Patel Dineshbhai Jagjeevanbhai vs State Of Gujarat
2024 Latest Caselaw 857 Guj

Gujarat High Court

Patel Dineshbhai Jagjeevanbhai vs State Of Gujarat on 1 February, 2024

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     R/CR.MA/2034/2024                               ORDER DATED: 01/02/2024

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                    FIR/ORDER) NO. 2034 of 2024
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                         PATEL DINESHBHAI JAGJEEVANBHAI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR. HARDIK J JANI(6497) for the Applicant(s) No. 1,2,3
MS VANDANA H JANI(13859) for the Applicant(s) No. 1,2,3
for the Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                 Date : 01/02/2024

                                  ORAL ORDER

1. Heard learned advocates for the respective parties. Learned APP Mr.Manan Mehta appears on advance copy.

2. Notice. Learned APP waives service of notice on behalf of respondent-State.

3. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."), the applicant has prayed to quash and set aside the complaint being FIR being CR No.11204025230734 of 2023 registered with Kheda Town Police Station, Kheda, for the offences under Sections 406, 408 and 114 of the IPC and all the consequential proceedings arising therefrom.

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4. It is the case of the petitioners that petitioners were the committee members of the Kaloli Milk Produce Co-operative Societies Limited to statutory of the Society came to be conducted by the statutory auditor during the period from 01.04.2019 to 31.03.2022 during the audit, some financial irregularities was noticed and pursuant to the said audit report, the proceedings under the Gujarat Co-operative Societies Act, which came to be issued, an inquiry Officer issued show cause notice and reply was also given and pursuant to the said audit report and considering the special report, the complaint came to be filed against the Chairman and Committee members of the Society. It is undisputed and an admitted fact that nothing is produced on record to show about the role and duties of the Managing Committee members, though it was asked for learned advocate but learned advocate is unable to submit it.

5. Learned advocate has mainly relied upon the order passed by the Co-ordinate Bench of this Court in the anticipatory and stated that there is no any amount was siphoned by the petitioners. It is submitted that only the Chairman has siphoned the amount.

6. Having heard learned Counsel for the respective parties and having gone through the materials available on record, It is needless to say that the complaint is filed on 04.12.2023 and investigation is at very nascent stage and whatever observation made in the complaint are nothing but tentative in nature, which cannot be construed as a final conclusion, yet investigation is in

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progress and case is based on the documentary evidence and statutory auditor has filed the report and during the audit, irregularities were noticed and even supposed, learned advocate read on the one stray-line that the Chairman has misused the amount or the fund of the society, but it is not a ground of admission on the part of the Chairman at nascent stage to quash the proceedings. As the Show-cause notice came to be issued qua alleged amount by the competent authority based on the statutory audit of the records of the society. Hence, trail of the money and role is also yet to be investigated. It is pertinent to note that in the complaint, it is alleged that the accused persons are members of the co-operative society and they have sanctioned various loan amounts i.e. an amount of Rs.1,20,17,180/- and there is some misappropriation and temporary misappropriation of the funds also and accused persons have abetted the said offence and have committed criminal breach of trust. Considering the allegations levelled in the complaint, prima facie, it appears that the present petitioners being a committee members were dominion over the property and it appears that dishonestly, amount is misappropriated and converts in their use, dishonestly dispose of, in violation of any direction of law or the prescribing mode, which is trusted to be discharged either expressly or impliedly being a committee members of the registered co-operative society. The dominion of the property was given to present petitioners under the law and there was legal obligation and the rules and regulations prescribed under the bye law of the society, while discharging

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their duties to discharge of such trust. The society not suffer any loss as present petitioners are facing the charge of criminal breach of trust and considering their obligations as well as their dominion and control over the affairs of the society during the statutory audit, they are found responsible and in this regard the separate proceedings are also being initiated and present complaint is lodged. Hence, prima facie, offence is made out at this stage. On bare perusal, if we except the uncontroverted allegations as it is, prima facie, offence is made out and authority has no prejudice against the accused persons in initiating the criminal proceedings as they have performed their duty in their official capacity and they have directed to initiate the proceedings in the capacity of the public servant as they are having a statutory authority to control and regulate the affairs of the Co-operative Societies registered under the 'Act'.

6.1. In the complaint, it is clearly stated that all Committee members including Chairman have sanctioned, it reveals in the aid of Section 114 of the IPC, the accused persons arraigned as an accused and report being filed against them, it is not in dispute that petitioners were not members of the managing committee members also.

7. Considering the aforesaid fact, no prima facie case is made out to scuttle the investigation as the investigation is at very nascent stage. It would be profitable to refer to the decision of the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra reported in 2021 SCC

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OnLine SC 315, wherein it is observed and paragraph 57 of which reads as under:

"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:

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

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

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

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

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 and a rarity 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. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

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

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8. In view of the above, while exercising the powers under Section 482 of the CrPC, such an exercise is not permissible, and this Court is not obliged to undertake any exercise to hold a mini- trial. Regarding the allegations levelled against the present applicants and that too qua defence of alibi, they are deemed serious and prima facie, after collecting evidence, a charge-sheet has been filed. Hence, this Court is not inclined to examine the correctness of the allegation made in complaint, and on bare perusal nothing suggests that the allegations in the complaint are patently frivolous or do not disclose any offense.

9. Reference is required to be made to the judgment of the Apex Court in the case of Supriya Jain v. State of Haryana, reported AIR 2023 SC(Criminal) 1101.

9.1. Further, reference is required to be made to judgment passed by the Apex Court in the case of Amit Kapoor v. Ramesh Chander, reported in 2012 9 SCC 460 online wherein the Apex Court had held as under:

"27(9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court

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leading to injustice.

(10) It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

(11) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

(12) In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

(13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

10. Even, in light of the law laid down in the case of Mohammed Wajid vs. State of U.P. rendered in Criminal Appeal No.2340 of 2023, herein, this Court has closely examined the allegations made against the accused persons in the complaint and prima facie offence is made out. As, prima facie the

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allegations of Sections 406 and 408 of IPC of the misappropriation and criminal breach of trust is made out. However, it is kept open for the petitioner to file appropriate application of discharge application or to avail statutory remedy available under the law after the investigation is concluded.

11. However, It is made clear that If any proceedings are filed, the concerned Court has to consider the application on its own merits without being influenced by any observation made by this Court. No case is made out to entertain the application. Hence, the present application is dismissed. Notice stands discharged.

Direct service is permitted.

(HASMUKH D. SUTHAR,J) KUMAR ALOK