Gujarat High Court

Sudhaben Rameshbhai Patel vs State Of Gujarat on 5 September, 2023

Bench: Sandeep N. Bhatt

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     R/SCR.A/8130/2018                                          ORDER DATED: 05/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 8130 of 2018
                                With
           R/SPECIAL CRIMINAL APPLICATION NO. 8133 of 2018
                                With
           R/SPECIAL CRIMINAL APPLICATION NO. 8134 of 2018
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                         SUDHABEN RAMESHBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR HARDIK A DAVE(3764) for the Applicant(s) No. 1
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                  Date : 05/09/2023

                            COMMON ORAL ORDER

1. These applications are filed under Articles 226 and

227 of the Constitution of India for quashing and setting

aside the order passed by the learned 6 th Additional Chief

Judicial Magistrate, Surat below Exhs.14, 15 and 16 in

Criminal Case No.63208 of 2016 dated 18.7.2018 and

discharge the petitioners from all the charges levelled against

them.

2. The brief facts leading to filing of these petitions

are that FIR came to be registered against the present

petitioners and others for the offences punishable under

Sections 406, 420, 465, 467, 468, 471, 120(B) of the Indian

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Penal Code being C.R.No.I-75 of 2016 before Adajan Police

Station, wherein after investigation, the chargesheet was filed

against the present petitioners and others. The petitioners

gave application below Exhs.14,15 and 16 respectively for

discharging them from the above offences as there is no

sufficient material in the chargesheet against them to frame

the charge, which was rejected by the learned trial Court.

Therefore, these petitions are filed.

3. It is further averred that though the applications

were given before the learned trial Court for not to frame

the charge against the present petitioners, the same were

also rejected and charge against the petitioners was framed,

though the petitioners had given application for adjournment

to approach this Court.

4. Heard learned advocate Mr.Dave for the petitioner

and learned APP for the respondent-state.

4.1 Learned advocate Mr.Dave for the petitioners has

drawn my attention towards the contents of FIR and

submitted that the dispute is essentially between Rameshbhai

Patel, Kantibhai Patel and Shashikantbhai Patel regarding

the business transaction by way of selling of the office

premises and the present petitioners who are lady accused

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and related to the them who are other accused persons in

the FIR are falsely implicated in the FIR. He submitted that

as such there is no role attributed to the present petitioners

and merely because they are the spouses of the respective

accused persons mentioned above, they are falsely implicated.

4.2 He submitted that the said transaction is carried

out by using the bank account pursuant to the purchase of

office premises and therefore the present petitioners were

falsely dragged into the proceedings by making them as

accused in the FIR filed under the provisions of Sections 406,

420, 465, 467, 468, 471, 120(B) of Indian Penal Code. The

ingredients of these sections are not satisfied prima facie so

far as the present petitioners are concerned. He submits that

such complaint is filed with malafide intention with a view

to harass all the family members of the accused persons by

impleading everybody irrespective of any overt act or any

abetment made by the present petitioners.

4.3 He submitted that not only that, no ingredients

even under Section 120B can be said to be satisfied qua the

present petitioners and the present proceedings are nothing

but abuse of process of law. He has further submitted that

considering the tenor of the complaint and factual position, it

is alleged in the complaint that accused persons have sold

the properties to the complainant and other relatives and

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they were put as mortgage in the bank and now the threat

is given by the accused persons and therefore the complaint

is filed. He has further submitted that the accused persons

were told by the complainant to perform sale deed for the

properties for which the promissory note is given upon which

the accused persons refused to do so. The complainant has

deposited the cheques which were given to them as security

which came to be dishonoured and therefore the petitioner

and other co-accused persons, in collusion of each other

committed fraud to the complainant and his friends.

4.4 He further submitted that even if the tenor of the

FIR is considered, no specific role qua the present petitioners

is attributed and none of the petitioners had prepared any

bogus or forged documents and even not made forged

signature on any of the documents and therefore there is no

entrustment to the respective petitioners so far as the said

fraud and cheating are concerned and therefore, such charge

is not sustainable against the present petitioner. He has

further submitted that from the bare reading of the entire

papers available of the chargesheet, it is coming on record

that the petitioners have neither availed any loan from the

bank nor tried to make efforts to avail loan from the bank.

He has further submitted that the petitioners have never

mortgaged any property in connection of the loan and the

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petitioner had not given any assurance to the complainant or

any witness and therefore also charges as alleged in the FIR

are not sustainable against the present petitioner.

4.5 He has further submitted that the petitioner not

written any sale deed in favour of the complainant and

therefore it is not coming on record that the petitioner had

prepared any bogus documents and therefore also the charge

as alleged is not sustainable against the petitioners. He has

further submitted that in the proceeding initiated by the

complainant pursuant to the section 138 of the NI Act which

are pending before the concerned Courts and notices are

received by the present petitioner and other accused persons,

the petitioner submits that nowhere in that complaint, the

complainant has stated about the mortgage related properties

and documents and therefore also the charges as alleged is

not sustainable against the present petitioners.

4.6 He has further submitted that the complainant

had already filed private complaint under Section 138 of the

NI Act in the year 2015 and after almost delay of one year,

the present FIR is also filed with a view to harass the

present petitioners by implicating him in the alleged offences.

He, therefore, submitted that when the discharge application

is filed before the learned trial Court, the learned trial Court

has not properly considered these aspects in appropriate

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manner and therefore he has submitted that the present

petition are required to be allowed qua the present

petitioners by granting the prayers in the present petition.

4.7 He has relied on the judgment in the case of

Mohammed Ibrahim and Others V/s State of Bihar and Another reported in 2010(1) GLH 184.

4.8 He, therefore, submitted that no ingredients of the

offences invoked are satisfied and therefore these petitions

are required to be allowed by exercising powers under Article

226 of the Constitution of India by quashing the impugned

orders passed by the learned trial Court.

5. Per contra, learned APP Mr.Jayswal has strongly opposed the prayers made at the bar and has submitted that

prima facie, the learned trial Court has rightly considered the application filed under Section 239 of the Code and has

rejected the said application by giving cogent and convincing

reasons. He has submitted that the learned trial Court has

rightly found that the execution of sale deed has taken place

despite having mortgage on the property and therefore he

has submitted that prima facie case is made out against all

the accused and at this stage of the trial, the learned trial

Court cannot appreciate the charges pertaining to present

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petitioners separately. He has further submitted that even

section 120B is also invoked in the FIR and therefore

considering the fact that the present petitioners are the

spouses of the respective accused persons who have also

played active part in the said offences and therefore the trial

Court has rightly considered these aspects and rightly

rejected the application of the present accused persons for

discharge. He, therefore, prayed to dismiss these petitions.

6. I have considered the rival submissions made at

the bar and also perused the material placed on record.

"Section 239 of the Code reads as under:

239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."

7. The present petitioners are the co-accused in the

impugned FIR and it transpires that there is some

transaction made out from the account of one of the

petitioners but for other two petitioners of the respective

petitions, there is no transaction available on the record.

Prima facie, it transpires that no property of any of the petitioner is mortgaged with the bank. It prima facie also

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transpires that the petitioner has not availed any bank loan.

It also transpires that essentially the dispute is between the

other co-accused persons who have entered in the transaction

of the premises in question by way of registered sale deed

and thereafter some promissory note is also issued pursuant

to the said transaction. However, while considering the

promissory note which is produced on record, there is no

reference about such transaction entered by the parties but

promissory note is executed pertaining to some hand loan

given by the respective present petitioners to the complainant.

That is not sufficient to connect the present petitioners in

the said offence as there is no whisper about the other

transaction as alleged in the complaint except the reference

of this promissory note.

8. Now, the chargesheet is also filed and from the

papers of the chargesheet, no material is found which can

connect the present petitioners in the offence in question and

therefore the ingredients of the sections which are invoked in

the present FIR are not made out.

9. Considering the material available on the record, I

am of the opinion that there is no sufficient material which

can connect the present petitioners of respective petitions in

the alleged offences. Merely executing any promissory note

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itself is not sufficient to connect the present petitioners in

the said transaction. Moreover, assuming for the sake of

argument that there is loan availed from the concerned bank

by the other co-accused persons, then also, it transpires that

from the material available on the record, that as such there

is nothing found out by the investigating agency that any

loan is availed by the accused persons regarding those

properties which is sold to the complainant. In any case, the

learned trial Court has failed to consider the material

available on the record and has erred in not exercising power

under Section 239 of the Code.

10. At this juncture, it is fruitful to referred to the

Hon'ble Apex Court in case Sanjay Kumar Rai V/s State of

Uttar Pradesh and Another reported in 2021 SCC OnLine SC 367, whereby the Hon'ble Apex Court has said that the

Court is duty bound to appreciate the material available on

the record and Court cannot act merely as a post office in

such matters. The Court has to apply its mind by considering

the material available on the record and after considering the

material, the Court can come to the conclusion that in the

present case. From the reasoning given by the trial Court in

the impugned orders, there is no whisper about the same

and such application is rejected on the erroneous ground that

the petitioners have availed the loan which is not supported

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by any material available on the record.

11. Paragraphs 16 to 19 of the judgment in the case

of Sanjay Kumar Rai (supra), read as under:

"16. The correct position of law as laid down in Madhu Limaye (supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. That apart, this Court in the above-cited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its afore-stated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law.

17. Further, it is well settled that the trial court while

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considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on. [Union of India v. Prafulla Kumar Samal ]. Likewise, the Court has sufficient discretion to order further investigation in appropriate cases, if need be.

18. This brings us to the present case wherein the High Court has not gone into the merits of the case and did not analyze the case in light of the settled law referred to above.

19. The High Court has committed jurisdictional error by not entertaining the revision petition on merits and overlooking the fact that 'discharge' is a valuable right provided to the accused. In line with the fact that the High Court and the court below have not examined the fairness of criminal investigation in this case and other related aspects concerning improvement of witness statements, it is necessary for the High Court to reconsider the entire matter and decide the revision petition afresh. Accordingly, we set aside the impugned order dated 28.11.2018 and remand the case back to the High Court for its reconsideration in accordance with law."