Gujarat High Court
Chirag Ragildas Thakar vs State Of Gujarat on 6 September, 2024
NEUTRAL CITATION
R/CR.MA/5576/2019 JUDGMENT DATED: 06/09/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 5576 of 2019
(FOR QUASHING & SET ASIDE FIR/ORDER)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
=======================================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
=======================================================
CHIRAG RAGILDAS THAKAR
Versus
STATE OF GUJARAT & ANR.
=======================================================
Appearance:
MR DHRUVIK K PATEL(7769) for the Applicant(s) No. 1
MR BHAVESH J PATEL(6801) for the Respondent(s) No. 2
MR RADHESH Y VYAS(7060) for the Respondent(s) No. 2
MR JAY MEHTA APP for the Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 06/09/2024
ORAL JUDGMENT
1. By filing instant application under Section 482 of
the Code of Criminal Procedure, 1973, the
applicant has prayed for quashing and setting
aside Criminal Case No.573/2018 pending before the
NEUTRAL CITATION
R/CR.MA/5576/2019 JUDGMENT DATED: 06/09/2024
undefined
court of the learned Additional Judicial
Magistrate, Balasinoar and all consequential
proceedings arising out of the same.
2. The allegations leveled in the impugned private
complaint are as under,
The respondent no.2 herein had availed loan
facility from IndusInd Bank on 16.02.2015 of
R.23,00,000/- each Truck and pursuant to grant of
loan, the respondent no.2 purchased two Trucks on
18.02.2015, thereafter, the respondent no.2 had
made regular payment of installments but because
of non-payment of three installments, the custody
of Trucks owned by the respondent no.2 have been
taken over by the bank and without any notice to
the respondent no.2, the said Truck was sold to
someone else for an amount of Rs.16,12,500/- and
deposited the said sale consideration received
from the sale said truck in the loan account of
the respondent no.2. It is also alleged that the
cheques given by the respondent no.2 towards the
security has been misused and, hence, complaint in
that regard has been filed by him. Thus it is
alleged that the officers of the IndusInd bank
have committed breach of trust with the respondent
no.2 and thereby committed alleged offences.
On filing of such private complaint,
verification of the respondent no.2 was recorded
and, thereafter by an order dated 14.09.2018, the
learned Principal Senior Civil Judge & Additional
Chief Judicial Magistrate, Balasinor directed to
NEUTRAL CITATION
R/CR.MA/5576/2019 JUDGMENT DATED: 06/09/2024
undefined
register complaint against the accused persons and
on the strength of the said order, impugned
private complaint came to be registered.
3. Heard learned advocate, Mr. Dhruvik Patel for the
applicant, learned APP Mr. Jay Mehta for the
respondent no.1 - State of Gujarat and learned
advocate, Mr. Bhavesh Patel for the respondent
no.1.
4. Learned advocate, Mr. Patel submitted that the
prosecution launched against the applicant is
nothing but a clear misuse of the process of law,
therefore, the same may be quashed and set aside.
Learned advocate submitted that in fact, there is
gross delay of more than one year in registration
of impugned complaint against the applicant and at
the time of filing such complaint, there is no
proper explanation much less any plausible
explanation offered by the respondent no.2, which
clearly goes on to show that the applicant is
wrongly arraigned as accused in the aforesaid
offence. In support of this submission, learned
advocate has put reliance upon the decision of
this Court in case of Kishan Singh Vs. Gurpal
Singh, reported in 2011 (1) GLR 894.
5. Learned advocate further submitted that in fact,
at the time of commission of crime, the applicant
was not working with IndusInd Bank and to
substantiate the said submission, learned advocate
has drawn attention towards the relieving letter
dated 12.02.2018 produced on record at Annexure-D
NEUTRAL CITATION
R/CR.MA/5576/2019 JUDGMENT DATED: 06/09/2024
undefined
at Page No.36 of the compilation in pursuance to
his resignation letter dated 31.08.2017 and,
thereafter, the applicant resumed his duty with AU
Small Finance Bank and to substantiate the said
submission, learned advocate has drawn attention
towards the document produced on record at Page
No.37 and submitted that by the said letter dated
29.08.2017, the petitioner was instructed to
resume duty on 27.10.2017. Learned advocate, at
the outset, submitted that the applicant was the
Legal Adviser of the IndusInd Bank and he has
nothing to do with the custody of the vehicle
owned by the respondent no.2. Learned advocate has
also referred to the notice dated 03.10.2015
issued by the Authorized Signatory of the IndusInd
Bank to the respondent no.2, copy of which is
produced on record at Page No.38 of the
compilation and submitted that the applicant is
not the signatory of the said notice. Learned
advocate further submitted that it is the duty of
the applicant to look after the cases of
defaulters and then, file cases against them and
it was not in discharge of the duty to take the
custody of the vehicle of the owner. Learned
advocate submitted that in the entire body of the
complaint, there is no whisper about the role
played by the applicant. Learned advocate,
therefore, submitted that the applicant is wrongly
arraigned as accused in the complaint filed by the
respondent no.2 herein and the said fact has not
NEUTRAL CITATION
R/CR.MA/5576/2019 JUDGMENT DATED: 06/09/2024
undefined
been properly considered by the learned Magistrate
while issuing process against the applicant and,
hence, the prosecution launched against the
applicant is required to be quashed and set aside.
6. Learned advocate, therefore, submitted that
considering the principle of law laid down by the
Hon'ble Apex Court in case of State of Haryana Vs.
Bhajan Lal, reported in AIR 1992 SC 604 as well as
in case of R.P. Kapur Vs. State of Punjab,
reported in AIR 1960 SC 866 : 1960 Cri LJ 1239,
the impugned FIR is required to be quashed and set
aside. It is, therefore, urged that considering
the role attributed to the present applicant, the
present application may be allowed.
7. On the other hand, learned advocate, Mr. Bhavesh
Patel has opposed the present application with a
vehemence. Learned advocate has referred to the
reply to the notice dated 14.03.2016 submitted by
the respondent no.2 and submitted that in the
reply, entire facts of the case have been
narrated, which clearly goes on to show that the
applicant is involved in the commission of crime.
It is, therefore, urged that the present
application may not be entertained.
8. Learned APP Mr. Jay Mehta appears for the
respondent no.1 - State of Gujarat has also
opposed the present application and submitted that
ingredients of the alleged offences are made out
against the applicant and, hence, no discretion
may be exercised in favour of the applicant and
NEUTRAL CITATION
R/CR.MA/5576/2019 JUDGMENT DATED: 06/09/2024
undefined
the present application may be rejected.
9. Having heard learned advocates for the parties and
having gone through the material and evidence
available on record, the only question, which
falls for my consideration is as to whether any
case has been made out by the applicants, who are
close relatives of the husband, for quashing of
the impugned FIR in exercise of my inherent powers
under Section 482 of the CrPC.
10. At the outset, it is apt to refer the law laid
down by the Hon'ble Apex Court in case of Bhajan
Lal (supra). The relevant para reads as under:
"In the backdrop of the interpretation of
the 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 Article 226 or
the inherent powers u/s 482 of the Code of
Criminal Procedure which we have extracted
and reproduced above, the following
categories of cases are given 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 formula and
to give an exhaustive list of myriad kinds
NEUTRAL CITATION
R/CR.MA/5576/2019 JUDGMENT DATED: 06/09/2024
undefined
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
Information Report and other
materials, if any, accompanying the
F.I.R. do not disclose a cognizable
offence, justifying an investigation
by police officers under Section
156(1) of the Code except under an
order of a Magistrate within the
purview of Section 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
NEUTRAL CITATION
R/CR.MA/5576/2019 JUDGMENT DATED: 06/09/2024
undefined
Section 155(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;
(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,
(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."
11. The Hon'ble Apex Court in case of R.P. Kapur
(supra) has summarised some categories of cases
where inherent power can and should be exercised
to quash the proceedings, which are as under,
(i) where it manifestly appears that there is a
legal bar against the institution or
NEUTRAL CITATION
R/CR.MA/5576/2019 JUDGMENT DATED: 06/09/2024
undefined
continuance e.g. want of sanction;
(ii) where the allegations in the first
information report or complaint taken at
its face value and accepted in their
entirety do not constitute the offence
alleged;
(iii) where the allegations constitute an
offence, but there is no legal evidence
adduced or the evidence adduced clearly or
manifestly fails to prove the charge.
12. In view of the ratio enunciated by the Hon'ble
Apex Court in the aforesaid decisions as well as
other decisions, it is required to be noted that
whenever an accused comes before the Court
invoking either the inherent powers under Section
482 of the Criminal Procedure Code to get the FIR
quashed essentially on the ground that such
proceedings are manifestly frivolous or vexatious
or instituted with the ulterior motive for
wreaking vengeance then, in such circumstances,
the Court owes a duty to look into the FIR with
care and a little more closely. The Court while
exercising its jurisdiction under Section 482 of
the CrPC need not restrict itself only to the
stage of a case but is empowered to take into
account the overall circumstances leading to the
initiation/registration of the case as well as the
materials collected in the course of
investigation. Therefore bare perusal of the
contents of the FIR, it is found out that none of
NEUTRAL CITATION
R/CR.MA/5576/2019 JUDGMENT DATED: 06/09/2024
undefined
the ingredients to constitute the offences alleged
are spelt out.
13. Having heard learned advocates appearing for the
parties and having gone through the material and
available on record, it is found out that the
respondent no.2 herein has filed private complaint
has been lodged for the offence under Section 406
of the IPC inter alia alleging that on account of
non-payment of the installments by the respondent
no.2, the truck owned by him has been taken over
and without intimation thereto, it has been sold
to other person and thereby the accused has
committed alleged offence.
14. On careful examination complaint, it is found out
that the said complaint was against the applicant
herein but if the contents of the said complaint
are carefully examined, in that event, it is found
out that not a single allegation and/or avermnet
is made against the applicant and general
allegations allegations are leveled against the
employees of the bank. It is an admitted position
of fact that the applicant is the Legal Advisory
of the IndusInd Bank, who has to look after the
cases related to the defaulters as also give
opinion to file cases against them but in the
seizure of the vehicle of the defaulters, the
applicant has no role to play and the said work is
assigned to other persons. Thus considering the
above facts of the case, none of the ingredients
of the alleged offences are satisfied.
NEUTRAL CITATION
R/CR.MA/5576/2019 JUDGMENT DATED: 06/09/2024
undefined
15. Thus in view of the aforesaid facts of the case
and in view of the aforesaid ratio enumerated by
the Hon'ble Supreme Court in the aforesaid
decision, if the facts of the case on hand are
examined in its entirety, in that event, in my
considered opinion, the impugned FIR is nothing
but an sheer abuse of the process of law and if
the same is allowed to be continued, in that
invent, it would be nothing short of abuse of
process of law and travesty of justice. Hence,
this is a fit case, wherein the inherent power
under Section 482 of the CrPC should be exercised
for the purpose of quashing and setting aside the
impugned FIR. Therefore, the present application
deserves to be allowed.
16. In the result, the present application is allowed
partly. The complaint FIR being Criminal Case
No.573/2018 pending before the court of the
learned Additional Judicial Magistrate, Balasinoar
and all other consequential proceedings arising
out of said FIR are hereby quashed and set aside.
Rule is made absolute. Direct service is
permitted.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
