Gujarat High Court
Dave Kumudchandra Mahendrabhai vs State Of Gujarat on 4 April, 2025
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Reserved On : 12/03/2025
Pronounced On : 04/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 14933 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
√
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DAVE KUMUDCHANDRA MAHENDRABHAI & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. ARCHIT P JANI(7304) for the Applicant(s) No. 1,2
MR MANAN MAHETA, ADDL.PUBLIC PROSECUTOR for Respondent(s) No. 1
MR DHARMIK R BAROT(8785) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. By this application under Section 482 of the Code of
Criminal Procedure (for short "the Code"), the applicants seek
quashing of the FIR registered as CR No.I-61 of 2018 registered
with Vijapur Police Station, Mehsana for the offence punishable
under Sections 406, 420, 465, 467, 468 and 114 of the Indian
Penal Code and further proceedings arising thereof.
2. The brief facts of the case are as under :
2.1 It is alleged by the complainant who is Secretary of
Agriculture Produce Market Committee that there are total 127
shops in the APMC, Vijapur and out of those shops, some shops
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were given on lease to accused No.1 to 3. Said accused Nos.1 to
3 have without any right or title or without intimating the APMC,
straightaway sold the said shops by way of registered sale deeds
dated 17.04.2018 to accused Nos.4 and 5. Thus, the accused
persons have in collusion with each other have tried to grab the
shops belonging to the APMC, Vijapur. The complainant filed the
FIR in question against the accused persons. Hence, the present
petition.
3. Heard learned advocate Mr.Archit Jani appearing for the
petitioners, learned APP Mr.Manan Maheta appearing for the
respondent - State and learned advocate Mr.Dharmik Barot
appearing for respondent No.2.
4. Seeking quashment of the questioned FIR wherein initially
FIR was registered for the offence punishable under Sections
406, 420 and 114 of IPC and the offences punishable under
Sections 465, 467 and 468 of IPC have been subsequently added
against the petitioners, learned advocate for the petitioners
would submit that present petitioners are arraigned as accused
Nos.4 and 5 in the matter. He would further submit that the
petitioners are bonafide purchasers of the questioned shops
belonging to APMC. He would further submit that in APMC,
sub-market for vegetables, Vijapur, in total 127 shops exist,
which consists of 61 shops in 'A' division, 29 shops in 'B'
division, 18 shops in 'C' division and 18 shops in 'D' division.
Learned advocate Mr.Jani would submit that out of these shops,
petitioners have purchased Shop Nos.B-17 and B-18 from the
erstwhile owners. Therefore, looking to the very facts emerging
from the FIR, the petitioners have not committed any breach of
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trust or cheating. Learned advocate Mr.Jani would submit that
the essential ingredients of Sections 406, 420 and 114 of IPC are
not attracted. He would further submit that later on the offence
punishable under Sections 465, 467 and 468 of IPC are added in
the FIR in question. However, the essential ingredients of these
offences are also not attracted as the petitioners have purchased
the disputed shops from the erstwhile owners by executing
registered sale deed. He would submit that the petitioners had
no intention to defraud or cheat the first informant. He would
further submit that even it is not intention of the petitioners to
encroach upon the shops belonging to the APMC, Vijapur. He
would submit that civil suits are also filed before concerned
Courts against accused Nos.1 to 3 as well as the petitioners.
Learned Civil Courts have passed the orders in favour of the
APMC and cancelled all the sale transactions which indicates
that present petitioners are also cheated and became victim of
the cheating committed by the accused Nos.1 to 3. Learned
advocate Mr.Jani referred to the judgment of coordinate Bench of
this Court in case of Prakash Ramchandra Barot vs. State of
Gujarat - 2012 (1) GLR 449, to submit that in absence of
essential ingredients of offence under Sections 465, 467 and 468
of IPC, merely FIR and other material exposes the cognizable
offence would not debar the Court from quashing FIR. He
referred to para 25 to 32 of the judgment in support of his
submission and submitted that the view taken by the coordinate
Bench is pari passu applicable to the facts of the present case.
Para 25 to 32 reads as under :
"25. Taking into consideration the necessary ingredients
to constitute an offence of 'criminal breach of trust', no
case at all is made out by the first informant. If the
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dispute relates to the title of the land in question and if
two sides claim to be the owner, then there is no
question of any entrustment of the property or dominion
over the property. It is not even the case of the first
informant that the land in question was entrusted to the
accused persons and they had dominion over the land
and they have dishonestly misappropriated the same or
converted it to their own use.
26. In the case of Onkar Nath Mishra v/s. State (NCT of
Delhi), reported in (2008)2 SCC 561, a Bench of two
Judges of the Supreme Court observed that two distinct
parts were involved in the commission of the offence of
criminal breach of trust. The first part consists of the
creation of an obligation in relation to the property over
which dominion or control is acquired by the accused.
The second is the misappropriation or dealing with the
property dishonestly and contrary to the terms of the
obligation created. Therefore, in relation to the offence
under Section 405 IPC, the first ingredient that needs to
be established is "entrustment". In Common Cause v/s.
Union of India, reported in (1999)6 SCC 667, the
Supreme Court held that :-
"... A trust contemplated by Section 405 would arise
only when there is an entrustment of property or
dominion over property. There has, therefore, to be a
property belonging to someone which is entrusted to
the person accused of the offence under Section 405.
The entrustment of property creates a trust which is
only an obligation annexed to the ownership of the
property and arises out of a confidence reposed and
accepted by the owner."
27. Now I may come to Section 420 of IPC. Section 415
of IPC deals with 'cheating' and reads as follows:
"415. Cheating.--Whoever, by deceiving any person,
fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or to
consent that any person shallretain any property, or
intentionally induces the person so deceived to do or
omit to do anything which he would not do or omit if
he were not so deceived, and which act or omission
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causes or is likely to cause damage or harm to that
person in body, mind, reputation or property, is said to
'cheat'. Explanation.--A dishonest concealment of facts
is a deception within the meaning of this section."
28. It is plain from a bare reading of the Section that to
hold a person guilty of cheating, as defined in Section
415 of the IPC, it is necessary to show that at the time of
making the promise he had fraudulent or dishonest
intention to retain the property or to induce the person so
deceived to do some thing which he would not otherwise
do.
29. The ingredients required to constitute an offence of
cheating have been succinctly laid down in Ram Jas Vs.
State of U.P., reported in (1970)2 SCC 740 as follows:
"(i) there should be fraudulent or dishonest
inducement of a person by deceiving him;
(ii)(a) the person so deceived should be induced to
deliver any property to any person, or to consent that
any person shall retain any property; or (b) the person
so deceived should be intentionally induced to do or
omit to do anything which he would not do or omit if
he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission
should be one which causes or is likely to cause
damage or harm to the person induced in body, mind,
reputation or property."
30. Similar views were echoed in Medchl Chemicals &
Pharma (P) Ltd. v/s. Biological E. Ltd. & Ors., reported in
(2000)3 SCC 269, wherein it was observed that:
"In order to attract the provisions of Sections 418 and
420 the guilty intent, at the time of making the
promise is a requirement and an essential ingredient
thereto and subsequent failure to fulfill the promise by
itself would not attract the provisions of Section 418 or
Section 420. Mens rea is one of the essential
ingredients of the offence of cheating under Section
420. As a matter of fact Illustration (g) to Section 415
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makes the position clear enough to indicate that mere
failure to deliver in breach of an agreement would not
amount to cheating but is liable only to a civil action
for breach of contract...."
31. It is well settled that in order to constitute an
offence of cheating, it must be shown that the accused
had fraudulent or dishonest intention at the time of
making the representation or promise and such a
culpable intention right at the time of entering into an
agreement cannot be presumed merely from his failure to
keep the promise subsequently.
32. My prima facie examination satisfies me that the
averments in the FIR if assume to be true, do not make
out any offence under Sections 406, 420, 465, 467, 468,
471, 447, 186, 120B and 504 of IPC."
4.1 Another judgment relied upon by learned advocate Mr.Jani
is in case of Ishwarbhai Shankarbhai Patel vs. State of
Gujarat - 2025 GUJHC 14513 and more particularly para 18
thereof which reads as under :
"18. By catena of judicial pronouncements, it is well
settled that mens rea i.e. intention to defraud or the
dishonest intention must be present, and in the case of
cheating, it must be there from the very beginning or
inception. As observed by the Hon'ble Apex Court in the
aforesaid decision, 'with a view to clear a serious
misconception of law in the mind of the police as well as
the courts concerned, that if it is a case of the
complainant that offence of criminal breach of trust as
defined under Section 405 of IPC, punishable under
Section 406 of IPC, is committed by the accused, then in
the same breath, it cannot be said that the accused has
also committed the offence of cheating as defined and
explained in Section 415 of the IPC, punishable under
Section 402 of the IPC'. It is settled proposition of law
that every act of breach of trust may not be resulted in a
penal offence of criminal breach of trust unless there is
express evidence available on record, which clearly goes
on to show that there was manipulating act of fraudulent
misappropriation. An act of breach of trust involves a
civil wrong in respect of which, the person may seek his
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remedy for damages in civil courts but any breach of
trust with a mens rea, gives rise to a criminal
prosecution as well. Admittedly in the case on hand, at
the time of purchase of land, the applicants have taken
all precautions and before execution of the registered
sale deed, the applicants have verified the title and the
said fact is supported by the documents available on
record. Over and above that, it is well settled that in
order to constitute an offence of cheating, it must be
shown that the accused had fraudulent or dishonest
intention at the time of making the representation or
promise and such a culpable intention right at the time of
entering into an agreement cannot be presume merely
from his failure to keep the promise subsequently.
However if the facts of the present case are examined, in
that event, it would be found out that the applicants
have not given any promise to the respondent no.2 and
there was no transaction between them and thus, basic
and essential ingredients to constitute alleged offences
are missing in the present case qua the applicants."
4.2 Learned advocate Mr.Jani further submits that petitioners
have preferred Special Criminal Application No.7707 of 2018
before this Court seeking filing of the FIR against accused Nos.1
to 3 as they have been cheated. Learned advocate would submit
that said petition was allowed and necessary directions were
issued.
4.3 In nutshell, learned advocate Mr.Jani would submit that
the petitioners, for purchasing immovable property being
questioned in the FIR have taken all precaution and verified the
title of the property / shops and then purchased it by way of
executing the registered Sale Deeds. All these indicates that the
petitioners had neither committed any criminal breach of trust
nor have committed cheating or forgery or have fabricated the
documents. In line of above submissions, he would submit to
allow this petition and to quash the FIR in question.
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5. Per contra, learned advocate Mr.Dharmik Barot appearing
for respondent No.2 - complainant vehemently objected to grant
of the relief prayed in the petition and submits that co-accused
i.e. accused Nos.1 to 3 have also filed petition for quashing the
FIR but after arguing to some extent, they have withdrawn the
quashing petition. The role of the petitioners is on similar
footing. They, by creating sale deed have tried to embezzled the
shops belonging to APMC, Vijapur and therefore, he would
submit that prima facie offence of criminal breach of trust,
cheating and forgery are established. Learned advocate Mr.Barot
would further submit that the names of the petitioners are
specifically mentioned in the questioned FIR so also their role,
therefore, looking to that aspect prima facie ingredients of the
offence alleged in the questioned FIR are made out. Learned
advocate Mr.Barot submits that whether the petitioners have
cheated or have been cheated is a question of trial and can be
decided during the trial. At threshold, it cannot be believed that
the petitioners are also cheated, having executed sale deed. He
would submit that principle of 'let the buyer beware' defined in
the Transfer of Property Act indicates that before purchasing the
property belongs to and owns by APMC, Vijapur, the petitioners
were expected to search for the title of the property, but they
hand-in-glow with accused Nos.1 to 3, tried to take away shops
belonged to and owned by APMC, Vijapur. Learned advocate
Mr.Barot would further submit that the competent Civil Court
has believed that the sale deeds allegedly executed are forged
and fabricated and by such sale deeds title of the shops in
question was not transferred either in favour of the accused
Nos.1 to 3 or accused No.4 and 5 and therefore, he submits that
argument of petitioners that they are bonafide purchasers of the
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questioned shops is baseless and hollow and does not survive.
5.1 Upon above submissions, learned advocate Mr.Barot
submitted to dismiss this petition.
6. Learned APP Mr.Maheta adopting the argument of learned
advocate Mr.Barot would submit that accused Nos.1 to 3 have
withdrawn their quashing petitions. He would further submit
that while seeking quashment of the FIR, the petitioners who are
accused Nos.4 and 5 cannot seek bifurcation of their role from
role played by accused Nos.1 to 3. All accused hand-in-glow with
each other have tried to seize the shops owned by APMC,
Vijapur. In these circumstances, the fact does not attract that
the present case is rare case to exercise the inherent power
under Section 482 of Cr.P.C. and to quash the FIR. He would
submit that there are sufficient material available on record to
forward the petitioners for trial. Learned APP referred to the
judgment of Paramjeet Batra vs. State of Uttarakhand and
others - 2013 (11) SCC 673 in support of his argument. Upon
this argument, learned APP would submit to dismiss this
petition.
7. I have heard learned advocates for both sides and I have
also perused the record.
8. It is undisputed that initially FIR was lodged for the offence
under Sections 406 and 420 of Indian Penal Code against the
petitioners as well as other accused. The FIR was lodged on
22.07.2018 and soon thereafter on 09.08.2018, the petitioners
have filed the petition for quashing the FIR. On 10.08.2018, the
coordinate Bench of this Court has passed order that no coercive
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action shall be taken against the present petitioners, but
permitted the investigating officer to proceed further with
investigation in accordance with law. The investigation has been
carried out and during the investigation, offence under Sections
465, 467 and 468 of IPC are also added.
9. Before appreciating the rival contentions raised by the
learned advocates for both sides, let go through the contents of
the FIR as under :
"My name is Rameshbhai Somabhai Patel, age 51
years, occupation - service, residing at Ladol, 1,
Shaktinagar Society, Ransipur Road, Taluka
Vijapur, Mob. No. 9979929212.
Having come personally, I declare and dictate the
facts of my complaint that I reside at the above
mentioned address with my family and I perform duty
as the Secretary in Agricultural Produce Marketing
Committee, Vijapur. Patel Ramanbhai Dhulabhai is the
President of this Agricultural Produce Marketing
Committee, Vijapur and Chaudhari Kanubhai Dahyabhai
is the Vice Chairman. I manage the entire affairs of this
Agricultural Produce Marketing Committee.
This, Agricultural Produce Marketing Committee,
Vijapur owned total 127 shops in Vegetable Sub Market
Yard, which consist of 61 shops in A - Division, 29 shops
in B - Division and 19 shops in C - Division and 18
shops in D - Division. All these shops are under
possession of the Agricultural Produce Marketing
Committee. Out of the said shops, the organization
allotted small retail shops located in B - Division having
Shop No. B-17 and B-18 to Dave Hemendrabhai
Arvindbhai, R/a. Vijapur, 12, Soham Bungalows, Taluka
Vijapur on monthly rental basis after taking non-
refundable deposit. Shop no. C-15 of Senti Shops
Department has been allotted to Patel Nikunjkumar
Ashokbhai, R/a. Vijapur, 46 Shyam Vihar Society,
Taluka Vijapur on monthly rental basis after taking non-
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refundable deposit. Shop C-16 has been allotted to Patel
Niyatkumar Ashokbhai, R/a. Vijapur, 46 Syamvihar
Society, Taluka Vijapur, on monthly rental basis after
taking non-refundable deposit. They were the tenant
occupants of the above mentioned four shops of
Agricultural Produce Marketing Committee and they were
paying monthly rent regularly to the Agricultural Produce
Marketing Committee for which receipts were also being
issued. I have come to know before about one month that
these four shops of the Agricultural Produce Marketing
Committee alloted on non-refundable deposit have been
sold by them directly. Therefore, I sought for the copies
of sale deed of above mentioned four shops from the Sub
Registrar Office, Vijapur and on receiving the copies, it
was found that accused Hemendrabhai Arvindbhai Dave
sold his shops no. B-17 and B-18 on 20-4-18 and
accused Patel Nikunjkumar Ashokbhai and Patel
Niyatkumar Ashokbhai sold the shops No. C-15 and C-
16 of our organization, which were under their
possession, on 17-04-18 to Dave Kumudchandra
Mahendrabhai and Padmaben Mahendrabhai Dave, both
residing at Gandhinagar, by way of executing bogus sale
deed at Vijapur Sub Registrar Office.
Therefore, though the above mentioned three
accused persons were not the owners of the said shops
and though they were aware that the Agricultural
Produce Marketing Committee was the owner of the said
shops, bogus sale deed was executed in collusion with
Dave Kumudchandra Mahendrabhai and Dave
Padmaben Mahedrabhai, residents of Gandhinagar and
the Sub Registrar of Vijapur and thereby, they have
committed fraud and cheating with the Agricultural
Produce Marketing Committee. Hence, this is my
complaint to take legal action against all these six
accused persons and who ever are found during course
of investigation. Copies of sale deed as well as village
form No. 7 etc. are enclosed herewith.
The facts of my complaint are true and correct
as dictated by me."
10. The fact which is discernible from the FIR and other
documents on record indicates that accused Nos.1 to 3 who were
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occupiers of shops belonging to APMC have sold out the shops to
accused Nos.4 and 5 by executing the registered Sale Deed. The
case of the petitioners hinges on the ground that they are
bonafide purchasers and they have purchased the disputed
shops after paying the sale consideration. The civil suits were
also filed by APMC seeking cancellation of the sale deed. It is
submitted during the arguments that civil suits are allowed by
the jurisdictional Civil Court and sale deeds in question are set
aside by the competent Civil Court. Said aspect is also reflecting
from the report tendered by the I.O. Now, in these factual
background, if we examine two sale deeds, it is stated that the
shops in question sold to the petitioners were belonged to and
owned by accused Nos.1 to 3 and upon such statement, accused
Nos.4 and 5 have purchased the property. The principle of 'let
the buyer beware' defined in the Transfer of Properties Act as
well as Section 55 thereof indicates that person should ascertain
about the title before purchasing the immovable property. In the
present case, APMC has never sold the questioned shops to
accused Nos.1 to 3 or any party. Title and ownership of
questioned shops were not passed over to accused Nos.1 to 3.
They were just person in possession of the questioned shops.
The title of the shops remains with APMC. The petitioners -
accused Nos.4 and 5 who claimed to be bonafide purchasers are
expected to verify the title. It seems that petitioners have never
searched and examined about the title of the questioned shops
but they tried to seize the questioned shops by executing sale
deeds. A person of ordinary prudence is expected to have verified
the title before purchasing the immovable property. Learned
advocate Mr.Jani who has argued at length could not point out
that what kind of procedure petitioners have undertaken to
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search and verify about the title of the questioned shops. He just
hinges upon execution of the registered sale deed to claim that
they have not participated in commission of crime. However, he
has not placed on record any material which demonstrates that
prior to execution of the sale deed, the petitioners have searched
and verified the title of the questioned shops to establish that
petitioners are bonafide purchasers.
11. It could also be noticed that all questioned shops are
situated within APMC. The person of ordinary prudence knows
that this immovable property belongs to APMC, therefore, before
purchasing the property, he is expected to verify from the APMC
about the title of the questioned shops. Again learned advocate
Mr.Jani failed to point out that how and in which way the
petitioners who are claiming bonafide purchasers have searched
and verified the title of the shops in question. Prima facie, it is
established that, by systematic modus operandi, accused Nos.1
to 3 who are possessors of questioned shops, in connivance with
accused Nos.4 and 5 (petitioners) attempted to part away title of
questioned shops by dishonestly executing fraudulent
documents. The act itself prima facie attracts essence of alleged
cognizable offence.
12. The sine qua non for the applicability of the Section 482 of
Cr.P.C. is that the allegations levelled in the complaint / FIR or
the accusation made against the accused as given face value and
taken as true, does not disclose cognizable offence under the
Indian Penal Code or any other penal statute. Otherwise, the
FIR/complaint or criminal proceedings shall be proceeded.
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13. It was also argued that in case on hand the dispute is of
the civil nature. APMC has also filed civil suits for cancellation of
the sale deeds and ultimately, APMC in its plaint succeed in
getting the sale deeds set aside and therefore essentially the FIR
is of civil nature. In many cases, the root of the criminal
proceeding is civil contract and the stand generally taken in
defense is that the dispute being a civil nature, no criminal
prosecution lies. The Hon'ble Apex Court in case of Medchl
Chemicals and Pharma (P) Ltd. vs. Biological E Limited and
others - 2000 (3) SCC 269, explained the legal position in the
following manner :
"... whether or not the allegations in the complaint are
otherwise correct has to be decided on the basis of the
evidence to be led at the trial in the complaint case but
simple because of the fact that there is a remedy
provided for breach of contract, that does not by itself
clothe the court to come to a conclusion that civil remedy
is the only remedy available ... Both criminal law and
civil law remedy can be pursued in divers situations. As
a matter of fact they are not mutually exclusive but
clearly co-extensive and essentially differ in their content
and consequence. The object of criminal law is to punish
an offender who commits an offence against a person,
property or the State for which the accused, on proof of
the offence, is deprived of his liberty and in some cases
even his life. This does not, however, affect civil
remedies at all for suing the wrongdoer in cases like
arson, accidents etc. It is anathema to suppose that
when a civil remedy is available, a criminal prosecution
is completely barred . The two types of actions are quite
different in content, scope and impost."
14. In Paramjeet Batra (supra), the Hon'ble Apex Court has
also cleared the position for exercising jurisdiction under Section
482 of Cr.P.C. in allegation where civil transaction may also have
criminal texture, which reads as under :
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"12. While exercising its jurisdiction under Section 482
of the Code the High Court has to be cautious. This
power is to be used sparingly and only for the purpose of
preventing abuse of the process of any court or otherwise
to secure ends of justice. Whether a complaint discloses
a criminal offence or not depends upon the nature of
facts alleged therein. Whether essential ingredients of
criminal offence are present or not has to be judged by
the High Court. A complaint disclosing civil transactions
may also have a criminal texture. But the High Court
must see whether a dispute which is essentially of a civil
nature is given a cloak of criminal offence. In such a
situation, if a civil remedy is available and is, in fact,
adopted as has happened in this case, the High Court
should not hesitate to quash criminal proceedings to
prevent abuse of process of court."
15. Coming to the facts of the case, it is manifestly clear that
the shops in question were not of the ownership of accused
Nos.1 to 3. Though it was in possession of accused Nos.1 to 3,
they have sold and passed ownership of it to accused Nos.4 and
5. Before executing the sale deed, accused Nos.4 and 5 have not
verified the title of the APMC shops. Since shops are situated
within APMC, it is expected from the accused Nos.4 and 5 to
search and verify the title of APMC shops.
16. In the present case, APMC shops are fraudulently
transferred by accused Nos.1 to 3 in favour of accused Nos.4 and
5. APMC shops are delivered by accused Nos.1 to 3 to accused
Nos.4 and 5 knowing fully well that questioned shops belongs to
APMC, accused Nos.1 to 3 who are hand-in-glow with accused
Nos.4 and 5 prepared sale deed and transferred the title of
questioned shops which never exist in favour of either of the
accused. These documents prima facie indicates that they are
forged documents giving colour of genuine document by getting
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it registered. The competent Civil Court believed that documents
in question are forged and fabricated documents and does not
transfer title from accused Nos.1 to 3 to accused Nos.4 and 5.
The document which is false by itself has been registered with
the registering authority and had been used as genuine one for
the purpose of changing title of the shops in question. In
nutshell, accused Nos.1 to 3 who have withdrawn their quashing
petitions were hand-in-glow with accused Nos.4 and 5
(petitioners) and by creating forged documents; tried to change
the title of the questioned shops. Prima facie, the essential
ingredients of alleged offence are attracted. Accused have
attempted to take dominion over shops of APMC, dishonestly
and fraudulently by creating forged sale deed. The ownership of
APMC over the shops have been tried to be taken over by the
accused.
17. The Hon'ble Supreme Court in number of cases laid down
the scope and ambit of High Court's inherent power under
Section 482 of Cr.P.C. The inherent power under Section 482 of
Cr.P.C. though wide have to be exercised sparingly, carefully and
with great caution and only when such exercise is justified by
test specifically laid down in this section itself. Authority of
Court exists for advancement of justice. If any abuse of process
leading to injustice and brought to the notice of the Court then
the Court would be justified in preventing injustice by invoking
inherent power but the power possessed by the High Court is
very wide requires more caution in its exercise. The interference
must be on sound principle and the inherent power should not
be exercised to stifle the legitimate prosecution. High Court
should normally refrain from giving prima facie reason where all
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the facts are incomplete and hazy more so when necessary
material are yet to be collected (See : Asmathunnisa Vs. State
of Andhra Pradesh - AIR 2011 SC 1905; Joseph vs. State
2011 (7) SCC 59).
18. It is worth to refer Preeti Gupta vs. State of Jharkhand
and another - 2010 (7) SCC 667, wherein it is held by Hon'ble
Apex Court as under :
"18. The powers possessed by the High Court under
section 482 of the Code are very wide and the very
plenitude of the power requires great caution in its
exercise. The court must be careful to see that its
decision in exercise of this power is based on sound
principles. The inherent power should not be exercised to
stifle a legitimate prosecution but court's failing to use
the power for advancement of justice can also lead to
grave injustice.
19. The High Court should normally refrain from giving
a prima facie decision in a case where all the facts are
incomplete and hazy; more so, when the evidence has
not been collected and produced before the court and the
issues involved, whether factual or legal, are of such
magnitude that they cannot be seen in their true
perspective without sufficient material. Of course, no
hard and fast rule can be laid down in regard to cases in
which the High Court will exercise its extraordinary
jurisdiction of quashing the proceedings at any stage.
20. This court had occasion to examine the legal position
in a large number of cases. In R.P. Kapur v. State of
Punjab AIR 1960 SC 866, this court summarized some
categories of cases where inherent power can and
should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar
against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or
complaint taken at their face value and accepted in their
entirety do not constitute the offence alleged;
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(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."
19. Worthy assistance can also be taken from the judgment of
Hon'ble Supreme Court in case of Neeharika Infrastructure
Private Limited vs. State of Maharashtra and others - (2021)
19 SCC 401.
20. In view of above, according to this Court, the petitioners
have failed to point out that allowing the prosecution to proceed
further in the matter would be absurd process and the
allegations in the FIR and material collected during the
investigation indicates that sufficient material is available to file
chargesheet against the accused for the offences alleged in the
FIR.
21. Before parting with the order, let go through the
judgments relied upon by learned advocate Mr.Jani, in case of
Prakash Ramchandra Barot (supra), it was a dispute of title
between two private persons. Both parties were claiming title
over the questioned land and the civil suits were pending
between private parties. In background of these aspects, the
coordinate Bench of this Court believed non-existence of the
essential ingredients of the offence under Section 464, 465, 467,
468 and 471 of IPC and find a case fit to exercise inherent power
under Section 482 of Cr.P.C. In case of Ishwarbhai Shankarbhai
Patel (supra), it was a case of breach of contract where the
coordinate Bench after referring to series judgments believed
that the purchasers before purchasing immovable property have
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taken all necessary precaution and held that the prosecution
had prima facie failed to prove essential ingredients of cheating.
In fact situation of the case, both judgments would not render
any help to the present petitioners.
22. Applying the principle laid down hereinabove in wake of
reasons slated supra, I am of the opinion that present petition
deserves no consideration. It is bereft of merit and requires to be
dismissed and accordingly, it is dismissed. Rule is discharged.
Interim relief, if any, to discontinue.
(J. C. DOSHI, J)
GAURAV J THAKER
