants, as Union leaders, had worked day

in and day out to ensure that the workmen get

benefit as claimants. They worked as

labourers from the year 2008 to 2015, which

thereafter resulted in compromise and each

labourer was granted Rs.15 lacs towards full

and final settlement.

4.1 Mr. Popat submits that some of the claimants

had accepted the amount and had given the

affidavits stating that they are not desirous

to proceed with the litigations. Mr. Popat

states that necessary MOU/affidavits were

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executed which show that the amount was

accepted without any dispute while 5 of the

the claimants had not come forward to receive

the cheque and thus, the cheques were

returned back to the Company. Mr. Popat

further submits that the amount received by

the individuals had gone to their bank

account, which could be verified through the

bank statement of the Company. Mr. Popat

submits that the terms of full and final

settlement was to the effect that the dues

were finally settled and the workmen were to

submit their resignation in their own

handwriting. Mr. Popat submits that the

present complainant too had resigned and

there should not be any dispute as the money

has been accepted by each of them which

becomes apparent from the communication of

the Company made to the Labour Welfare

Department and further those claimants who

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have not accepted the cheques were returned

back to the Company which itself proves the

bonafide of the Union Officers and thus,

submits that the element of Sections 406 and

420 of the IPC would not be attracted.

4.2 Mr. Popat states that 50 affidavits have been

filed on record of the settlement and for

rest of the three, Mr. Popat submitted that

one has expired after filing of the

affidavit, one is in jail while the other one

is present today.

4.3 Mr. Popat further submits that the parties

have settled the dispute amicably outside the

Court and that there remains no grievance

between them. Therefore, in the larger

interest of the society, the impugned FIR may

be quashed and set aside.

5. The complainant has appeared yesterday and

even today and has filed an affidavit stating

that he and other 53 were serving with the

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Transport Division of Green Channel Travel

Services and the applicants, as Presidents of

the Union and Chairpersons of the Negotiating

Committee with the Companies, have

represented their case of the workers for the

benefits, rights and other demands from time

to time. The complainant joined as Bus

Conductor in the year 1999 and in 2008, a

General Wage Demand was raised by the Union

before the Industrial Union, Ahmedabad and

has affirmed that from time to time, the

litigations before various competent

authorities and vide agreement-cum-

declaration letter dated 1.1.2018, all the

workers of Transport Division of Green

Channel Travel Services had agreed for the

deductions towards legal professional fees

along with Union expenses for all the

litigations that the Union have contested on

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behalf of the Union members and had arrived

at final settlement with the Company in the

matter of General Wage Demand pending before

the Industrial Tribunal, Ahmedabad i.e.

Reference IT no.03 of 2008. The complainant

states in his affidavit that out of

misunderstandings and bitter circumstances,

the FIR was lodged.

6. The affidavits of 15 persons have been

produced on record. Today, (1) Rasidkhan

Maheboobkhan Pathan, (2) Anish Mahomad

Hanifbhai Shaikh, (3) Sabirhusen Mohamadmiya

Shaikh, (4) Rameshkumar Chanduram

Kanthumariya, (5) Babubhai Rupabhai Nayak,

(6) Rameshkumar Hiralal Nathbawa, (7)

Sakaraji Ranchhodji Makwana, (8) Jagdishbhai

Chhanabhai Kabira, (9) Pravin Ranchhodbhai

Rathod, (10) Himatram Shankarlal Kalal, (11)

Sureshbhai Jayantibhai Makwana, (12) Digvijay

Rambhai Rathod, (13) Dilipsinh Zala, (14)

R/CR.MA/2416/2019 ORDER DATED: 07/01/2023

Dineshkumar Navalsinh Padhiyar, and (15)

Maheshbhai Pravinbhai Prajapati are present

before this Court and have affirmed the

contents of the affidavits. All the

affidavits have been executed and affirmed

before the notary. Hence, the very contents

and the statements made in the affidavits

would not raise any doubt. The Court has

verified about affidavits of 15 persons who

were present before this Court who all have

confirmed the execution of affidavits by the

rest.

7. Mr. Hardik Mehta, learned Additional Public

Prosecutor for the respondent-State submitted

that any FIR should be quashed in accordance

with the guidelines of the Hon'ble Apex Court

and the parameters laid down therein.

8. Mr. Krunal G. Patel, learned advocate for

respondent no.2 - original complainant has

concurred with the factum of settlement of

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the dispute, as advanced by learned advocate

Mr. Virat Popat, learned advocate appearing

for the applicants. The Court verified the

contents of the compromise with the original

complainant-respondent no.2, who is present

before the Court. The respondent no.2-

original complainant affirmed about execution

of the affidavit dated 17.10.2022, wherein

terms of settlement have been recorded. The

respondent no.2-original complainant,

categorically stated that he has no grievance

against the applicants and that he has no

objection to the quashment of the impugned

FIR filed by him.

9. In the case Mohammed Ibrahim & Ors. Vs State

of Bihar & another reported in (2009) 8 SCC

751, this Court has observed as under:-

"18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of

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"cheating" are as follows:

(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;

(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.

19. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived

(i) to deliver any property to any person, or

(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).

20. When a sale deed is executed

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conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co-accused.

21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.

R/CR.MA/2416/2019 ORDER DATED: 07/01/2023

22. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419 or 420 of the Code."

10. It is true that the offences alleged against

the applicants under Sections 406, 420 of the

Indian Penal Code are compoundable by the

persons cheated and by the owner of property

in respect of which breach of trust has

committed, but with the permission of the

Court. Here the complainant has invoked the

inherent jurisdiction of this Court to quash

the FIR. Considering the principle laid down

by the Apex Court in the case of Gian Singh

v. State of Punjab and another reported in

(2012) 10 SCC 303, the present matter would

fall under the criteria laid down therein. In

paragraph-61 of the said judgment, it has

been observed thus:-

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"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victims family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society.

Similarly, any compromise between the victim and the offender in

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relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest

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of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

11. In view of the settlement arrived at between

the parties, there exists no scope for any

further proceeding in the matter. The

continuance of proceedings would lead to

wastage of precious judicial time as there

would remain no possibility of any conviction

in the case. Hence, the Court is of the

opinion that this is a fit case where the

inherent powers of the Court under section

482 of the Cr.P.C. could be exercised for

securing the ends of justice.

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