Hardiksinh Dilipsinh Zala vs State Of Gujarat
2025 Latest Caselaw 1778 Guj

Gujarat High Court

Hardiksinh Dilipsinh Zala vs State Of Gujarat on 4 August, 2025

                                                                                                       NEUTRAL CITATION




                             R/SCR.A/10499/2023                           ORDER DATED: 04/08/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                             R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10499 of 2023
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                                             HARDIKSINH DILIPSINH ZALA
                                                           Versus
                                              STATE OF GUJARAT & ANR.
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                       Appearance:
                       MS DIMPLE A DHAMANI(12061) for the Applicant(s) No. 1
                       MS NEHA J LADHANI(13334) for the Applicant(s) No. 1
                       MR MANAN MEHTA, APP for the Respondent(s) No. 1
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                          CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                                      Date : 04/08/2025
                                                       ORAL ORDER

1. RULE. Learned APP waives service of notice of rule on behalf of the respondent State.

2. By way of present petition under Article 226 of the Constitution of India read with Section 528 of the BNSS, the petitioner has prayed to quash and set aside the FIR being I-C.R. No.47 of 2018 registered with Limbdi Police Station, Surendranagar for the offence punishable under Section 408 of the IPC and all the consequential proceedings arising therefrom.

3. Brief facts of the case are that the complaint alleges that between 12 July 2017 and 22 September 2017, the accused, while serving as the acting principal (Acharya) of P.S.-Center School No. 7, Limbdi, misappropriated the complainant's salary for June and July 2017. The June salary (Rs. 39,432) and July salary (Rs. 40,940) a total of Rs. 80,372/- were never credited to the complainant's bank account. Instead, the accused retained them in the school's bank account and later withdrew them for personal use by 22 September 2017, committing an offence punishable under Section 406 of the IPC. The FIR also invokes

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Sections 506(2) and 114.

4. Learned advocate for the petitioners submits that the petition has no involvement in the alleged offence and has been falsely implicated. It is submitted that the complaint has been filed with an ulterior motive and does not disclose the commission of any offence. It is further submitted that the complainant is facing proceedings under Section 138 of the Negotiable Instruments Act and has been convicted by the learned Judicial Magistrate First Class, Limbdi, by an order dated 09.08.2019. The complainant has also preferred an appeal against the said order. With a view to take revenge, the complainant has filed the present complaint. Therefore, the present case is a fit example of the legal maxim "he who comes into equity must come with clean hands." The petitioner has no past criminal antecedents, and the complaint has also been filed belatedly. Hence, the present application deserves to be allowed.

5. The learned APP has strongly opposed the present application stating that the charge-sheet has been filed, and subsequent to the filing of the charge-sheet, the FSL report has been received. As per the report, it is clearly opined that the petitioner forged the signature of respondent No.2 and withdrew the two months' salary of respondent No.2. As far as the issue of delay is concerned, it is submitted that the complainant initially did not have any information regarding the incident. However, after obtaining the relevant information from HDFC Bank, it was discovered that the salary amount was not credited to the

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complainant's account. However, the same had been deposited into the school's HDFC Bank account. Using two cheques and by forging the complainant's signature, the petitioner withdrew the said amount. Therefore, a prima facie offence is clearly made out against the present petitioner. Hence, the present application deserves to be dismissed.

6. Having heard the learned advocates for the respective parties and having gone through the documents on record, it appears that the present complaint was initially filed under Section 408 of the Indian Penal Code. However, the charge-sheet has also been filed under Section 409 of the IPC, as the present applicant was serving as the Principal of the school, and respondent No.2-the complainant-was also a teacher serving in the same school. It is alleged in the complaint that the applicant, in his capacity as Principal of P.S.-Center School No. 7, Limbdi, failed to credit the salary amount of Rs. 80,372/-, payable to respondent No.2 for the months of June and July 2017, into the complainant's bank account. Instead, the said amount was deposited into the school's bank account. Subsequently, the applicant is alleged to have withdrawn the said amount on 22 nd September 2017 by issuing Cheque No. 000005 from the school's account maintained with HDFC Bank and misappropriated the amount for his personal use. It is further alleged that the applicant forged the signature on the said cheque. Thus, the offence falls within the purview of Section 409 of the IPC, in addition to Section 408.

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7. So far as the delay in compliant is concerned, it appears that the complaint filed by respondent No.2 on 29 th May 2018, the incident in question occurred between 12 th July 2017 and 12th September 2017. After obtaining relevant details and information, including through an RTI application on 11 th May 2018, the complainant filed the present complaint. Therefore, the allegation regarding delay in filing the complaint is not acceptable.

8. Though the offence of forgery was not initially made out and the FSL report was awaited, the said report has since been received, and it reveals that the offence of forgery is also made out against the present petitioner. Therefore, addition of relevant sections pertaining to forgery is under consideration, and a supplementary report is yet to be filed before the competent authority. This is not a simple case involving only Section 408 or Section 409 of the IPC. Serious allegations of forgery have also found against the petitioner during the investigation; therefore, further investigation against the petitioner is required to be conducted thoroughly. It is specifically alleged that the petitioner withdrew the amount by forging the signature of respondent No.2. As a teacher, the petitioner was expected to uphold a high moral standard as a teacher; however, he committed the alleged offence solely with the intention of recovering his personal dues from the complainant adopting such illegal way.

9. Even if, for the sake of argument, it is accepted that respondent No.2 was convicted under Section 138 of the

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Negotiable Instruments Act, such conviction occurred in the year 2019 and has no bearing on the events that transpired in 2017- 2018. Furthermore, the petitioner, in the capacity of Principal, is alleged to have entered into a private financial transaction, such as a hand loan, with respondent No.2 and, in an attempt to recover the alleged personal dues, misused his official position. Thus, prima facie, a cognizable offence is made out against the petitioner. The material collected during the investigation clearly indicates not only a breach of trust but also the commission of forgery, as supported by the findings of the FSL report. Accordingly, relevant sections pertaining to forgery are likely to be invoked against the petitioner. Learned advocate has emphasized upon character of complainant and argued based on equity, but equity is considered in civil matters. In criminal case, bad character is irrelevance. Herein, as prima facie, involvement found based on evidence collected during the investigation and FSL Report.

10. In view of the above, no case is made out to this Court exercise its discretion under Section 528 of the BNSS even otherwise the Court is not duty bound to hold the mini trial. In this regard the reference is made to the judgment of the Apex Court in the case of Supriya Jain v. State of Haryana, reported AIR 2023 SC(Criminal) 1101. In the case of Ramveer Upadhyay and Anr. vs. State of U.P. and Anr. reported in 2022 OnLine SC 484, it is observed and held by the Apex Court that the High Court, while exercising jurisdiction under Section 528 of the BNSS, would not ordinarily embark upon an enquiry into whether the evidence is reliable or not or whether there is

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reasonable possibility that the accusation would not be sustained and hold mini trial as charge-sheet is filed.

11. Further, criminal proceeding would have to proceed entirely based on the allegations made in a complaint or the evidence collected during the investigation. It is not justified to embark inquiry or to hold mini trial qua genuineness or credibility of the material collected during the investigation and Court cannot go into correctness or otherwise of the material collected by the prosecution. In this regard, reference is required to be made to the decision of the Hon'ble Apex Court in the case of Manik B. vs. Kadapala Sreyes Reddy & Ors. reported in 2023 Live Law 642 (3 Judges' Bench) as mini-trial is not permitted while exercising jurisdiction under Section of 528 of the BNSS.

12. This Court court deems it proper to refer to the judgment of the Hon'ble Apex Court in the case of Neeharika Infrastruecture Pvt. Ltd. vs. State of Maharshtra, reported in 2021 SCC Online SC 315 wherein, the Apex Court has observed that:

"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 528 BNSS/482 of 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 inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

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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;"

13. It is also appropriate to refer to the decision of the Hon'ble Supreme Court in the case of State of Haryana vs. Bhajan Lal reported in (1992) Supp (1) SCC 335 wherein it has been observed and held as under:

"(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, providing efficacious redress for the grievance of the aggrieved party;

(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."

14. Further, it is necessary to consider whether the power conferred by the High Court under section 528 of the BNSS warranted. It is true that the powers under Section 528 of the BNSS are very wide and the very plenitude of the power requires great caution in its exercise In this regard, this Court deems it fit to refer to the judgment of the Hon'ble Apex Court in the case of Central Bureau of Investigation v. Aryan Singh reported in

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2023 SCC OnLine SC 379. At the time of deciding quashing petition by this Court mini trial is not permissible. The Court has to consider whether a prima facie offence is made out or not. If a prima facie, offence is made out, then the Court should be conscious while exercising its power under Section 528 of the BNSS. Such power is to be exercised sparingly and only in cases where there is an abuse of the process of the Court or to otherwise secure the ends of justice.

15. Considering the aforesaid facts, the petition stands dismissed.

16. Observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial. Learned Trial Court shall have to decide the allegations levelled in the complaint on its own merits without being influenced by any of the observations made in the order. Rule is discharged. Direct service is permitted.

(HASMUKH D. SUTHAR,J) ALI