Gujarat High Court

Samir Mahendrabhai Patel vs State Of Gujarat on 12 January, 2023

Bench: Gita Gopi

     R/CR.MA/20152/2019                          ORDER DATED: 12/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 20152 of 2019

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                          SAMIR MAHENDRABHAI PATEL
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR JAL UNWALA, SENIOR ADVOCATE ASSISTED BY DHANESH R
PATEL(8226) for the Applicant(s) No. 1
MR BHAVIK R SAMANI(8339) for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 12/01/2023

                               ORAL ORDER

1. Rule returnable forthwith. Mr. Dhawan Jayswal, the

learned APP waives service of notice of rule for and on behalf

of the respondent No.1-State of Gujarat. Mr. Bhavik Samani,

the learned advocate waives service of notice of rule for and

on behalf of the respondent No.2-original first informant.

2. By this application under Section 482 of the Code of

Criminal Procedure, 1973, the applicant-original accused no.4

seeks to invoke the inherent powers of this Court praying for

quashing of the Criminal case No.87912 of 2022 pending

R/CR.MA/20152/2019 ORDER DATED: 12/01/2023

before the Court of learned 2nd Additional Chief Metropolitan

Magistrate, Ahmedabad arising from the F.I.R. being

C.R.No.I-79 of 2019 filed before the Vasna Police Station,

District-Ahmedabad for the offence punishable under

Sections- 406, 420, 409, 120B, 34 and 114 of the Indian Penal

Code.

3. The applicant is accused no.4 of the impugned F.I.R.

being C.R.No.I-79 of 2019 registered with Vasna Police

Station, District - Ahmedabad is contending that he has

committed no offence and the F.I.R. registered against him

smacks of malafide and is with ulterior motive and the facts

suggests that he is innocent and has been wrongly named in

the FIR and falsely implicated.

4. Heard Mr. Jal Unwala, learned senior advocate assisted

by Mr. Dhanesh Patel, learned advocate appearing for the

applicant - accused no.4; Mr. Dhawan Jayswal, learned APP

appearing for the respondent no.1- State of Gujarat and Mr.

Bhavik Samani, the learned advocate appearing for the

respondent no.2 - original complainant.

R/CR.MA/20152/2019 ORDER DATED: 12/01/2023

5. Mr. Jal Unwala, learned senior advocate submits that the

complainant is a President of Trustnagar Co. Op. Housing

Society since last more than one year. Prior to the F.I.R., the

society is a registered society and during the period of 2009 to

2011, the original accused no.5 [now deceased] had been

serving as a President; original accused no.1 had been serving

as Secretary and original accused no.2 had been serving as

Chairman. Mr. Unwala submitted that during the said period,

the society was not in a position to look after, the common

plot bearing survey no.226 admeasuring 1300 sq.mtr., had

decided to either sell or give on rent the said plot and

therefore, the committee members of the society passed a

resolutions dated 26.07.2009 and 04.07.2010 according to

which 11 committee members were authorized to take

decisions with regard to the said plot. Mr. Unwala submitted

that the allegations are against the accused nos.1, 2 and 5

misusing the powers assigned to them by the society and

accused no.6 [now deceased] who for their personal gain had

decided to sell the plot in question to accused no.3 for a

consideration of Rs.1,85,00,000/-. Mr. Unwala submitted that

as per the complaint, all the four accused had executed MOU

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as well as Banakhat with accused no.3 and in the said

banakhat, the resolution dated 04.07.2010 has been allegedly

misused.

6. Mr. Unwala, learned senior advocate further submitted

that the only allegation against the present applicant is for

aiding accused no.3 monetarily and the allegation is that he

had given a cheque dated 30.03.2011 of Bank of Baroda for an

amount of Rs.10,00,000/-. Mr. Unwala submitted that

providing money to accused no.3 would not be an offence. He

further submitted that the alleged banakhat is executed on

15.11.2011, whereas the cheque was given on 30.03.2011 and

thus, Mr. Unwala submitted that how the money given on

30.03.2011 by way of cheque would have any relevance with

the banakhat without any possession which was registered

before the Sub-Registrar, Paldi on 16.11.2011.

7. Mr. Unwala, learned senior advocate submitted that

aiding money or lending money is not crime unless it falls

under the Money Laundering Act and no such act has been

invoked. He further submits that there is no such allegation

R/CR.MA/20152/2019 ORDER DATED: 12/01/2023

from accused no.3 - Pankaj Jayantilal Shah against the

present application of being party to the banakhat. He further

submitted that the present applicant is not even member of

the society.

8. Mr. Jal Unwala, learned senior advocate further

submitted that G.T.K. Trading Private Limited has also given

two cheques on 31.03.2011 for an amount of Rs.5,00,000/-

each to Pankaj Jayantilal Shah while G.T.K. Trading Private

Limited is not made accused.

9. Mr. Unwala further submitted that as per the F.I.R.

dated 02.08.2019, a notorized MOU was executed by

Mahendrabhai Pushkarnath Trivedi; Alkeshbhai Maheshbhai

Shah and Indravadan Popatlal Shah with Pankaj Jayantilal

Shah and at that time Rs.15,00,000/- was given and on

05.04.2011 again Rs.15,00,000/- was given and for that

receipt signed by Ramanbhai and Alkeshbhai was given to

Pankajbhai Shah. Further allegation is that on 14.04.2011 a

simple MOU was executed by Mahendrabhai Trivedi,

President and Alkeshbhai Shah wherein, Mr. Indravadan

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Shah, had signed the document as a witness. The said MOU

reflects a cheque No.332837 without any date, drawn on

Rajkot Nagrik Sahakari Bank, Ahmedabad for an amount of

Rs.5 lakh, given to the society, but the said cheque was not

presented before the bank. It is stated that as per the FIR, the

cheque was to be deposited for title clearance. It is alleged

that without title clearance, a banakhat without possession

was executed on 16.11.2011, while there is no entry with

regard to the said cheque in the society record. Mr. Unwala

further submitted that a general meeting was conducted by

the society and the allegation against three office bearers

regarding siphoning of money was made, which they had

withdrawn as self, by way of different cheques, which

amounts goes to Rs.30 lakh and had caused loss to the

society.

10. Mr. Unwala further submitted that F.I.R. registered is

with the only allegation against the present applicant, of

aiding Pankaj Shah for an amount of Rs.10 lakh while the said

amount has no such connection with the MOU or the banakhat

executed by the society, through its office bearers.

R/CR.MA/20152/2019 ORDER DATED: 12/01/2023

11. Mr. Bhavik Samani, learned advocate appearing for the

respondent no.2 submitted that the FIR came to be registered

under the instruction of the Registrar of the society. The

allegation against the present applicant is of criminal

conspiracy under Section-120B of the IPC, where complainant

says that the real mastermind is the present applicant who is

supporting Pankaj Jayantilal Shah and their intention is to

usurp the common plot of the society and thus, the

investigation is required to be conducted so as to bring out

the case of conspiracy, which is alleged by the complainant

against the present applicant. He further submits that during

the court commission, which was drawn in the civil

proceeding being Lawad Suit No.264 of 2011 and Civil Suit

No.529 of 2018, the present applicant was present as a

witness.

12. The fact suggests that Lawad Suit No.264 of 2011 was

before the Board of Nominees; about 37 disputants had filed

the case against five of the opponents where opponent no.1 is

the Trustnagar Co-operative Housing Society; opponent no.2

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is Indravadan Popatlal Shah as a Chairman; opponent no.3 is

Mahendrabhai P. Trivedi as a President; opponent no.4 is

Alkeshbhai Mahendrabhai Shah as a Secretary and opponent

no.5 is Pankaj Jayantilal Shah. As per order dated 23.11.2011

of Board of Nominees passed by the Deputy Registrar &

Member, Board of Nominee, Ahmedabad Division,

Ahmedabad, the relief in terms of Para-20(A) has been

granted till the disposal of the suit.

13. The only allegation against the present applicant is that

he has given Rs.10 lakh on 30.03.2011 to Pankaj Jayantilal

Shah and at the same time, on 31.03.2011 one GTK Private

Limited had also given two cheques, each of Rs.5 lakh to

Pankaj Jayantilal Shah, but the GTK Private Limited has not

been made an accused in the FIR. There could not be any case

of criminal conspiracy drawn merely because of some money

lended to Pankaj Jayantilal Shah with whom the

MOU/Banakhat as alleged in the FIR, has been drawn. Lawad

Suit finally decides the dispute of the society with the

members, there is no prima-facie case against the present

applicant.

R/CR.MA/20152/2019 ORDER DATED: 12/01/2023

14. Learned APP submitted that any first information report

should be quashed in accordance with the guidelines of the

Apex Court and parameters laid down there. It is further

submitted that because of the interim relief, no further

progress could be made in the matter.

15. Countering the above submission of the learned APP, it

is submitted by learned advocate for the applicant Mr. Unwala

submits that investigation has already been completed and

chargesheet has been filed.

16. In case of State of Haryana V. Bhajan Lal and Others

reported in AIR 1992 SC 604, the Apex Court made the

following observations:-

"8.1. In the exercise of the extra-ordinary power under Article 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

R/CR.MA/20152/2019 ORDER DATED: 12/01/2023

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 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

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against the 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."

17. In view of the foregoing discussion and the ratio laid

down in the above referred judgment there exist no scope for

any further proceeding in the matter. The continuance of

proceedings against the applicant would be abuse of process

of court, the FIR read in entirely does not constitute any

offence against the applicant. Hence, the court is of the

opinion that this 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.

R/CR.MA/20152/2019 ORDER DATED: 12/01/2023

18. In the result, this application is allowed. The Criminal

case No.87912 of 2022 pending before the Court of learned