Gujarat High Court

Imrankhan Habibkhan Pathan vs State Of Gujarat on 11 October, 2023

Bench: Sandeep N. Bhatt

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      R/CR.MA/22480/2021                                        ORDER DATED: 11/10/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 22480 of 2021

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                           IMRANKHAN HABIBKHAN PATHAN
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR. M.H. BHATT, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 11/10/2023
                                  ORAL ORDER

1.1 When the matter is called, the learned Assistant

Public Prosecutor (APP) has submitted a report dated

11.10.2023 received from the Police Sub-Inspector at

Manjalpur Police Station, Vadodara, who is personally

present in response to this Court's direction given to

learned APP yesterday. The report submitted yesterday,

dated 10.10.2023, has been found to be misleading, as it

has created the false impression that the accused, the

present applicant (Imrankhan Habibkhan Pathan), has

been arrested and that a charge-sheet has also been filed

against him. However, upon inquiry, the Court has

sought clarification, and the learned APP has clarified

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that no charge-sheet has been filed. Nevertheless, the

initial report has given a misleading impression, leading

to the appearance of the officer responsible for its

preparation in court today.

1.2 Today, the officer has tendered a fresh report,

presenting the details of the investigation conducted by

the Investigating Officer. In response to further inquiry,

the concerned Police Sub-Inspector, after offering an

unconditional apology, has acknowledged that the

misleading report has been prepared due to inadvertence.

1.3 It is expected that a Police Sub-Inspector is well-

versed in the provisions of the law, and any police officer is expected to cooperate with the administration of

justice. Submitting such a misleading report not only has

hindered the justice process but also has had an adverse

impact on it. Therefore, after warning the concerned Sub-

Inspector of Police, Mr. A.U. Ninama, to be more diligent

and vigilant in the future and to carry out his duties

without bias and in accordance with the law, the

unconditional apology has been accepted today.

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1.4 With the aforementioned direction, the present

application is now being considered further.

2. This application is filed under Section 482 of the

Code of Criminal Procedure, 1973, wherein,

the applicant has prayed that the FIR being

C.R.No.11196003210828 of 2021 registered with Manjalpur

Police Station, Vadodara for the offences punishable

under Sections 406, 420, 114 and 120(b) of the I.P.C. be

quashed and set aside.

3. Learned advocate for the applicant has submitted

that the present applicant has not been named in the

F.I.R. Furthermore, the applicant has not made any deceitful representations to the respondent No.2 (the

original complainant). The applicant has not taken

custody of the vehicle; rather, the applicant had helped

accused No.1 with the treatment of his mother. When

the applicant demanded his owed amount, the original

accused mentioned the applicant's name during the

investigation. Therefore, the present petition is filed by

the applicant-original accused seeking the quashing of the

F.I.R. The allegations in the F.I.R. clearly establish that

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the applicant is innocent and has been wrongly

implicated in the F.I.R. Even the elements of the alleged

offense could not have been applicable. The allegations

made in the F.I.R. are so absurd and inherently

improbable concerning the applicant that no prudent

person can reasonably conclude that there are grounds

against the applicant. The present F.I.R. is nothing but

a blatant abuse of due process of law, and the

proceedings stemming from the alleged F.I.R. should be

quashed and set aside. It has also been submitted that

the present F.I.R. is a misuse of the police machinery,

lodged with an ulterior motive, wherein unfounded

allegations have been leveled against the applicant. Upon

a simple reading of the F.I.R., it does not satisfy the essential elements of the alleged offenses. No offense can

be said to have been committed by the applicant, and

the complaint is entirely frivolous and vexatious,

seemingly aimed solely at pressuring the applicant.

Therefore, it should be quashed and set aside.

4.         On        the             other         hand,        learned          APP           has

submitted, under the instructions                                 of        the concerned

Police Officer, who is present in the Court that there is

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no other material in the chargesheet papers against the

applicant except the statement of coaccused. Thus, the

learned APP is also not disputing the fact that no other

material is available in the chargesheet papers except

the statement of the coaccused which is not forming part

of the chargesheet. However, learned APP has

vehemently submitted that only on this ground the

impugned FIR and the proceedings arising from the said

FIR may not be quashed by this Court

because there are other offences which are registered

against the applicant. So when the applicant is

having antecedents, this Court may not exercise the

powers under Section 482 of Code of Criminal

Procedure, 1973.

51. I have considered the arguments made on behalf

of learned advocates for the parties. I have also

considered the fact that present offence is registered

under the provisions of Sections 406, 420, 114 and 120(b)

of the I.P.C., as under:

"Section 406 in The Indian Penal Code:-

406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished

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with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 420 in The Indian Penal Code:-

420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Section 114 in The Indian Penal Code:-

114. Abettor present when offence is committed.-- Whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.

Section 120B in The Indian Penal Code:- 1[120B. Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to

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commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."

5.2 Considering the facts of the present case, whereby

there is no evidence that present applicant has taken

custody of vehicle and it seems that applicant had

helped his mother for medical treatment and when such amount is demanded back, such complaint is filed. This

amounts to an abuse of process of law by co-accused.

5.3 I have also gone through the material produced on

record. I have also perused the orders passed by

this Court in similar matters and from the

aforesaid, I am of the opinion that when there is no

material in the papers of the chargesheet against the

applicant, FIR is required to be quashed and

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set aside qua the applicant. Merely because some

other cases are registered against the applicant,

applicant cannot be compelled to face the trial in the

present case when there is no material against him in

the chargesheet papers.

5.4.     In          the          case            of        Girish                  H.          Trivedi

Vs. State of Gujarat,                         this              Court                 (Coram               :

Hon'ble Mr. Justice J.R.Vora [as His Lordship then was])

rendered in Criminal Misc. Application No. 5776 of 2004,

in paragraph no. 7 has observed thus:

"7. Considering the matter in exercise of powers conferred by Section 482 of Code of Criminal Procedure, it is to be seen, whether the facts disclosed by the chargesheet constitutes any prima facie offence against the petitioner.

In this exercise, the Court is not permitted to add or substract anything and shall take the papers or materials on there face value. On going through the papers minutely along with learned advocates, for the parties, the fact emerges that so far as the ownership of the bulk of foreign liquor is concerned, there are statements of the coaccused before the police that the said bulk of foreign liquor was transported by the

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present Section 3 said evidence thereby that not disclose any involvement the crime and offences levelled Prohibition Act. made by used against aspect is material against the present prosecuting fact is taken reaching at of raid by police then culminate petitioner the police petitioner ran as to prosecute E, 81, 112 and 116 Act. Therefore, chargesheet upon any the same, material is petitioner. Now if this fact is considered with of the Indian Evidence Act, the would not be admissible in a trial. Meaning if, this fact is taken on its face value, it does of the petitioner in the ingredient of any of the against him under the Bombay It is well settled that the statements the coaccused before police cannot be the accused. So far as this concerned, it is clear that there is no petitioner with the agency to prosecute the petitioner. Further if the on its face value about the petitioner the spot in Santro Car near the place too this would not into a material to prosecute the for charges levelled against him. Mere fact that tried to stop the car and the away would not be incriminating the petitioner for Sections 66(1)(B), 65 A & of the Bombay Prohibition after carefully considering the papers, prima facie, without embarking inquiry as to truth or falsity for it is clearly borne out that no brought out to prosecute the petitioner

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in the said crime. In this view of the matter, this application is required to be allowed."

5.5 It is also relevant to refer the judgment of

Satishchandra Ratanlal Shah versus State of Gujarat and

Another reported in (2019) 9 SCC 148, more specifically,

paragraphs 11 to 13 are relevant, as under:

"11. Having observed the background principles applicable herein, we need to consider the individual charges against the appellant. Turning to Section 405 read with 406 of IPC, we observe that the dispute arises out of a loan transaction between the parties. It falls from the record that the respondent no.2 knew the appellant and the attendant circumstances before lending the loan. Further it is an admitted fact that in order to recover the aforesaid amount, the respondent no. 2 had instituted a summary civil suit which is still pending adjudication. The law clearly recognizes a difference between simple payment/investment of money and entrustment of money or property. A mere breach of a promise, agreement or contract does not, ipso facto, constitute the offence of the criminal breach of trust contained in Section 405 IPC without there being a clear case of entrustment.

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12. In this context, we may note that there is nothing either in the complaint or in any material before us, pointing to the fact that any property was entrusted to the appellant at all which he dishonestly converted for his own use so as to satisfy the ingredients of Section 405 punishable under Section 406 of IPC. Hence the learned Magistrate committed a serious error in issuing process against the appellants for the said offence. Unfortunately, the High Court also failed to correct this manifest error.

13. Now coming to the charge under Section 415 punishable under Section 420 of IPC. In the context of contracts, the distinction between mere breach of contract and cheating would depend upon the fraudulent inducement and mens rea. (See Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC

168). In the case before us, admittedly the appellant was trapped in economic crisis and therefore, he had approached the respondent no. 2 to ameliorate the situation of crisis. Further, in order to recover the aforesaid amount, the respondent no. 2 had instituted a summary civil suit seeking recovery of the loan amount which is still pending adjudication. The mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating

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unless fraudulent or dishonest intention is shown right at the beginning of the transaction, as it is this mens rea which is the crux of the offence. Even if all the facts in the complaint and material are taken on their face value, no such dishonest representation or inducement could be found or inferred."

5.6 In the instant case also, no material is brought

out from the chargesheet to prosecute the applicant in

the alleged offence. Except the statement of the co-

accused, there is no other evidence on record.

Merely because the applicant was previously involved in

similar case would not mean that he is permanent

accused in every case registered under the Gujarat

Prohibition Act as each case is to be based on independent evidence to connect the applicant for the

alleged offenses.

5.7 Further, it will also be fruitful to mention

the judgment of the Hon'ble Supreme Court in the case

of State of Haryana V/s Bhajan Lal reported in AIR

1992 SC 604, wherein the Hon'ble Supreme Court has

observed thus -

"In the backdrop of the interpretation of the

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various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) 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.

(2) Where the allegations in the first

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information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.



                 (3)     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.

(4) 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 sec.156(2) of the Code.

(5) 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 against the accused.

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(6) 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.

(7) 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."

5.8 Considering the record of the

application, it appears that except the statement of co-

accused there is nothing against the applicant and

therefore any further continuance of the proceedings in

pursuance to the impugned FIR against the present

applicant would amount to abuse of process of Court and

law and therefore in order to secure the ends of justice,

this Court is required to exercise its inherent power u/s.

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482 of the Code.