Gujarat High Court
Soniya Nanubhai Gajera vs State Of Gujarat on 2 January, 2025
NEUTRAL CITATION
R/CR.MA/3794/2020 ORDER DATED: 02/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 3794 of 2020
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SONIYA NANUBHAI GAJERA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MONTUBHAI G PATEL(9299) for the Applicant(s) No. 1
MR AMIT N CHAUDHARY(5599) for the Applicant(s) No. 1
MR VICKY B MEHTA(5422) for the Respondent(s) No. 2
MR. SOHAM JOSHI, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 02/01/2025
ORAL ORDER
1. By this application under section 482 of the Code of
Criminal Procedure,1973, the applicant seeks to invoke the
inherent powers of this Court praying for quashing of the first
information report being C.R. No.I-37 of 2019 registered before
the Satlasana Police Station at Ahmedabad for the offence
punishable under sections 406, 420, 465 and 114 of IPC.
2. The facts in brief leading to the filing of the present
application are that the respondent No.2-original complainant
lodged an FIR being C.R. No.I-173 of 2018 for the offence
punishable under Sections 406, 409, 420, 120B, 201 of IPC and
Section 3 of the Gujarat Protection of Interest of Depositors Act
against the accused persons named in the FIR, inter alia,
alleging therein that the accused named in the complaint, in
collusion with each other, hatched a criminal conspiracy, to
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dupe the complainant as well as the other customers by
inducing them they will get the double profit on short term
investment in their company, and thereby have duped him for
a heavy sum to the tune of Rs.4,18,000/- as well as the other
customers to the tune of Rs.18,90,000, aggregating to
Rs.23,08,000/-, and thereby committed a criminal breach of
trust and cheated them of their hard-earner money. Hence, the
impugned FIR.
3. Learned advocate Mr. Amit Chaudhary appearing for the
applicant submits that the first information report came to be
filed against three accused persons named therein as well as
against other unknown persons. The applicant-accused is a
lady, and her name has not been mentioned in the FIR. At the
time of the incident, she was 22 years old. Learned advocate
Mr. Chaudhary further submits that the applicant was working
as the cashier in the Company and drawing the monthly salary
of Rs.7,000/-. She is not directly or indirectly involved in the
commission of the offence. Thus, the applicant does not have
any connection or concern with Dream Specific Services,
except the relation of employer and employee. Learned
advocate Mr. Chaudhary also submits that the applicant has
not got any monetary benefits and has not received a single
penny in her account from the alleged amount a mentioned in
the FIR. She has already left the job. He further submits that
she was not at all aware about the malpractice going on in the
said Company. Learned advocate Mr. Chaudhary further
submits that there were in all six female employees working in
the said Company, but except the present applicant, none of
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the other female employees have been arraigned as the
accused. The present applicant has been implicated in the
present offence only on the basis of the fact that she was
having relationship with the accused No.1. There is no
allegation in the FIR against the present applicant. Learned
advocate Mr. Chaudhary further submits that although the
present applicant was not named in the FIR, the police went to
the house of the applicant to arrest her, and therefore,
apprehending her arrest, the applicant preferred anticipatory
bail application before the trial court, which was not
entertained by the concerned trial court. Then, the applicant
approached this Court, and a Coordinate Bench of this Court
granted anticipatory bail to the applicant, and since then she is
at large. Learned advocate Mr. Chaudhary also submits that
even if the entire case of the first informant is accepted
as true, none of the ingredients to constitute the offence under
Sections 406, 409 and 420 are spelt out and, therefore, the
continuation of the criminal proceedings against the applicant-
accused would be nothing, but an abuse of the process of law.
He, therefore. prays that the impugned FIR be quashed and set
aside.
4. On the other hand, this application has been vehemently
opposed by Mr. Soham Joshi, the learned Additional Public
Prosecutor appearing for the respondent - State of Gujarat.
Learned APP Mr. Joshi would submit that the allegations
levelled in the FIR are quite serious in nature against the
accused persons named therein as well as who are found out
during the course of investigation, wherein the present
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applicant is one of the accused whose name and specific role
has been found out during the course of investigation. The
present applicant was not merely an employee of the
Company, but she has actively participated in the commission
of the crime, and she also interacted with the
victims/witnesses which is evident from the statements of the
witnesses. He submits that solely on the ground that the
present applicant was merely an employee, cannot be made a
ground for quashing of the FIR as the trial is going on and the
law would take its own course at the end of the trial. Under the
circumstances, learned APP Mr. Joshi prays that, therefore, at
this stage, the First Information Report should not be
quashed and the trial should be permitted to proceed further.
Hence, the present application deserved to be rejected.
5. The present application has also been opposed by
learned advocate Mr. Vicky Mehta appearing for the
respondent No.2-original complainant. He submits that he is
adopting all the arguments canvassed by the learned APP with
the further contention that from the material collected by the
investigating officer during the course of investigation, it
appears that the present applicant has actively participated in
the commission of the crime, and therefore, the present
application deserved to be rejected.
6. Having heard the learned counsel appearing for the
parties and having considered the materials on record, the
only question that falls for my consideration is whether I should
quash the complaint.
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7. The allegations levelled in the charge-sheet clearly make
out a case of cognizable offences by the applicant. The mere
fact that the allegations also make out existence of civil
dispute would not be a ground to quash the criminal
proceedings when the allegations clearly make out commission
of cognizable offences by the applicant. The correctness of
allegations will be examined by the learned trial court after
giving an opportunity to the parties to lead evidence.
8. In State of Haryana versus Bhajan Lal, (1992) Supp 1
SCC 335, the Hon'ble Supreme Court discussed the law relating
to exercise of exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of the Code, and
gave the following categories of cases 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 was clarified that it may not be
possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds 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 FIR 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
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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
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, 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."
9. After mentioning the aforesaid categories, the Hon'ble
Supreme Court added a note of caution to the effect that: -
"the power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and
that too in the rarest of rare cases; that the court will not
be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations
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made in the FIR or the complaint and that the
extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its
whim or caprice."
10. In CBI versus Aryan Singh, 2023 SCC OnLine SC 379, the
Hon'ble Supreme Court held that: -
"10. From the impugned common judgment and order
passed by the High Court, it appears that the High Court
has dealt with the proceedings before it, as if, the High
Court was conducting a mini trial and/or the High Court
was considering the applications against the judgment
and order passed by the learned Trial Court on
conclusion of trial. As per the cardinal principle of law, at
the stage of discharge and/or quashing of the criminal
proceedings, while exercising the powers under Section
482 Cr. P.C., the Court is not required to conduct the mini
trial. The High Court in the common impugned judgment
and order has observed that the charges against the
accused are not proved. This is not the stage where the
prosecution/investigating agency is/are required to prove
the charges. The charges are required to be proved
during the trial on the basis of the evidence led by the
prosecution/investigating agency. Therefore, the High
Court has materially erred in going in detail in the
allegations and the material collected during the course
of the investigation against the accused, at this stage. At
the stage of discharge and/or while exercising the powers
under Section 482 Cr. P.C., the Court has a very limited
jurisdiction and is required to consider "whether any
sufficient material is available to proceed further against
the accused for which the accused is required to be tried
or not".
11. Therefore, the submission of the learned counsel for the
applicant that the allegations leveled in the FIR are false,
cannot be examined by this Court while deciding an application
under Section 482 Cr.P.C.
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12. So far as the averment made in the application that some
elements of civil dispute are there in existence, the allegations
against the applicant in the charge-sheet are that the applicant
has committed the offences of criminal breach of trust and
cheating against the informant.
13. In Pratibha v. Rameshwari Devi, (2007) 12 SCC 369, the
Hon'ble Supreme Court held that "it is well settled that criminal
and civil proceedings are separate and independent and the
pendency of a civil proceeding cannot bring to an end a
criminal proceeding even if they arise out of the same set of
facts."
14. In Mahesh Chaudhary v. State of Rajasthan, (2009) 4 SCC
439, the Hon'ble Supreme Court held that: -
"11. The principle providing for exercise of the power by
a High Court under Section 482 of the Code of Criminal
Procedure to quash a criminal proceeding is well known.
The Court shall ordinarily exercise the said jurisdiction,
inter alia, in the event the allegations contained in the
FIR or the complaint petition even if on face value are
taken to be correct in their entirety, does not disclose
commission of an offence.
12. It is also well settled that save and except in very
exceptional circumstances, the Court would not look to
any document relied upon by the accused in support of
his defence. Although allegations contained in the
complaint petition may disclose a civil dispute, the same
by itself may not be a ground to hold that the criminal
proceedings should not be allowed to continue. For the
purpose of exercising its jurisdiction, the superior courts
are also required to consider as to whether the
allegations made in the FIR or the complaint petition
fulfill the ingredients of the offences alleged against the
accused." (Emphasis supplied)
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15. In Priti Saraf v. State (NCT of Delhi), (2021) 16 SCC 142, it
was held that: -
"31. In the instant case, on a careful reading of the
complaint/FIR/charge-sheet, in our view, it cannot be said
that the complaint does not disclose the commission of
an offence. The ingredients of the offences under
Sections 406 and 420 IPC cannot be said to be absent on
the basis of the allegations in the complaint/FIR/charge-
sheet. We would like to add that whether the allegations
in the complaint are otherwise correct or not, has to be
decided on the basis of the evidence to be led during the
course of trial. Simply because there is a remedy
provided for breach of contract or arbitral proceedings
initiated at the instance of the appellants, that does not
by itself clothe the court to come to a conclusion that civil
remedy is the only remedy, and the initiation of criminal
proceedings, in any manner, will be an abuse of the
process of the court for exercising inherent powers of the
High Court under Section 482CrPC for quashing such
proceedings."
16. Moreover, the allegations in the FIR/charge-sheet make
out commission of cognizable offences of criminal breach of
trust and cheating by the applicant, which allegations have
been established by the material collected during investigation
and, accordingly, a charge-sheet has been filed against the
applicant, I am of the considered view that as per the law laid
down by the Hon'ble Supreme Court in Pratibha, Mahesh
Chaudhary and Priti Saraf (Supra), the charge-sheet and the
criminal proceedings against the applicant cannot be quashed
merely because the allegations may also disclose a civil
dispute between the parties.
17. In view of the aforesaid discussion, there appears to be
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no illegality in the charge-sheet.
18. In the result, the application under Section 482 Cr.P.C.
lacks merit and the same is hereby dismissed. Notice is
discharged.
(DIVYESH A. JOSHI,J)
VAHID
