Gujarat High Court
Ajitkumar @ Dhirubhai Hausilaprasad ... vs State Of Gujarat on 8 February, 2024
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R/CR.MA/15589/2021 JUDGMENT DATED: 08/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING &
SET ASIDE FIR/ORDER) NO. 15589 of 2021
With
CRIMINAL MISC.APPLICATION (FOR VACATING
INTERIM RELIEF) NO. 1 of 2022
In R/CRIMINAL MISC.APPLICATION NO. 15589 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
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Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy of
3 NO
the judgment ?
Whether this case involves a substantial question of
4 law as to the interpretation of the Constitution of NO
India or any order made thereunder ?
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AJITKUMAR @ DHIRUBHAI HAUSILAPRASAD MISHRA
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR DIPESH D SONI(9996) for the Applicant(s) No. 1
MR DIPAK H SINDHI(5710) for the Respondent(s) No. 2
MS MAITHILI MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 08/02/2024
ORAL JUDGMENT
1. Rule. Learned counsel for the respective respondents waive
service. Considering the controversy involved in the matter, the
same is taken up for final hearing today.
2. This criminal misc. application under Section 482 of the
Criminal Procedure Code, 1973 (CrPC) is filed seeking quash of the
FIR being C.R. No. 11210015210232, registered with DCB Police
Station, Surat City for the offences punishable under Sections 406,
409, 420, 504, 506(2) and 114 of the Indian Penal Code, 1860 (IPC).
3. Heard, the learned counsel for the petitioner, the learned
counsel for the second respondent, who is the de facto complainant
and the learned Additional Public Prosecutor for the respondent No.
1 - State.
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4. Prefatory facts germane to dispose of this application may
briefly be stated as follow:
4.1 The de facto complainant, who is the second respondent herein
has been running a business in selling and purchasing Prawns (sea
food) along with supplements and Prawn Culture Medicine in the
name and style BKP Aqua Culture Limited.
4.2 The accused No. 1 and the accused No. 3, who are the wife
and the husband, are also doing business in the same field and they
constituted a partnership firm in the name and style "Riddhi Siddhi
Aqua Farm". It is stated that the petitioner, who is hereto accused
No. 2, is not a partner of the said firm of accused Nos. 1 and 3,
however, by falsely representing that he is also a partner of the said
firm by name Riddhi Siddhi Aqua Farm, he has entered into an MoU
with the complainant for supply of raw-material worth Rs.4 crore.
As per the said MoU, the petitioner who is accused No. 2, has to rear
the Prawns and other sea food with raw-material supplied to him and
then return the said reared Prawns and other sea food to the
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complainant. However, after rearing the said Prawns and other sea
food, instead of returning the same to the complainant as per the said
MoU, he sold away the said product to some third parties and did not
even pay the money payable relating to the said sale to the
complainant.
4.3 Therefore, it is stated that the petitioner has impersonated
himself as a partner of the said firm by name Riddhi Siddhi Aqua
Farm and fraudulently entered into the MoU with the de facto
complainant by making false representation that he is the partner of
the said firm and thereby, induced the de facto complainant to
supply the said raw-material to him by false representation and
thereafter, after rearing the Prawns and other sea food, he has sold
away the same without returning the same to the de facto
complainant and thereby, committed criminal breach of trust and
cheating.
4.4 Narrating the above facts, the de facto complainant has
initially lodged a report with the Umra Police Station, Surat stating
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that the petitioner has committed criminal breach of trust and
cheating the de facto complainant. But, the Umra Police did not
register the FIR on the basis of the said report and after conducting a
preliminary inquiry , they refused to register the FIR stating that the
facts of the case only show that there is a civil liability.
4.5 Thereafter, the de facto complainant has approached the
Commissioner of Police, Surat. He entrusted the matter for
investigation to the DCB Police Station, Surat. The said report was
registered as FIR in DCB Police Station. Although, the investigation
has been concluded, the police could not file the Charge-sheet as
there was an interim direction from this Court not to file the Charge-
sheet without prior permission of the Court.
4.6 During the pendency of the investigation, the present
application was filed by the petitioner, who is the accused No. 2,
seeking quash of the said FIR. The petitioner sought quash of the
FIR on twin grounds that, i) the facts of the case on its face value
show that there is only a civil liability and the facts of the case do
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not constitute any offence for which the FIR was registered and as
such, allowing the criminal proceedings to be continued in the said
facts and circumstances of the case would amount to abuse of
process of Court and; ii) that when a similar report was lodged
earlier with Umra Police Station, Surat, that after preliminary
inquiry, the police refused to register the case on the ground that the
facts of the case gave rise only to the civil liability and as such, the
registration of the FIR on the basis of the second report that was
lodged with the police (DCB Police Station) amounts to abuse of
process of law. Thus, these are the two grounds on which the
petitioner sought quash of the FIR.
5. The material fact that the petitioner who is the accused No. 2,
has entered into the MoU with the de facto complainant for supply
of raw-material for the purpose of rearing the same by him and to
return the Prawns and other sea food that are reared with the said
raw-material, is absolutely not in dispute. It is admitted by the
learned counsel for the petitioner fairly that the MoU in question was
entered into by the petitioner with the de facto complainant. The
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contents of the said MoU are also not in dispute and in controversy.
Now, it is significant to note here that the petitioner who is the
accused No. 2, has entered into the said MoU with the de facto
complainant in his capacity as the partner of the firm by name
Riddhi Siddhi Aqua Farm, which is owned by the accused Nos. 1
and 3. The main case of the prosecution is that the petitioner -
accused No. 2 is not the partner of the said firm and he has falsely
represented to the complainant that he is the partner of the said firm
and entered into the said MoU with the complainant with false
representation and thereby, induced the complainant to supply the
said raw-material to the petitioner - accused No. 2 to rear the Prawns
and other sea food and return the same to the complainant and
thereby, cheated the complainant and also committed criminal
breach of trust against him.
5.1 Admittedly, the petitioner is not the partner of the firm by
name Riddhi Siddhi Aqua Farm, which is owned by the accused
Nos. 1 and 3. Even though, he is not the partner of the firm, he has
entered into the MoU with the de facto complainant as if he is the
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partner of the said firm. Therefore, it is a clear case of making false
representation by the petitioner to induce de facto complainant to
deliver the said property i.e., the raw-material to him for the purpose
of rearing Prawns and other sea food and to return the same to the de
facto complainant. Had he been not the partner of the said firm, the
complainant would not have entered into MoU and delivered the
said property to the petitioner. Therefore, the facts of the case,
prima facie, show that he has induced the complainant to deliver the
said property to him by making false representation and by resorting
to impersonation as a partner of the firm. Thus, the facts, prima
facie, constitute the offence punishable under Section 420 of the
IPC. As the petitioner induced the de facto complainant to enter into
MoU and to deliver the raw-material by the said false representation,
the facts of the case, prima facie, clearly indicate that there is guilty
intention in the mind of the petitioner to cheat the de facto
complainant right from the inception of the transaction.
5.2 Even, as per the terms of the MoU, the petitioner has to rear
the Prawns and other sea food with raw-material that were supplied
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to him by the de facto complainant and return the reared Prawns and
other sea food to the de facto complainant. But, as per the
prosecution version, after rearing the Prawns and other sea food with
the raw-material supplied to him, instead of returning the same to the
complainant in terms of the MoU, the petitioner has sold away the
said product to the third parties. Therefore, the said facts of the case
also clearly constitute the offence of criminal breach of trust under
Section 406 of the IPC. When the raw-material was entrusted to him
for the specific purpose of rearing the Prawns and other sea food and
to return the said product to the complainant and in breach of the
same, if the petitioner has sold away the said product to the third
parties, prima facie, it constitutes the offence punishable under
Section 406 of the IPC. In the facts of the case, there is entrustment
of property, also entrustment with dominion over property, and
dishonest misappropriation and conversion of the said property to his
own use in violation of the legal contract.
5.3 Therefore, when the facts of the case, prima facie, contistute
the aforesaid two offences, in the considered view of this Court, it is
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not a fit case where the FIR or the criminal proceedings launched
thereon can be quashed at this stage. The investigation shall be
allowed to go on and the prosecution shall be allowed to file the
Charge-sheet and it is for the trial Court to decide the culpability or
otherwise of the petitioner in respect of the said offences after trial,
in the final adjudication of the case after the trial of the case is
concluded. So, it cannot be said that the registration of the FIR and
investigation in the said case in the given facts of the case amount to
abuse of process of law, warranting interference of this Court in
exercise of its inherent powers under Section 482 of the IPC to
quash the same.
5.4 Apropos the contention raised by the learned counsel for the
petitioner that as the earlier report that was lodged was not registered
by the Umra Police and they refused to register the FIR after
preliminary inquiry on the ground that there is civil liability involved
in the lis, and as such, registering the FIR again by the DCB Police
Station, Surat is not legally sustainable and the present criminal
proceedings are required to be quashed on that ground, this Court
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finds no merit in the said contention. As the Umra Police has taken
an erroneous view without properly understanding the facts of the
case and nature of allegations and the accusation and the legal
position relating to the case, it cannot be said that registration of FIR
by DCB Police Station on the directions given by the Commissioner
of Police, Surat after he was approached by the complainant,
subsequent to refusal of registering FIR by the Umra Police, is
illegal or unsustainable. When the facts of the case, as discussed
herein supra, prima facie constitute the offence punishable under
Sections 420 and 406 of the IPC, the criminal proceedings cannot be
quashed on the ground that Umra Police did not register the FIR on
the ground that facts of the case give rise only to a civil liability.
There is no legal bar to register the FIR subsequently by the DCB
Police Station and to investigate the same. Even, dismissal of the
complaint in criminal proceedings and even discharge of accused in
criminal case will not amount autrefois acquit as per explanation
appended to Section 300 CrPC. So, it will not bar second complaint
or even subsequent prosecution in relation to same accusation in the
Court of law. When that be the legal position, there is absolutely no
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bar to register FIR by DCB Police even after Surat Police refused to
register FIR on the sole ground that there is civil liability. Further, it
is pertinent to note that when the facts of the case give rise to both
civil liability and also the criminal liability, prosecution case cannot
be thrown away and quashed merely on the ground that there is a
civil remedy. The person liable for the same, has to face both the
civil and criminal proceedings. Therefore, the said contention of the
learned counsel for the petitioner is liable to be rejected.
6. Resultantly, the application is dismissed. Rule is discharged.
DCB Police are permitted to file the Charge-sheet as it is stated that
the investigation is now completed. Then, the law has to take its
own course.
6.1 As main application is dismissed, as a sequel, connected
application does not survive. The same stands disposed of
accordingly.
[ Cheekati Manavendranath Roy, J. ]
hiren
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