Ajit Natwarlal Parmar vs State Of Gujarat
2023 Latest Caselaw 5264 Guj

     R/CR.MA/12091/2014                             JUDGMENT DATED: 07/07/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 12091 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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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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                            AJIT NATWARLAL PARMAR
                                     Versus
                          STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. BHADRISH S RAJU(6676) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR MAITHALI MEHTA APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                Date : 07/07/2023
                                ORAL JUDGMENT

1. Pursuant to 'Notice' issued under Section 174 of the Indian

Penal Code, the Investigating Officer, Mr.Anilkumar Ratanjibhai

Gamit, Police Sub Inspector, Crime Branch, Surat filed an

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affidavit tendering unconditional apology before this Court and

giving assurance that such type of mistake would not be

repeated in future.

2. In view of the above explanation, 'Notice' issued under

Section 174 of the Indian Penal Code is discharged and affidavit

is ordered to be taken on record.

3. This is an application filed under Section 482 of the Code of

Criminal Procedure, 1973, seeking to exercise inherent

jurisdiction and prayed to quash and set aside FIR being C.R.No.I-

116 of 2012 registered with Athwa Lines Police Station, Surat for

the offence under Sections 406, 420, 467, 468, 471, 120-B and

114 of the Indian Penal Code.

4. It is the case of the prosecution that the complainant, who

is Respondent No.2, is the officer of the Regional Transport Office

(RTO), Surat alleging in the FIR that applicant, who is owner of

M/s.Siddhi Automobiles and other two accused persons had

created forged invoices showing that amount requires to be paid

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before the RTO for passing of vehicles, has been paid. On

verifying the aforesaid invoices, it was found that amount which

is mentioned in the invoices also not paid but only Rs.16,14,803/-

was paid and Rs.1,55,01,187/- remains unpaid. It is further

alleged in the FIR that the forged stamp of SBI Bank, Pal Branch

was made by the accused No.3- Manojkumar Sumerlal Kundaliya

(Jain) showing that amount is deposited in the account of the

RTO. With aforesaid allegations, the FIR came to be lodged on

5.7.2012.

5. Mr.Bhadrish S. Raju, learned advocate appearing for the

applicant submitted that charge-sheet, which was filed before

the Competent Court showing that not only the present applicant

but other dealers, namely, Ami Motors, Navjivan Auto, Nanavati

Motors, Pride Auto, Ganga Auto, Shivani Auto, etc. who along

with the applicant engage to accused No.3 to deposit the amount

with the RTO, namely, Mr.Manoj Kundaliya, however, said

Mr.Manoj Kundaliya had created the forged stamp of SBI Bank

and used the amount for his personal purpose. It is further

contended by Mr.Raju, learned advocate that Bank account,

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which is the part of the application, showing that amount is

transferred in the account of Mr.Manoj Jain, accused No.3,

however, he remained fails in depositing the amount and created

bogus invoices. Mr.Raju, learned advocate further submitted that

applicant is reputed dealer and doing the business since many

years. However, there was no any allegation earlier made by any

authority, in the case on hand that was Mr.Manoj Jain who is real

culprit, however, present application is falsely implicated in the

FIR. Mr.Raju, learned advocate further submits that though

amount has been transferred in the account of Shri Jain Auto, the

firm of the Manoj Jain, it was fault on the part of the Manoj Jain

who did not deposit in turn to the RTO.

5.1 Mr.Raju, learned advocate further submitted that in fact at

the stage of the anticipatory bail, affidavit was filed by the

Investigating Officer, which is part of the application at page

No.34 wherein, it is mentioned that after verifying the bank

details, the Investigating Officer comes to the conclusion that all

forged receipt and invoices were created by Mr.Manoj Jain and

applicant had transferred the required requisite amount with the

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account of Jain Auto. Mr.Raju, further submits that though

affidavit was filed before the learned Sessions Court and

dropping application wherein intent to drop the name of the

applicant and other accused, person, namely, Dhansukhbhai

Patel, who is the proprietor of Ami Motors was , however,

thereafter, the present applicant was charge-sheeted without

any sufficient material.

5.2. Mr.Raju, learned advocate further submits that present

applicant is utilizing the services of accused Mr. Manoj Jain since

several years and he was depositing the requisite amount to the

RTO on transferring the amount in the account of the Manoj Jain

by the present applicant.

5.3. Mr.Raju, learned advocate further submits that even if the

allegation made in the FIR is accepted on its face value, then

also, there is no allegation against the present applicant with

regard to forgery as admittedly as per the FIR and charge-sheet.

The forged document i.e. bogus stamp of SBI Bank and invoices was

created by Mr.Manoj Jain. Mr.Raju, learned advocate further submitted

that in view of the above, continuation of proceedings would be of

futile exercise and would amount to sheer abuse of process of

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Court and requested this Court to exercise the jurisdiction under

Section 482 of the Criminal Procedure Code and quash the FIR.

6. On the other hand, learned APP, Ms.Maithali Mehta, for the

Respondent-State submits that there is a clear allegation in the

FIR and charge-sheet with regard to the non payment of the

amount as well as creating forged document. Ms.Mehta, learned

APP further submitted that other persons were not charge-

sheeted as they had paid amount of forgery with the RTO,

however, the liability of the applicant is still remained unpaid.

Therefore, the present applicant charge-sheeted and he is

required to be tried by the concerned competent Court.

Ms.Mehta, learned APP submitted that it is the duty of the

applicant to see that amount which is requisite is to be paid with

the RTO, he cannot shift the burden on the shoulder of the

accused No.3 by saying that though amount is transferred in the

account of the accused No.3, he did not deposit it. By submitting

the same, Ms.Mehta, learned APP requested not to entertain the

application and dismiss the same.

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7. Considering arguments advanced by the respective parties,

this Court finds that at the initial stage when the anticipatory bail

was filed, the Report was submitted by Investigating Officer at

page No.34 wherein, it was stated that "at present the arrest of

the applicant is not required as there is no any incriminating

material found during the investigation". The Report, which was

submitted, at page No.40 further reveals that the offence of

forgery was committed by the accused, namely, Mr.Manoj

Kundaliya. After verifying the account details, the Investigating

Officer submitted dropping of Report narrating material collected

during investigation and informing learned Court to delete name

of applicant and Dhasukhbhai Patel, Proprietor in view of the

fact that the accused No.3 who is the real culprit had committed

offence of forgery as well as siphoning the amount of the RTO.

8. The offence of cheating which is alleged to have been

made on the present applicant is also not coming out as there is

no any false representation made by the present applicant from

the inception, which is alleged in the FIR. Looking to the material

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collected during the investigation and the charge-sheet papers,

there is no whisper with regard to the allegation of the forgery as

there is no any forged signature, which was made by the

present applicant or any forged document is created by the

present applicant. Though in the Report submitted before this

Court, it is mentioned that applicant as well as Mr.Dhansukhbha

Patel is required to be dropped from charges. However, without

any further material, the applicant was charge-sheeted and

Mr.Dhansukhbha Patel was dropped from prosecution. The

explanation offered by learned APP that Mr.Dhansukhbha Patel

paid the unpaid RTO amount, which cannot be looked into as

merely by paying of the amount cannot be dropped from the

charges alleged as FIR cannot be termed as recovery

proceedings. Therefore, payment of amount would be

immaterial.

9. Alleged sections in the FIR are 406, 420, 467, 468, 471,

120-B and 114 of the Indian Penal Code. If we examine the

sections alleged then it comes that for implicating the accused

under the charge of incriminating breach of trust i.e; Section 406

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ingredients required as under:

(1) A person should have been entrusted with the property or

entrusted with dominant over the property;

(2) That person should dishonestly misappropriate or convert

to his own use of that property, or dishonestly use or

dispose of the property or willful suffer any other persons

to do so.

(3) That such misappropriation, conversion, use or disposal

should be in violation of direction of law prescribing the

mode in which such trust is to be discharged, or any of

legal contract which the person has made, touching the

discharge of such trust.

10. As discussed above, the present applicant who is dealer

had deposited the requisite amount of the RTO tax in the Bank

account of M/s.Jain Auto having proprietorship of accused No.3,

Mr.Manoj Jain. Therefore, in absence of any allegation with

regard to entrustment of property or with regard to the material

for the same, the applicant cannot be held liable for any act,

which was committed by accused No.3.

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11. That so far as allegation with regard to Section 420 is

concerned, the Section 415 which defines the cheating requires:-

       (1)             Deception of any person;

       (2)(a)          Fraudulently or dishonestly inducing that

                       person;

                (I)    To deliver any property to any person;

(ii) To consent that any person shall retain any

property or;

(2)(b) Intentionally inducing that person to do or omit

to do anything which he would not do or omit if he were not

so deceived, and which act or omission causes or is likely

to cause damage or arm to that person in body, mind,

reputation or property.

12. In the above mentioned definition, there are set of two

separate classes of acts which the person deceived may be

induced to do. In the first place, he may induce fraudulently or

dishonestly to deliver any property to any person. The Second

class of acts set forth in section is doing or omitting to do

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anything which the person deceived could not do or omit to do if

he were not so deceived. In the first class of cases, the inducing

must be fraudulent or dishonest. In the second class of the acts,

the inducing must be intentional but not fraudulent or dishonest.

Reading the averment in the FIR in their entirety and accepting

the allegations to be true, ingredients of intentional deception on

present applicant - original accused right at the beginning of the

transaction has neither been expressly stated not indirectly

suggested in the complaint. Therefore, requirement for

constituting offence under Section 420 is also not fulfilled.

13. So far as allegation of forgery is concerned, this Court is of

the view that charge of forgery cannot be imposed on / sustain

against a person who is not maker of a false document in

question. For constituting offence under Section 464, it is

imperative that a false document is made and accused person is

a maker of the same, otherwise, accused person is not liable for

offence of forgery. As discussed above, the forged stamp and the

seal as well as invoices of the Bank was alleged to have been

created by accused No.3, namely, Mr.Manoj Jain. The present

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applicant cannot be held liable for the act of accused No.3 and

cannot be held to be author of the forged document.

14. In view of above, this Court is of the view that present case

falls under the categories (a) and (e) mentioned by the Apex

Court in the case of Haryana and others V/s. Ch.Bhajan Lal

and others reported in (1992) Supp. (1) SCC 335 and

therefore, the continuation of the proceedings for the impugned

FIR would be harassment on the present applicant and would be

sheer abuse of process of law.

15. In the result, this Criminal Misc. Application No. 12091 of

2014 succeeds. The impugned FIR being C.R.No.I-116 of 2012

registered with Athwa Lines Police Station, Surat for the offence

under Sections 406, 420, 467, 468, 471, 120-B and 114 of the

Indian Penal Code is quashed and set aside as well as other

consequential proceedings qua the present applicant. Rule

made absolute.

16. It is made clear that this observation is made by the Court

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only limited for the applicant. It is open for the learned trial Court

to decide the case with regard to other accused on its own

merits.

(M. K. THAKKER,J) ASHISH M. GADHIYA