Gujarat High Court
Kaushikbhai Kesarbhai Patel vs Jesing Keshar Patel on 19 September, 2025
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Reserved On : 01/09/2025
Pronounced On : 19/09/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1179 of 2020
With
R/CRIMINAL MISC.APPLICATION NO. 1434 of 2020
With
R/CRIMINAL MISC.APPLICATION NO. 4205 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
✔
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KAUSHIKBHAI KESARBHAI PATEL
Versus
JESING KESHAR PATEL & ANR.
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Appearance:
MR. R.D.KINARIWALA(6146) for the Applicant(s) No. 1
DR. HARDIK K RAVAL(6366) for the Respondent(s) No. 1
MR. CHINTAN DAVE, APP for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. These batch of matters since emanates from the self-same
First Information Report and, with the consent of learned advocates
appearing for either side, they are heard and decided analogously.
Accordingly, the present common order govern the disposal of the
entire group of matters.
2. For the sake of convenience, Criminal Misc. Application
No.1434 of 2020 is treated as the lead matter for the purpose of
delineating the factual matrix.
APPEARANCE:-
3. Learned Advocate Mr. R.D. Kinariwala has appeared on
behalf of the petitioner in Special Criminal Application No.1179 of
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2020 as well as in Criminal Misc. Application No.1434 of 2020.
Learned Advocate Mr. B.T. Rao has represented the petitioner in
Criminal Misc. Application No.4205 of 2020. Learned Advocate
Mr. H.K. Raval has appeared on behalf of respondent No.2 in all
the captioned matters, whereas the respondent-State has been
represented by the Learned Additional Public Prosecutor, Mr.
Chintan Dave.
BRIEF FACTS OF CR.MA NO.1434 OF 2020:-
4. Shorn of unnecessary details, the facts reveal that the
complainant, Jesingbhai Kesarbhai Patel, serving as Vice Chairman
of Goral Group Seva Sahkari Mandli Ltd., lodged the impugned
FIR alleging large-scale misappropriation of funds by the clerk of
the society, namely Hareshbhai Mohanbhai Patel, in collusion with
other office bearers. The society, registered under the Gujarat
Cooperative Societies Act, 1957, had as its primary object to
provide fertilizers, seeds, Kisan Credit Cards, and concessional
loans to farmers. An audit conducted at the instance of Sabarkantha
District Regional Sahkari Bank revealed that during the years 2017
to 2019, the said clerk misappropriated a sum of ₹4,72,200/- from
stock accounts and further advanced a fraudulent loan of
₹13,91,896.36/- in the name of his father, leaving an outstanding
liability of ₹14,91,081.39/-. In all, the misappropriation was to the
tune of ₹19,63,281.39/-. It is alleged that the present applicant,
being the then Chairman, along with the Secretary, Kaushikbhai
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Kesarbhai Patel, not only failed to prevent such illegalities despite
knowledge thereof but actively abetted and supported the said co-
accused in commission of the offences.
4.1. Upon discovery of these irregularities in the audit report dated
06.08.2019, the District Registrar, Cooperative Societies,
Himmatnagar, directed the complainant on 21.11.2019 to lodge the
FIR within thirty days. Pursuant thereto, the FIR came to be
registered against the applicant and other co-accused persons. The
applicant, apprehending arrest, unsuccessfully sought anticipatory
bail before the Sessions Court, Idar, but was granted relief by this
Court vide order dated 13.01.2020 in Criminal Misc. Application
No. 577 of 2020. The applicant asserts that, upon learning of the
misappropriation, he had already instituted lavad suit No. 281 of
2018 before the Board of Nominees, Mehsana under Section 96 of
the Gujarat Cooperative Societies Act seeking recovery of
₹4,72,200/- from the said clerk. The present petition, therefore, has
been filed by the applicant in the aforesaid background.
BRIEF FACTS OF SCR.A NO.1179 OF 2020:-
5. Shorn of unnecessary details, the facts reveal that pursuant to
a Circular dated 26.06.2013 issued by the Deputy Secretary, State
of Gujarat, it was mandated that in case of any financial
irregularities or criminal breach of trust committed in a cooperative
society, the principal office bearers were required to initiate
prosecution within thirty days, failing which prosecution could also
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be lodged against such office bearers. In the present case, an
inspection was carried out by Sabarkantha District Central
Cooperative Bank Ltd., which revealed serious irregularities
committed by the main accused, Hareshbhai Mohanbhai Patel, then
working as clerk. At clause 17 of the inspection report, specific
offences were attributed to him, coupled with a direction to initiate
recovery proceedings. Consequent thereto, the society instituted
lavad suit No. 280 of 2018 for recovery of ₹12,66,007.39 against
the said accused and his father, and lavad suit No. 281 of 2018 for
recovery of ₹4,72,200/-, wherein injunctions were granted over
certain lands. Additionally, Criminal Case No. 805 of 2019 was
lodged against the father of the main accused, namely Mohanbhai
Laljibhai, in respect of dishonour of a cheque of ₹15,15,606/-.
5.1. Thereafter, by letter dated 21.11.2019, the District Registrar
directed initiation of prosecution against the petitioner (Secretary)
as well as the then Chairman, in view of the aforesaid Circular, on
the premise that no FIR had been lodged against the principal
delinquent, Hareshbhai Mohanbhai Patel. Pursuant thereto, the
impugned FIR came to be registered for offences punishable under
Sections 406, 409, 420 and 114 of the IPC, wherein the petitioner
has also been arrayed as an accused solely on the ground of failure
to lodge prosecution against the main accused. Aggrieved thereby,
the present petition has been instituted.
BRIEF FACTS OF CR.MA NO.4205 OF 2020:-
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6. Shorn of unnecessary details, the facts reveal that the
petitioner, a young Assistant Clerk aged about 20 years at the
relevant time, was appointed in The Goral Group Seva Sahakari
Mandali Ltd. to assist the Senior Clerk. Upon the resignation of the
said Senior Clerk, the charge was temporarily entrusted to the
petitioner. It is the case of the petitioner that the Secretary of the
Society, one Kaushikbhai Kesharbhai Patel, who was deeply
indebted to private traders and had been inducted into service
owing to his close relations with the Chairman and other office
bearers, was in effective control of the affairs of the Society,
including the accounts, records and computer systems. An
inspection by the Sabarkantha District Cooperative Bank for the
period between 2016 and 2018 revealed stock discrepancies of
₹4,72,200/-, and subsequent audit for the years 2017 to 2019
disclosed that bills had been drawn in the name of the petitioner's
father, crediting a sum of ₹13,91,843/-, which the petitioner
contends was orchestrated by the Secretary for adjustment of his
private liabilities.
6.1. On these allegations, the Registrar directed lodging of a
criminal complaint against the Chairman, Secretary, the present
petitioner and others. Prior thereto, the Society had already
instituted lavad suit Nos. 280 and 281 of 2018 before the Board of
Nominees, Mehsana, seeking recovery of ₹12,66,007.39 and
₹4,72,200/- respectively, wherein the petitioner has filed his
defence. Eventually, FIR being I-C.R. No. 150 of 2019 came to be
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registered with Idar Police Station on 20.12.2019 under Sections
406, 409, 420 and 114 of the IPC. The petitioner's application for
anticipatory bail before the Sessions Court came to be rejected;
however, this Court, vide order dated 21.01.2020 in Criminal Misc.
Application No. 1174 of 2020, granted him protection. The
petitioner maintains that he has been falsely implicated at the behest
of the Secretary and other senior functionaries of the Society, who
had trapped him into the affairs of the Society despite his
inexperience and subordinate role. Hence, the present petition.
SUBMISSION OF PETITIONERS (KAUSHIKBHAI
KESHARBHAI PATEL AND NARIMBHAI HATHIBHAI
PATEL):-
7. Seeking quashment of the impugned FIR, learned Advocate
Mr. R.D. Kinariwala, appearing for the petitioners, submitted that
the petitioners, namely, Kaushikbhai Kesarbhai Patel and
Narimbhai Hathibhai Patel, are the Chairman and Secretary,
respectively, of The Goral Group Seva Sahakari Mandli Ltd. (for
short, "the Cooperative Society"). It was contended that a plain
reading of the FIR reveals that the principal allegations are directed
only against one Hareshbhai Mohanbhai Patel, a Clerk in the
Cooperative Society, who was primarily entrusted with the
responsibilities pertaining to the sales department. It is further
submitted that, at the highest, the allegations against the present
petitioners are that they allegedly facilitated the said co-accused
Hareshbhai Mohanbhai Patel in the purported embezzlement of a
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sum of ₹19,63,281.39/- from the accounts of the Cooperative
Society, thereby attracting the provisions of Sections 406, 420, 409
and 114 of the Indian Penal Code. Learned advocate, however,
urged that the FIR proceeds on a misconception of facts, inasmuch
as the petitioners, while discharging their official duties as
Chairman and Secretary of the Cooperative Society, have not
committed any offence whatsoever as alleged therein.
7.1. Adverting to the second limb of his submissions, learned
Advocate Mr. Kinariwala contended that the dispute, as portrayed
in the FIR, is in its true essence civil in nature, though it has been
ingeniously cloaked with the colour of criminality. In support of
this proposition, reliance has been placed upon the authoritative
pronouncement of the Hon'ble Supreme Court in Kunti and
Another v. State of Uttar Pradesh and Another [(2023) 6 SCC
109], as well as the decision in Prof. R.K. Vijayasarathy and
Another v. Sudha Seetharam and Another [(2019) 16 SCC 739],
to buttress the argument that when a purely civil dispute is sought
to be dressed up in the garb of criminal prosecution, the High
Court, in exercise of its inherent jurisdiction under Section 482 of
the Code of Criminal Procedure, ought to intervene and quash such
FIR in order to prevent abuse of the process of law.
7.2. A further contention canvassed by learned Advocate Mr. R.D.
Kinariwala is that the principal culpability rests solely upon the
shoulders of Mr. Hareshbhai Mohanbhai Patel, who was
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functioning as a Clerk in the sales department of the Cooperative
Society. It is urged that said Hareshbhai Patel misappropriated a
sum of ₹4,72,200/- by manipulating stock entries, and further
procured credit in the name of his father, Mohanbhai Patel, to the
tune of ₹13,91,896.36/-, thereby aggregating a total embezzlement
of ₹19,63,281/-. Learned advocate would submit that the
petitioners are in no manner the beneficiaries of such fraudulent
transactions or misappropriation of funds. The gravamen of the
allegations, if at all, squarely implicates only the said Hareshbhai
Mohanbhai Patel, who is the principal accused and the sole
perpetrator of the alleged financial improprieties.
7.3. It is also submitted that, as soon as, petitioner came to know
about misappropriation has been made by Mr. Hareshbhai
Mohanbhai Patel, they have filed lavad suit before board of
nominee to recover those amount, which indicates bona fides of
petitioner.
7.4. It was thus canvassed that no prima facie case is made out
against the present petitioners, who, according to the learned
advocate, are innocent office-bearers and have not committed any
offence as alleged. In such circumstances, it was urged that to
compel the petitioners to undergo the rigours of a criminal trial
would be wholly unwarranted and oppressive. Ergo, it was
submitted that the present petitions merit favourable consideration
and deserve to be allowed.
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SUBMISSION OF PETITIONER (MR. HARESHBHAI
MOHANBHAI PATEL):-
8. Learned Advocate Mr. B.T. Rao, appearing for the accused,
submitted that the petitioner has been made a mere scapegoat in the
entire episode. It was urged that one Mr. Maheshbhai Ramanbhai
Patel tendered his resignation from the Cooperative Society, which
came to be accepted on 19.07.2017, with a stipulation that he would
first settle the accounts of the Society, reconcile the stock, and hand
over the entire cash in hand to the Secretary. On the very same date,
another resolution was purportedly passed whereby the charge of
Maheshbhai Ramanbhai Patel was conferred upon the present
petitioner.
8.1. Learned advocate would contend that the real culprits are, in
fact, Kaushikbhai Kesarbhai Patel and Narimbhai Hathibhai Patel,
who, being the Chairman and Secretary of the Cooperative Society,
allegedly siphoned off substantial funds by projecting credits in the
name of the petitioner. Reliance was placed on the reply filed by the
petitioner in the lavad suit, wherein it was specifically demanded
that the documentary evidence be produced to establish that the
petitioner's father had availed credit to the tune of ₹13 lakhs and
odd amount. It was submitted that the institution of the lavad suit
was nothing but a device to camouflage the misdeeds of the
Chairman and Secretary, who had orchestrated the siphoning of
large sums of money. Learned advocate would further argue that,
significantly, after filing the said lavad suit, the Chairman and
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Secretary have chosen not to pursue it diligently. According to
learned advocate Mr. Rao, the chronology of events demonstrates
that as soon as the audit report surfaced pointing out irregularities,
the Chairman and Secretary, in order to shield themselves from
culpability and to divert attention, hurriedly instituted the lavad suit
so as to shift the blame upon the petitioner.
8.2. It is also submitted that Registrar (Cooperative) has ordered to
register FIR against Chairman and Secretary. The order has
unsuccessfully challenged by them before appellate authority. It is
therefore submitted that if Chairman and Secretary are truly pure
from culpability of offence, they would not have challenged the
order of registering FIR. Mainly upon above submission, it is urged
by learned advocate for the petitioners to quash FIR against
petitioners.
SUBMISSION OF THE COMPLAINANT:-
9. Per contra, learned Advocate Mr. Raval, appearing for the
private respondent, drew the Court's attention to various documents
placed on record and submitted that Mr. Hareshbhai Mohanbhai
Patel, who was serving in the sales department of the Cooperative
Society, is indeed the principal accused. It was pointed out that in
his statement made before the two other accused, even prior to the
registration of the FIR, he had candidly admitted to having
siphoned an amount of ₹4,72,200/-.
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9.1. Learned advocate further submitted that the misappropriation
of ₹13,91,843/- in the name of Mohanbhai Patel stands prima facie
established from the documentary material available on record. He
would also draw strength from the audit report prepared under the
authority of the District Registrar, which has evaluated and
delineated the specific role of the present petitioners, namely,
Kaushikbhai Kesarbhai Patel and Narimbhai Hathibhai Patel, who
were discharging functions as the Chairman and Secretary of the
Cooperative Society.
9.2. It was further contended that the complainant has acted
strictly in compliance with the binding directives issued by the
District Registrar, which enjoined the initiation of criminal
proceedings against the office bearers concerned for the alleged
siphoning of an amount aggregating to ₹19,63,281.39/-. In the
backdrop of such directions and the material collected during the
audit, learned Advocate Mr. Raval urged that this Court, in the
exercise of its inherent jurisdiction under Section 482 of the Code,
ought not to interdict the FIR at this incipient stage of the
proceedings, particularly when prima facie complicity of the
petitioners is discernible from the record.
SUBMISSION OF LEARNED APP:-
10. Learned APP for the respondent-State, while adopting the
submissions advanced by learned Advocate Mr. Raval, submitted
that the contentions canvassed on behalf of the petitioners pertain to
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disputed questions of fact, which cannot be gone into within the
limited scope of proceedings under Section 482 of the Code for
quashing of the FIR. It was, therefore, urged that this Court ought
not to exercise its inherent jurisdiction in favour of the petitioners
and that the petitions deserve to be dismissed in limine.
FINDINGS, ANALYSIS AND CONCLUSION OF THE
COURT:-
11. I have heard the learned Advocates appearing on behalf of
both sides and have carefully perused the record as well as the
documents placed on file. In Prof. R.K. Vijayasarathy (supra), the
Hon'ble Supreme Court, while delineating the contours of the
inherent powers vested in the High Court under Section 482 of the
Code, has in paragraphs 9 and 10 examined the scope and ambit of
such jurisdiction, particularly with reference to the necessity of
passing appropriate orders to secure the ends of justice. The
relevant observations read thus: -
"9. Section 482 of Code of Criminal Procedure saves
the inherent power of the High Court to make orders
necessary to secure the ends of justice. In Indian Oil
Corpn. v. NEPC India Ltd.5, a two judge Bench of this
Court reviewed the precedents on the exercise of
jurisdiction under Section 482 of the Code of Criminal
Procedure 1973 and formulated guiding principles in
the following terms:-
"12. ...
(i) A complaint can be quashed where the allegations
made in the complaint, even if they are taken at their
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face value and accepted in their entirety, do not prima
facie constitute any offence or make out the case
alleged against the accused. For this purpose, the
complaint has to be examined as a whole, but without
examining the merits of the allegations. Neither a
detailed inquiry nor a meticulous analysis of the
material nor an assessment of the reliability or
genuineness of the allegations in the complaint, is
warranted while examining prayer for quashing of a
complaint.
(ii) A complaint may also be quashed where it is a
clear abuse of the process of the court, as when the
criminal proceeding is found to have been initiated
with mala fides/malice for wreaking vengeance or to
cause harm, or where the allegations are absurd and
inherently improbable.
(iii) The power to quash shall not, however, be used
to stifle or scuttle a legitimate prosecution. The power
should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence alleged.
If the necessary factual foundation is laid in the
complaint, merely on the ground that a few
ingredients have not been stated in detail, the
proceedings should not be quashed. Quashing of the
complaint is warranted only where the complaint is so
bereft of even the basic facts which are absolutely
necessary for making out the offence.
10. The High Court, in the exercise of its jurisdiction
under Section 482 of the Code of Criminal Procedure, is
required to examine whether the averments in the
complaint constitute the ingredients necessary for an
offence alleged under the Penal Code. If the averments
taken on their face do not constitute the ingredients
necessary for the offence, the criminal proceedings may
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be quashed under Section 482. A criminal proceeding
can be quashed where the allegations made in the
complaint do not disclose the commission of an offence
under the Penal Code. The complaint must be examined
as a whole, without evaluating the merits of the
allegations. Though the law does not require that the
complaint reproduce the legal ingredients of the offence
verbatim, the complaint must contain the basic facts
necessary for making out an offence under the Penal
Code."
12. In case of T. Vengama Naidu v. T. Dora Swamy Naidu and
Others; (2007) 12 SCC 93, it is held as under:-
"7. It cannot be disputed that a private complaint was filed
before the learned Magistrate who had made over the said
complaint for investigation under Section 156(3) Cr.P.C.
That order of the Magistrate has not been challenged. On the
basis of that order the police registered a crime probably
treating the complaint as the FIR. It is settled law that an FIR
and the consequent investigation cannot be quashed unless
there is no offence spelt out from the same. The law in this
respect is settled that the said FIR has to be taken on its face
value and then it is to be examined as to whether it spells out
the offences complained of. There was no question of
considering the merits of the allegations contained in the FIR
at that stage or testing the veracity of allegations. In this
case, admittedly, the investigation was in progress. The
police had also not reported back to the Magistrate the result
of their investigation. Under such circumstances, the FIR
could have been quashed only and only if there appeared to
be no offence spelt out therein."
8. A glance at the FIR suggests that there were serious
allegations against both the accused, respondents 1 and 2
herein inasmuch as it was specifically alleged that inspite of
the revocation of the General Power of Attorney and inspite
of a specific notice to that effect by the complainant to the
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first respondent, the first respondent went on dishonestly to
execute the sale deed in favour of his own daughter on the
basis of the said revoked General Power of Attorney. It is
alleged against the first respondent that he had no right over
the property and yet he had executed a document in favour
of the second respondent without any authority with an
intention to cause loss to the complainant and to cheat him.
It was alleged against the second respondent that she was
well aware that the first respondent was not competent to sell
the property so as to defraud and cheat the complainant and,
therefore, she also was liable to be punished under Sections
464, 423, 420 read with Section 34 IPC. It was not for the
learned Judge at the stage of investigation to examine the
nature of the transaction and further to examine as to
whether any offence was actually committed by the accused
persons or not. At that stage the only inquiry which could
have been made was as to whether the complaint or the FIR
did contain allegations of any offence. Whether those
offences were made out, even prima facie, could not have
been examined at that stage as the investigation was pending
then. We, therefore, do not agree with the learned Single
Judge that the FIR was liable to be quashed. We also do not
agree with the learned Judge that there are no ingredients of
the offences complained of in the FIR and this was a civil
dispute. However, we do not wish to go deeper into that
question. Our prima facie examination satisfies us that there
were ingredients of offences complained of and, therefore, at
that stage the High Court could not have quashed the FIR as
well as the investigation. The appeal, therefore, has to be
allowed, setting aside the order of the learned Single Judge."
13. Yet in another case delivered by the Apex Court in the case of
Eicher Tractor Limited and Ors. Vs. Harihar Singh and Anr
reported in (2008) 16 SCC 763. Relevant para is read as under :-
"9. As noted above, 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. 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
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prosecution. The High Court being the highest court of a
State should normally refrain from giving a prima facie
decision in a case where the entire 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 magnitude and 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. It
would not be proper for the High Court to analyse the case
of the complainant in the light of all probabilities in order to
determine whether a conviction would be sustainable and on
such premises, arrive at a conclusion that the proceedings are
to be quashed. It would be erroneous to assess the material
before it and conclude that the complaint cannot be
proceeded with. In proceedings instituted on complaint,
exercise of the inherent powers to quash the proceedings is
called for only in a case where the complaint does not
disclose any offence or is frivolous, vexatious or oppressive.
If the allegations set out in the complaint do not constitute
the offence of which cognizance has been taken by the
Magistrate, it is open to the High Court to quash the same in
exercise of the inherent powers under Section 482 of the
Code. It is not, however, necessary that there should be
meticulous analysis of the case before the trial to find out
whether the case would end in conviction or acquittal. The
complaint has to be read as a whole. If it appears that on
consideration of the allegations in the light of the statement
made on oath of the complainant that the ingredients of the
offence or offences are disclosed and there is no material to
show that the complaint is mala fide, frivolous or vexatious,
in that event there would be no justification for interference
by the High Court. When an information is lodged at the
police station and an offence is registered, then the mala
fides of the informant would be of secondary importance. It
is the material collected during the investigation and
evidence led in the court which decides the fate of the
accused person. The allegations of mala fides against the
informant are of no consequence and cannot by itself be the
basis for quashing the proceedings."
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14. In the case of Mahendra K.C. v/s. State of Karnataka
[(2022) 2 SCC 129], Hon'ble Apex Court observed as under :-
"16..... the test to be applied is wither the allegations in the
complaint, as they stand, without adding or detracting from
the complaint, prima facie establish the ingredients of the
offence alleged. At this stage, the High Court cannot test the
veracity of the allegations, nor, for that matter, can it
proceed in the manner that a judge conducting a trial would,
based on the evidence collected during the course of trial."
15. In Iveco Magirus Brandschutztechnik GmbH v. Nirmal
Kishore Bhartiya, (2024) 2 SCC 86, the Hon'ble Supreme Court
has been pleased to hold as under: -
"63. Adverting to the aspect of the exercise of jurisdiction
by the High Courts under Section 482CrPC, in a case where
the offence of defamation is claimed by the accused to have
not been committed based on any of the Exceptions and a
prayer for quashing is made, the law seems to be well
settled that the High Courts can go no further and enlarge
the scope of inquiry if the accused seeks to rely on materials
which were not there before the Magistrate. This is based on
the simple proposition that what the Magistrate could not
do, the High Courts may not do. We may not be understood
to undermine the High Courts' powers saved by Section
482CrPC; such powers are always available to be exercised
ex debito justitiae, i.e. to do real and substantial justice for
the administration of which alone the High Courts exist.
However, the tests laid down for quashing an FIR or
criminal proceedings arising from a police report by the
High Courts in the exercise of jurisdiction under Section
482CrPC not being substantially different from the tests laid
down for quashing a process issued under Section 204 read
with Section 200, the High Courts on recording due
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satisfaction are empowered to interfere if on a reading of
the complaint, the substance of statements on oath of the
complainant and the witness, if any, and documentary
evidence as produced, no offence is made out and that
proceedings, if allowed to continue, would amount to an
abuse of the legal process. This, too, would be
impermissible if the justice of a given case does not
overwhelmingly so demand."
16. In the wake of the aforesaid settled principles of law, and
taking them into consideration, if one were to examine the FIR and
the documents annexed thereto, it emerges that the District
Registrar, Cooperative Societies, Sabarkantha, by order dated
21.11.2019, directed Mr. Jesinghbhai Kesarbhai Patel, the then
Chairman of the Cooperative Society, to lodge a police complaint in
respect of the misappropriation of funds (Annexure-A to Criminal
Miscellaneous Application No.1434 of 2020). In the said order, the
role of each of the petitioners has been delineated with specificity.
The audit note, which forms the foundational document, reveals
embezzlement to the tune of ₹19,63,281.39/- from the account of
the Cooperative Society.
16.1. The aforesaid order of the District Registrar was carried in
revision before the Additional Registrar (Appeals), as reflected in
Annexure-R to Criminal Miscellaneous Application No.4205 of
2020; however, the challenge proved abortive. The rival
submissions advanced on behalf of the petitioners are in the nature
of an attempt to eschew liability and foist the same upon the other
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accused. The material placed on record prima facie establishes that
a colossal sum of ₹19,63,281.39/- has been siphoned off from the
account of the Cooperative Society by the petitioners, namely the
Clerk as well as the Chairman and Secretary of the Society.
16.2. The allegations levelled are of a grave and serious nature.
Petitioners Kaushikbhai Kesarbhai Patel and Narimbhai Hathibhai
Patel seek to obfuscate the same by contending that they had
instituted lavad suit No.281 of 2018 for recovery of a sum of
₹4,72,000/-. However, the more pertinent issue remains
unanswered as to why steps were not taken to recover the entire
defalcated amount of ₹19,63,281.39/-. Furthermore, when learned
Advocate Mr. R.D. Kinariwala was specifically confronted on
whether the Cooperative Society had passed any resolution
authorising to file said lavad suit, he was unable to furnish a
satisfactory response. It also remains undisputed that, though the
lavad suit was filed in 2018, no further proceedings were pursued
thereafter. Filing of lavad suit on their own by Chairman and
Secretary prima facie establish that action was intended to eyewash
misdeed done by them and to thoroughly entice liability of
misappropriation of society's fund upon Mr. Hareshbhai
Mohanbhai Patel.
17. In contradistinction to the above, learned Advocate Mr. Rao
has drawn the attention of this Court to the written statement filed
in the said lavad suit by the petitioners and submitted that an
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application (Annexure-M to Criminal Miscellaneous Application
No.4205 of 2020) was preferred therein, seeking production of
documents from the petitioners to establish that the father of the
petitioner, namely Mohanbhai, had been extended credit to the tune
of ₹13,91,843/- by preparation of bills. It is urged that this
application was never complied with by petitioners Kaushikbhai
Kesarbhai Patel and Narimbhai Hathibhai Patel. It is further
contended that, in order to camouflage this issue, a false suit was
instituted by the two petitioners, who are in fact the principal
architects of siphoning funds from the coffers of the Cooperative
Society.
17.1. The record, therefore, sheds light upon a concerted design,
wherein the accused appear to have acted in concert, hand-in-glove,
to misappropriate a staggering sum of ₹19,63,281.39/- from the
account of the Cooperative Society. The FIR, on its plain reading,
prima facie discloses the commission of offences punishable under
Sections 406, 409 and 420 of the Indian Penal Code.
18. It is apposite to note that cooperative societies in the State of
Gujarat are primarily governed by the Gujarat Cooperative
Societies Act, 1961, which provides the statutory framework for
their registration, regulation, and functioning with a view to
securing collective economic and social benefits. A cooperative
society, by its very nature, is a voluntary association wherein
individuals, united by common needs and aspirations, come
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together to pursue shared economic, social, and cultural objectives
through the principles of self-help and mutual aid.
19. The cooperative movement is founded on the ethos of
democratic functioning, wherein service precedes profit, and the
paramount objective is the advancement of the economic interests
of its members, coupled with the promotion of their general welfare
and, in a broader sense, the welfare of the community at large.
20. Ergo, the functioning of a cooperative society must, at all
times, conform to the cooperative principles and the statutory
mandate, ensuring transparency, accountability, and fidelity to the
cause of its members. The role of the Chairman, in this context,
assumes pivotal significance, for he is entrusted with the
responsibility to supervise, guide, and represent the society in
furtherance of its policy decisions, thereby ensuring that the
cooperative institution functions in a manner consistent with its
foundational objectives and in furtherance of the larger public good.
21. What could be prima facie noticed that petitioners instead of
leaving with principal, ethos of Cooperatives, as well as to their
statutory duty, in tandem have siphoned off staggering amount of
₹19,63,281.39/- from the account of Cooperative Society. The FIR
on its plain reading discloses the commission of cognizable offence.
Learned advocate for petitioners, in their arguments, mainly tried to
unshoulder liability and to pass on the shoulder of the other
petitioners-accused. Neatly, no case is made out to interdict the FIR
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at threshold.
22. Worthful reference can be taken from the case of State of
Haryana (supra), where note of caution has been spelt by Hon'ble
Apex Court saying that power to quash FIR should be exercised
sparingly. Relevant para is extracted as below :-
"103. We also give 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 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."
23. In view of the foregoing discussion and the settled legal
position, this Court is of the considered opinion that the petitions
are devoid of merit and do not warrant any interference in the
exercise of inherent jurisdiction under Section 482 of the Code of
Criminal Procedure. The reliefs prayed for, if granted, would
amount to stifling a legitimate prosecution at its very threshold,
which this Court cannot countenance.
24. Ergo, all the three petitions, being misconceived, stand
Dismissed. Rule is discharged in each of them. Interim relief, if
any, stands vacated forthwith.
(J. C. DOSHI,J)
MANISH MISHRA
