Jagdeep Navnitrai Parekh vs State Of Gujarat
2023 Latest Caselaw 7129 Guj

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      R/SCR.A/12598/2023                               ORDER DATED: 27/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 12598 of 2023
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                           JAGDEEP NAVNITRAI PAREKH
                                     Versus
                               STATE OF GUJARAT
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Appearance:
DARSH P DESAI(9048) for the Applicant(s) No. 1
MR RAJESH B DESAI(1216) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MR H S SONI, APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                                Date : 27/09/2023
                                 ORAL ORDER

1. Rule. Learned APP waives service of notice of Rule on behalf of

respondent-State.

2. By way of this petition filed under Article 226 of the Constitution of

India read with Section 482 of the Code of Criminal Procedure (for

short, "the Cr.P.C."), the petitioner has prayed to quash and set aside

the FIR being No.11193052230140 of 2023 registered with

Savarkundla Town Police Station, District: Amreli for the offences

punishable under Sections 406, 420 and 120-B of the Indian Penal

Code and all other consequential proceedings.

3. Learned advocate Mr. Rajesh B. Desai appearing for the petitioner

submitted that the petitioner is innocent and bogus, vague complaint

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is filed against the present petitioner with a view to harass the

petitioner who is totally an innocent person. Learned advocate

would further submit that the petitioner just introduced the accused

No.5 to the original complainant who is the respondent No.2.

Learned advocate would further submit that if any person helps or

introduces to some another person in a good faith without obtaining,

taking and receiving any monitory gain or personal interest or just

to help for introducing any another person in a good faith without

obtaining any benefit shall not be a crime in the eyes of law without

evidence on record. Learned advocate would further submit that

looking to the principle of natural justice, each and every person is

having fundamental right to express or to meet with the object by

inquiring on it. So, in the interest of justice, the present petitioner

role is totally an innocent and he is unaware about the present and

further consequences which would be done by another accused just

by introducing someone to another. Therefore, this is a fit case

where discretion deserves to be exercised in favour of the present

petitioner.

4. Learned APP H. S. Soni for the respondent-State has resisted this on

the ground that the powers under section 482 of Cr.P.C., are to be

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exercised by the Court sparingly and in an appropriate case at an

appropriate time. Presently, the investigation in this case is going on

and it is at a crucial stage, and therefore, the complaint may not be

quashed.

5. Having heard learned advocate for the petitioner and learned APP

for the respondent State, this Court notices that this request is made

for exercise of inherent powers under section 482 of the Cr.P.C.,

which are very wide amplitude. These inherent powers can be

exercised either to sure the ends of justice or to prevent the abuse of

process of law. However, it would dependent on the facts and

circumstances of each case and no category is prescribed by the

Court for the same. What is required to be considered is the nature

and gravity of the offence. Heinous and serious offences, such

offence of rape or dacoity or murder or the offence leading to

serious injuries to the society at large etc. may not be considered for

the purpose of exercise of inherent powers.

6. Ordinarily, it is expected that the category of commercial offences or

disputes of mercantile and of civil nature or matrimonial disputes or

disputes of partnership firms etc., the Court may consider to exercise

these powers, when the parties have chosen to settle the disputes.

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The Court also need to record, whether the continuation of the

criminal prosecution would cause extreme prejudice to the accused

or would cause him injustice, if not allowed quashment, even after

the parties have settled all their disputes. These powers are required

to be exercised sparingly, as stated above. Since, the offence against

the society, it cannot be said to be a private FIR between the parties.

7. It appears from the allegations made in the impugned FIR that after

13/04/2023, Union Bank at Nanapura, Surat notified telephonically

to the complainant that for releasing Bank Guarantee bearing

No.053811GL0002721, Capsave Finance Private Ltd. gave a letter,

and thus the complainant came to know that the authorized person

of Capsave Finance Private Limited and Gaurav Shaman Dune,

authorized person of Valley Finance & Leasing Ltd., Vishal Vijay

authorized person of TSB Finance Pvt. Ltd., authorized person of

A.K.D. Multi Trading Pvt Ltd. Thane (Maharashtra), Kuldipsingh

Gil, Vadodara, Bhadreshbhai Mehta resident of Ahmedabad, and

Jagdeep Navnitarai Parekh conspired with each other during the

meeting and gained the confidence of the complainant in the name

of Yogeshwar Diamonds Firm for getting sanction of loan of Rs.

50 crores, but it could not make out to sanction the said amount,

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the thus the accused persons obtained the necessary documents for

sanctioning the loan of Rs.25 crores in the name of Shree Raj

Export Firm and also took a bank guarantee of 1 crore from Union

Bank in the name of Capsave Finance Pvt Ltd. It appears that the

loan has not been sanctioned and the loan amount has not been

disbursed and the bank guarantee was going to released so that

before the given bank guarantee will be released, the same shall be

freezed, the accused persons have also taken Rs.3,00,000/- from

the complainant in the name of Doon Vally Finance and Leasing

Ltd. and thus, the accused persons conspired and cheated the

complainant.

8. At this stage, in a recent decision of the Hon'ble Supreme Court in

case of Neeharika Infrastructure Pvt. Ltd. Vs. State of

Maharashtra and Ors., reported in 2021 (19) SCC 401, is required

to be referred to. After taking into consideration the earlier decision

on exercising the powers under Section 482 of the Code of Criminal

Procedure including the decision of State of Haryana V. Bhanaj

Lal, reported in 1992 Supp (1) SCC 335 and others. The Hon'ble

Supreme Court has observed in Para No.80, which reads as under:

"80. In view of the above and for the reasons stated above, our final

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conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under section 482 of Cr.P.C and/or under of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under section 173 of Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under section 482 of Cr.P.C. and/or under section 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the

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'rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act

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according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under section 482 of Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the

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jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under section 482 of Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under

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section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under section 173 Cr.P.C., while dismissing/disposing of the quashing petition under section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted"

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can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

9. The matter is pending for investigation so it is open for the petitioner to revive this application after filing of the charge-sheet. So far as the accused in Case No.R/Special Criminal Application No.8983 of 2023 is concerned, the role of the present petitioner is different and therefore, interim relief was granted by this Court in the order dated 19.07.2023 in Case No.R/Special Criminal Application No.8983 of 2023.

10. Considering the allegations made in the impugned FIR, prima facie, the involvement of the petitioner in the alleged offence could not be ruled out. Thus, in view of the principle laid down in the aforesaid judgment and the facts and circumstances of the case, this Court does not find this to be a fit case where discretion under section 482 of Cr.P.C. could be exercised in favour of the petitioners.

11. For the foregoing reasons, the petition is dismissed.

(SAMIR J. DAVE,J) RINKU MALI