Gujarat High Court
Bijo Varghese S/O. ... vs State Of Gujarat on 8 November, 2023
Bench: Sandeep N. Bhatt
NEUTRAL CITATION
R/CR.MA/4884/2015 ORDER DATED: 08/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 4884 of 2015
With
R/CRIMINAL MISC.APPLICATION NO. 10792 of 2014
With
R/CRIMINAL MISC.APPLICATION NO. 4901 of 2015
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BIJO VARGHESE S/O. KADUPPILKUNNEL SCARIA VARKEY
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR A R ROCKEY for MR. HARDEEP L MAHIDA and MR ASHISH DAGLI,
ADVOCATES for the Applicants
MR CHINTAN DAVE, APP for the Respondent(s) No. 1 - State
MR PARAM BUCH, ADVOCAET for MR HRIDAY BUCH(2372) for the
Respondent(s) No. 2 - Complainant
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/11/2023
ORAL ORDER
1. By way of present applications, under Section 482
of the Code of Criminal Procedure, 1973, the applicants seek
quashment of the impugned FIR being CR-I No.229 of 2013
registered with the Madhupura Police Station, District :
Ahmedabad City for the offences punishable under Sections
408, 418, 419, 465, 467, 471 and 120B of the Indian Penal
Code.
2. The brief facts of the prosecution case are that
one of the accused viz., Piyushkumar Dilipsinh Chauhan
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(Rajput) was working as a Supervisor in the company of the
complainant viz., Ganesh Securities for the work with the
Corporation Bank at Bank Currency Chest, Navrangpura and
for that work, the complainant has given authority in favour
of the said accused - Piyushbhai for day to day work on the
stamp paper of Rs.20/-, wherein he put his photograph
instead of the complainant and made forged stamp and letter
pads in the name of Ganesh Securities, written his address,
manipulated in the RC Book and in connivance with the
other accused viz., Bijo Verghese, who is a period of security
agency and Sivadasan, who is an officer of the bank and
thereby siphoned huge money of Rs.52 lakhs and committed
an offence as alleged in the impugned FIR. Hence, the
impugned complaint.
3. Heard learned advocates. Rule. Learned APP and
learned advocate for the complainant waive service of notice
of rule for and on behalf of the respective respondents
forthwith. With consent of all the learned advocates, these
matters are taken up for hearing and final disposal today.
Since all the matters are arising from one impugned FIR, all
these matters are heard together with consent of the learned
advocate for the parties.
4.1 Learned advocates for the applicants have
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submitted that the applicants have not committed any offence
as alleged in the impugned FIR. They have submitted that
the applicants are innocent and they were performing their
duties. They have submitted that they have no any intention
to grab the money or get the monetary benefits by the
complainant. They have submitted that the complainant has
falsely implicated the applicants in the offence in question.
They have submitted that there is no question of doing fraud
with the complainant as they are discharging their duties.
4.2 They have submitted that the complainant has not
specifically stated any role of any individual accused in the
impugned FIR. They have submitted that there is a delay in
lodging the impugned complaint and it is not explained
properly by the complainant. They have submitted that the
allegations levelled against the applicants are baseless and
therefore also, the impugned FIR may be quashed. They have
submitted that the letter of authority was given for smooth
running of the business and not for any other purpose. They
have submitted that there was a complaint lodged against
the complainant at Mahidharpura Police Station in the year
2010 for cheating and forgery also. They have submitted that
if the complaint is considered as it is, the role of one of the
accused who was working in the bank as a responsible officer
does not commit any offence as alleged in the impugned FIR.
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They have submitted that there is no role at all of that
accused in the commission of offence as alleged. They have
submitted that there is no authority or power with any
applicants to engage any person in the security agency.
4.3 They have submitted that no prima facie case is
made out against the applicants. They have submitted that
all these applications may be allowed.
5. Per contra, learned advocate Mr.Buch for the
complainant has vehemently opposed these applications. He
has submitted that the applicants have jointly committed an
offence and therefore, these applications may be dismissed.
He has submitted that it is matter is trial and this Court
should not exercise its powers under Section 482 of the Code
of Criminal Procedure, 1973 at this stage in such
circumstances. He has submitted that let the applicants be
faced the trial. He has submitted that these applications may
be dismissed.
6. Learned APP Mr.Dave for the State has submitted
that there is prima facie case against the applicants and
therefore, all these applications may be dismissed. He has
submitted that there are evidence against the applicants and
therefore, let they be faced the trial. He has submitted that
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this Court should exercise the powers under Section 482 of
the Code very sparingly in favour of the applicants. He has
submitted that all these applications may be dismissed.
7.1 I have considered the rival submissions made by
the learned advocates for the respective parties. I have
perused the documents available on record. I have gone
through the impugned FIR which is on record. From record
it transpires that, prima facie offence is made out against
the applicants. All the applicants have committed an offence
jointly and in connivance with each other. Further, there is
no dispute about the forgery / cheating by the applicants
with the complainant in the name of his security agency.
Further, there is no dispute about the fact that the
applicants did not possess any security agency. The accused
have committed an offence in the name of the security
agency of the complainant itself and that too without the
knowledge of the complainant. Further, looking to the
statements recorded during the investigation, it prima facie
seems that the applicants have committed an offence and all
the applicants are involved in the commission of offence.
7.2 At this stage, it would be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of Gunmala
Sales Pvt. Ltd., versus Anu Mehta and Ors., reported in
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(2015) 1 SCC 103, where it is observed that this Court
should not conduct mini trial at this stage. The applicants
have approached this Court by filing a quashing application
under Section 482 of the Code of Criminal Procedure, 1973
and therefore, at this stage, this Court should exercise the
powers under Section 482 of the Code very sparingly. The
ingredients of Section 482 of the Code are very clear that if
there is a prima facie case against the applicants / accused,
the Court should not exercise its powers in favour of the
applicants / accused at this stage. The relevant paragraph
33(d) of the said decision reads as under :
"33(d) No restriction can be placed on the
High Court's powers under Section 482 of the
Code. The High Court always uses and must
use this power sparingly and with great
circumspection to prevent inter alia the abuse
of the process of the Court. There are no
fixed formulae to be followed by the High
Court in this regard and the exercise of this
power depends upon the facts and
circumstances of each case. The High Court
at that stage does not conduct a mini trial
or roving inquiry, but, nothing prevents it
from taking unimpeachable evidence or totally
acceptable circumstances into account which
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may lead it to conclude that no trial is
necessary qua a particular Director."
7.3 Further, it would also be fruitful to refer to the
decision of the Hon'ble Apex Court in the case of CBI versus
Aryan Singh recorded in Criminal Appeal No.1025-1026 of
2023, more particularly paragraph 4 thereof, which reads as
under :
"4. Having gone through the impugned
common judgment and order passed by the
High Court quashing the criminal proceedings
and discharging the accused, we are of the
opinion that the High Court has exceeded in
its jurisdiction in quashing the entire
criminal proceedings in exercise of the limited
powers under Section 482 Cr.P.C. and/or in
exercise of the powers under Article 226 of
the Constitution of India.
4.1 From the impugned common judgment
and order passed by the High Court, it
appears that the High Court has dealt with
the proceedings before it, as if, the High
Court was conducting a mini trial and/or the
High Court was considering the applications
against the judgment and order passed by
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the learned Trial Court on conclusion of trial.
As per the cardinal principle of law, at the
stage of discharge and/or quashing of the
criminal proceedings, while exercising the
powers under Section 482 Cr.P.C., the Court
is not required to conduct the mini trial. The
High Court in the common impugned
judgment and order has observed that the
charges against the accused are not proved.
This is not the stage where the prosecution /
investigating agency is/are required to prove
the charges. The charges are required to be
proved during the trial on the basis of the
evidence led by the prosecution /
investigating agency. Therefore, the High
Court has materially erred in going in detail
in the allegations and the material collected
during the course of the investigation against
the accused, at this stage. At the stage of
discharge and/or while exercising the powers
under Section 482 Cr.P.C., the Court has a
very limited jurisdiction and is required to
consider "whether any sufficient material is
available to proceed further against the
accused for which the accused is required to
be tried or not".
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4.2 One another reason pointed by the
High Court is that the initiation of the
criminal proceedings / proceedings is
malicious. At this stage, it is required to be
noted that the investigation was handed over
to the CBI pursuant to the directions issued
by the High Court. That thereafter, on
conclusion of the investigation, the accused
persons have been chargesheeted. Therefore,
the High Court has erred in observing at
this stage that the initiation of the criminal
proceedings / proceedings is malicious.
Whether the criminal proceedings was/were
malicious or not, is not required to be
considered at this stage. The same is
required to be considered at the conclusion of
the trial. In any case, at this stage, what is
required to be considered is a prima facie
case and the material collected during the
course of the investigation, which warranted
the accused to be tried. "
7.4 Under the circumstances, since there is prima facie
case against the applicants, let the applicants be faced the
trial and these applications therefore need not be entertained
by this Court at this stage. This Court restricts itself at this
stage to elaborate the material / evidence as it may prejudice
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the case of the applicants during the trial.
8. For the reasons recorded above, all these
applications are dismissed. Rule is discharged.
(SANDEEP N. BHATT,J)
M.H. DAVE
