Gujarat High Court
Amitbhai Rameshbhai Bhanvadiya vs State Of Gujarat on 7 January, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (FOR CONSENT QUASHING) NO.
16871 of 2024
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AMITBHAI RAMESHBHAI BHANVADIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR LAXMANSINH M ZALA(5787) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR. PRANAV DHAGAT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 07/01/2025
ORAL ORDER
1. The present petition is filed for seeking the
following reliefs:
"a. Your Lordships may be pleased to admit and allow this
application.
b. Your Lordships may be pleased to pass an order of
quashing the impugned FIR at Annexure-A which was
registered by the respondent No.2 with Gandhigram 2
University Police Station, Dist: Rajkot City, vide CR No.
11208003241226 of 2024 for the offence punishable u/s 352,
351 of The Bhartiya Nyaya Sanhita, 2023 and u/s 5, 40 and
42 of The Gujarat Money Lenders Act on 05.12.2024 and
entire proceedings arising out of from the said FIR at
ANNEX-A;
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c. Any other and further order/relief (s) which this Hon'ble
Court deems fit in the interest of justice."
2. Learned advocate Mr. Mohitsinh Jadeja submits that
he has instructions to appear for and on behalf of the
original complainant - respondent No.2 and he will file
vakalatnama on his behalf. The Registry to accept the
same.
3. Heard learned advocates.
4. Mr. Laxmansinh M. Zala, learned advocate for the
petitioner has submitted that the petitioner is having
licence under the The Gujarat Money Lenders Act, 2011
and now the matter is amicably settled between the
parties and affidavit to this effect is also filed by the
complainant, who is present before this Court and has
submitted that the matter is settled between the parties.
He has submitted that this petition may be considered
and the impugned FIR may be quashed, qua the
petitioner.
5. Learned advocate Mr.Jadeja for the original
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complainant has submitted that the settlement is arrived
by and between the complainant and the petitioner and
the complainant have no objection if the impugned FIR
is quashed, qua the petitioner only. The complainant is
present before this Court.
6. Learned APP for the State has vehemently opposed
this petition. He has submitted that no interference is
required to be called for this Court at this stage as
prima facie case is made out.
7.1 I have considered the averments made in this
petition, as well as the submissions made at the bar,
and have interacted with the complainant, who is
personally present before this Court. It transpires that
the offence is registered under the provisions of Sections
352 and 351 of The Bhartiya Nyaya Sanhita, 2023, and
under Sections 5, 40, and 42 of The Gujarat Money
Lenders Act on 05.12.2024, as follows:
"351. (1) Whoever threatens another by any means, with
any injury to his person, reputation or property, or to the
person or reputation of any one in whom that person is
interested, with intent to cause alarm to that person, or to
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cause that person to do any act which he is not legally
bound to do, or to omit to do any act which that person is
legally entitled to do, as the means of avoiding the
execution of such threat, commits criminal intimidation.
Explanation.--A threat to injure the reputation of any
deceased person in whom the person threatened is
interested, is within this section.
Illustration.
A, for the purpose of inducing B to resist from prosecuting
a civil suit, threatens to burn B's house. A is guilty of
criminal intimidation.
(2) Whoever commits the offence of criminal intimidation
shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or
with both.
(3) Whoever commits the offence of criminal intimidation by
threatening to cause death or grievous hurt, or to cause the
destruction of any property by fire, or to cause an offence
punishable with death or imprisonment for life, or with
imprisonment for a term which may extend to seven years,
or to impute unchastity to a woman, shall be punished with
imprisonment of either description for a term which may
extend to seven years, or with fine, or with both.
(4) Whoever commits the offence of criminal intimidation by
an anonymous communication, or having taken precaution to
conceal the name or abode of the person from whom the
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threat comes, shall be punished with imprisonment of either
description for a term which may extend to two years, in
addition to the punishment provided for the offence under
sub-section (1).
352. Whoever intentionally insults in any manner, and
thereby gives provocation to any person, intending or
knowing it to be likely that such provocation will cause him
to break the public peace, or to commit any other offence,
shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or
with both.
5. No business of money-lending except registration.
(1) No Money-Lender shall commence or carry on the
business of money-lending except in the area for which he
has been granted a registration and except in accordance
with the terms and conditions of such registration.
(2) Non-banking finance companies registered under the
provisions of the Reserve Bank of India Act, 1934, (2 of
1934) with the Reserve Bank of India shall be deemed to
have been registered for the purposes of this Act and they
shall intimate to the concerned Registrar about their such
registration with the Reserve Bank of India in the
prescribed proforma.
40. Penalty for molestation.
- Whoever molests or abets the molestation of a debtor for
the recovery' of a loan due by him to a Money-Lender shall,
on conviction, be punished with imprisonment for a term
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which may extend to two years and with fine which may
extend to twenty-five thousand rupees :
Provided that in absence of the special and adequate
reasons to the contrary to be mentioned in the judgements
of the Court -
(i) for the first offence, such imprisonment shall not be less
than six months and such fine shall not be less than ten
thousand rupees;
(ii) for the second and subsequent offences, such
imprisonment shall not be less than one year and such fine
shall not be less than twenty-five thousand rupees.
Explanation. - For the purposes of this section, a person
who, with intent to cause another person to abstain from
doing any act which he has a right to do or to do any act
which he has a right to abstain from doing-
(a) obstructs or uses violence to or intimidates such other
person, or
(b) persistently follows such other person from place to place
or interferes with any property owned or used by him or
deprives him of, or hinders him in the use thereof, or
(c) loiters near a house or other place where such other
person resides or works, or carries on business, or happens
to be, or does any act calculated to annoy or intimidate
such other person, shall be deemed to molest such other
person :
Provided that a person who goes to such house or place in
order merely to obtain or communicate information shall not
be deemed to molest.
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42. Penalty for contravention of section 5,19,33 or 38.
- Whoever-
(a) carries on the business of money-lending in any area
without registration in contravention of section 5; or
(b) fails to produce any record or document in compliance
with any requirement made under sub-section (1) of section
19 or knowingly produces any false record or document; or
(c) obstructs any officer making an entry, inquiry, search,
seizure or entrance under sub-section (2) of section 19: or
(d) demands, charges or receives from a debtor the interest
at higher rate in contravention of sub-section (3) of section
33; or
(e) accepts any promissory note, acknowledgement bond or
other writing or document or any instrument in
contravention of section 38; or
(f) tempers with debtors' record or transaction or makes a
wrongful or false entry therein or tempers or mutilates or
destroys pawn or property -
shall on conviction, be punished with imprisonment for a
term which may extend to two years and with fine which
may extend to twenty-five thousand rupees :
Provided that in absence of the special and adequate reason
to the contrary to be mentioned in the judgements of the
Court -
(i) for the first offence, such imprisonment shall not be less
than three months and such fine shall not be less than five
thousand rupees,
(ii) for the second and subsequent offences, such
imprisonment shall not be less than six months and such
fine shall not be less than ten thousand rupees."
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7.2 Furthermore, it is a requirement under the law that
even a person holding a licence under the Gujarat
Money Lenders Act, 2011, the person cannot charge
interest on the amount beyond the permissible rate,
which is fixed by the Reserve Bank of India. In the
present case, as per the allegations made in the FIR,
after holding a licence for money lending, interest is
allegedly charged at the rate of 3% per month. Such
activity is now causing a lot of harassment to the poor
and needy persons, particularly in the State i.e.
Saurashtra region of the State. Due to such incidents,
the entire family of the victim is ruined, as any family
member who borrows money is subjected to tortuous
interest rates, forcing them to borrow more from others,
thus entering a vicious cycle.
7.3 It is also important to note that such incidents are
reported in the newspapers, and many cases are coming
before this Court where the person, or the entire family
of the victim, has to commit suicide due to burden of
payment of such amount of interest and after paying
substantial amount by way of interest. The persons
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involved in such financing are often either having strong
background or have criminal antecedents or history, or
are connected to politicians or law enforcement agencies.
Therefore, due to the connivance of responsible
individuals, concrete actions could not have been taken
in such incidents, where society at large suffers due to
the illegal activities carried out by such financiers. Even
in the present case, though there is a licence under The
Gujarat Money Lenders Act, there is a clear violation of
the terms of the licence by charging exorbitant interest.
Furthermore, in many cases, even when individuals are
not holding a licence under The Gujarat Money Lenders
Act, they still charge interest at rates ranging from 3%
per month to 15% per month. In the present case, the
rate of interest is allegedly charged at 3% per month.
Merely because the complainant has agreed to settle the
dispute is not a good ground for quashing of the presetn
FIR. Additionally, it cannot be said that such offences
are not compoundable under the law.
7.4 Furthermore, it is useful to refer to the decision of
the Hon'ble Apex Court in its recent judgment in the
case of K. Bharthi Devi and Another vs. State of
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Telangana and Another, reported in MANU/SC/1083/2024,
particularly in paragraphs 30 and 32, wherein, the scope
of compromise and quashing of complaint has been
discussed. These paragraphs are as follows:
"30. Subsequently, a 2 Judge Bench of this Court in the
case of Narinder Singh and others (supra), after considering
the earlier pronouncements of this Court, culled out the
position thus:
"29. In view of the aforesaid discussion, we sum up and lay
down the following principles by which the High Court
would be guided in giving adequate treatment to the
settlement between the parties and exercising its power
under Section 482 of the Code while accepting the
settlement and quashing the proceedings or refusing to
accept the settlement with direction to continue with the
criminal proceedings:
29.1. Power conferred under Section 482 of the Code is to
be distinguished from the power which lies in the Court to
compound the offences under Section 320 of the Code. No
doubt, under Section 482 of the Code, the High Court has
inherent power to quash the criminal proceedings even in
those cases which are not compoundable, where the parties
have settled the matter between themselves. However, this
power is to be exercised sparingly and with caution.
29.2. When the parties have reached the settlement and on
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that basis petition for quashing the criminal proceedings is
filed, the guiding factor in such cases would be to secure:
(i) ends of justice, or
(ii) to prevent abuse of the process of any court.
While exercising the power the High Court is to form an
opinion on either of the aforesaid two objectives.
29.3. Such a power is not to be exercised in those
prosecutions which involve heinous and serious offences of
mental depravity or offences like murder, rape, dacoity, etc.
Such offences are not private in nature and have a serious
impact on society. Similarly, for the offences alleged to have
been committed under special statute like the Prevention of
Corruption Act or the offences committed by public servants
while working in that capacity are not to be quashed merely
on the basis of compromise between the victim and the
offender.
29.4. On the other hand, those criminal cases having
overwhelmingly and predominantly civil character,
particularly those arising out of commercial transactions or
arising out of matrimonial relationship or family disputes
should be quashed when the parties have resolved their
entire disputes among themselves. 29.5. While exercising its
powers, the High Court is to examine as to whether the
possibility of conviction is remote and bleak and continuation
of criminal cases would put the accused to great oppression
and prejudice and extreme injustice would be caused to him
by not quashing the criminal cases.
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29.6. Offences under Section 307 IPC would fall in the
category of heinous and serious offences and therefore are to
be generally treated as crime against the society and not
against the individual alone. However, the High Court would
not rest its decision merely because there is a mention of
Section 307 IPC in the FIR or the charge is framed under
this provision. It would be open to the High Court to
examine as to whether incorporation of Section 307 IPC is
there for the sake of it or the prosecution has collected
sufficient evidence, which if proved, would lead to proving
the charge under Section 307 IPC. For this purpose, it
would be open to the High Court to go by the nature of
injury sustained, whether such injury is inflicted on the
vital/delicate parts of the body, nature of weapons used, etc.
Medical report in respect of injuries suffered by the victim
can generally be the guiding factor. On the basis of this
prima facie analysis, the High Court can examine as to
whether there is a strong possibility of conviction or the
chances of conviction are remote and bleak. In the former
case it can refuse to accept the settlement and quash the
criminal proceedings whereas in the latter case it would be
permissible for the High Court to accept the plea
compounding the offence based on complete settlement
between the parties. At this stage, the Court can also be
swayed by the fact that the settlement between the parties
is going to result in harmony between them which may
improve their future relationship. 29.7. While deciding
whether to exercise its power under Section 482 of the Code
or not, timings of settlement play a crucial role. Those cases
where the settlement is arrived at immediately after the
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alleged commission of offence and the matter is still under
investigation, the High Court may be liberal in accepting
the settlement to quash the criminal
proceedings/investigation. It is because of the reason that at
this stage the investigation is still on and even the charge-
sheet has not been filed. Likewise, those cases where the
charge is framed but the evidence is yet to start or the
evidence is still at infancy stage, the High Court can show
benevolence in exercising its powers favourably, but after
prima facie assessment of the circumstances/material
mentioned above. On the other hand, where the prosecution
evidence is almost complete or after the conclusion of the
evidence the matter is at the stage of argument, normally
the High Court should refrain from exercising its power
under Section 482 of the Code, as in such cases the trial
court would be in a position to decide the case finally on
merits and to come to a conclusion as to whether the
offence under Section 307 IPC is committed or not.
Similarly, in those cases where the conviction is already
recorded by the trial court and the matter is at the
appellate stage before the High Court, mere compromise
between the parties would not be a ground to accept the
same resulting in acquittal of the offender who has already
been convicted by the trial court. Here charge is proved
under Section 307 IPC and conviction is already recorded of
a heinous crime and, therefore, there is no question of
sparing a convict found guilty of such a crime."
32. Though in the said case, the High Court had refused to
exercise its jurisdiction under Section 482 CrPC to quash
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the proceedings wherein a serious offence under Section 307
IPC was involved, this Court after taking into consideration
various factors including that the elders of the village,
including the Sarpanch, had intervened in the matter and
the parties had not only buried their hatchet but had
decided to live peacefully in the future, quashed and set
aside the criminal proceedings under Section 307 IPC."
7.5 Considering the fact that this is high time that this
Court has to read between the lines about such incident
and the Court has to refuse to quash the proceedings in
such matters, which are having direct bearing on the
social harmony and well-being of the family life of the
innocent citizens and, therefore, I am of the view that
this is not a fit case where this Court should exercise
its discretion in favour of the present petitioner. The
present petition therefore needs to be dismissed and is
dismissed, accordingly with no order as to costs.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
