Gujarat High Court
Rinaben Nayanbhai Shah vs State Of Gujarat on 9 March, 2023
Bench: Ilesh J. Vora
R/CR.MA/28275/2016 ORDER DATED: 09/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 28275 of 2016
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RINABEN NAYANBHAI SHAH
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
for the Applicant(s) No. 1
MR TATTVAM K PATEL(5455) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR LB DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 09/03/2023
ORAL ORDER
1. Rule returnable forthwith. Learned Additional Public
Prosecutor waives service of rule for the respondent-
State.
2. By way of this application filed under Section 482 of
Cr.P.C., the applicant herein is seeking quashing of
FIR being C.R. No.I-59 of 2016 registered with D.C.B.
Police Station, Ahmedabad for the offences
punishable under Sections 406, 420 and 114 of the
Indian Penal Code.
3. Facts and circumstances giving rise to file present
application are that, the husband of the applicant
Nayanbhai Himmatlal Shah is doing business of
garments in the name and style "Nakoda - the
Fashion Hub", and "Bhairavnath Textiles" at
R/CR.MA/28275/2016 ORDER DATED: 09/03/2023
Ahmedabad. The complainant-respondent no.2 is
also in the same business. The parties had entered
into business transaction and as per the allegation,
the husband of the applicant failed to repay the sale
consideration to the tune of Rs.99,83,609/-. So far
role of the present applicant is concerned, it is
alleged that, at relevant time, she was working with
the husband and was associated with the two
business entity. The complainant lodged an FIR
against the proprietor of the firms and the present
applicant herein alleging that, the accused have
committed an offence of cheating and criminal
breach of trust as they failed to comply their promise
to repay the amount of sale consideration.
4. In the aforesaid facts, the applicant Rinaben Shah
has preferred this quashing petition stating inter alia,
that, she has nothing to do with the business
transaction allegedly entered into by her husband
and complainant. She was neither proprietor of either
of the firms, nor, in any way, connected with the
business. Thus, it is alleged that, without any
reasons, she has been falsely implicated in the
alleged offence.
5. Mr. Tatvam Patel, learned counsel for the applicant
would submits that, the allegations made in the FIR,
accepted as it is, then no any offence is made out
R/CR.MA/28275/2016 ORDER DATED: 09/03/2023
against the applicant herein. The allegations in the
FIR do not constitute a cognizable offence, as there
are no allegations of cheating or criminal breach of
trust against the applicant herein. That there is a
delay in lodging the FIR. That, she has been
implicated in the alleged offence merely because she
is the wife of accused no.2 and daughter-in-law of
accused no.1. That, on merits, if we examine the
averments of the FIR, it reveals that, the entire
dispute is commercial in nature, which has been a
color of criminality by misusing police machinery.
6. In the aforesaid contentions, learned counsel Mr.
Patel would submits that, the attempt on the part of
the complaint to lodge an FIR against the applicant is
nothing but an abuse of process of law and Court and
the proceedings is manifestly attended with malafide
and ulterior motive to pressurize the accused no.1
and 2 to settle the business dispute. Thus, therefore,
he prayed to allow the application and quash the
impugned FIR.
7. The respondent no.2-complainant has been served
and chosen to remain absent.
8. Learned State counsel vehemently opposed the
application and contended that, no any extraordinary
circumstances exist to exercise the inherent powers
R/CR.MA/28275/2016 ORDER DATED: 09/03/2023
of this Court and considering the allegations leveled
in the FIR, Court cannot appreciate the question of
disputed facts at this stage.
9. Having regard to the facts and circumstances of the
present case, the issue arise for determination
whether the averments in the complaint disclose the
ingredients necessary to constitute an offence under
Sections 406 and 420 of the Indian Penal Code.
10. I have carefully considered the allegations
leveled in the FIR. It appears that, the applicant was
working in the business of the husband. It is not
alleged that, she is in any way connected with the
two business entity as referred in the FIR. Thus,
therefore, it prima-facie appears that, she has been
impleaded in the offence because of her husband
failed to repay the amount of business transaction. It
is settled position of law that, in exercise of the
powers under Section 482 of Cr.P.C., the High Court
would be justified to quash proceedings if it finds
that, initiation or continuance of it amounts to abuse
of process of Court or quashing of the proceedings
would otherwise serve the ends of justice. On the
facts on hand, the complainant resorted criminal
machinery because the co-accused no.1 and 2 failed
to repay the amount of business transaction. The
dispute essentially is civil in nature. It is relevant and
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necessary to refer and rely on the judgment of G.
Sagarsuri Vs. State of U.P. (2002 SCC 636), where in
para-8 of the judgment, the Apex Court held that, the
criminal proceedings are not shortcut of other
remedies available in law.
11. For the foregoing reasons and considering the
peculiar facts and circumstances of the present case,
the averments in the complaint do not disclose the
ingredients necessary to constitute an offence of
cheating and criminal breach of trust, so far applicant
is concerned. Thus, this Court is convinced that, the
allegations made in the FIR, if they are taken at their
face value and accepted in their entirety, do not
prima-facie make out a case against the present
applicant and it is the fit case to exercise inherent
powers to prevent the abuse of process of law.
12. Resultantly, this application is allowed. The
impugned FIR being C.R. No.I-59 of 2016 registered
with D.C.B. Police Station, Ahmedabad and
consequential proceedings therefrom are hereby
quashed qua the present applicant. Rule is made
absolute accordingly. Direct service is permitted.
(ILESH J. VORA,J)
TAUSIF SAIYED
