Jethanand Advani Son Of Shri ... vs State Of Rajasthan
2022 Latest Caselaw 5382 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

       S.B. Criminal Miscellaneous (Petition) No. 1595/2022

Jethanand Advani Son Of Shri Ramchander Advani, Aged About
58 Years, Resident Of House No. C-A, Jhulelal Housing Society
Ajay Nagar, Ajmer (Rajasthan).
                                                                   ----Petitioner
                                   Versus
1.      State Of Rajasthan, Through Public Prosecutor.
2.      Manish Himtani Son Of Shri Suresh Himtani, Aged About
        41 Years, Resident Of ARG City, Ashok Udhyan, Jaipur
        Road, Ajmer.
                                                                ----Respondents

For Petitioner(s) : Mr. Gurpreet Singh Sodhi, Adv.

Mr. Rajendra Prasad Gautam, Adv.

For Respondent(s) : Mr. Chandragut Chopra, PP Mr. Dharmendra Joshi, Adv.

           HON'BLE MR. JUSTICE BIRENDRA KUMAR

                                    Order

Judgment reserved on                   :               25/07/2022
Date of Pronouncement                  :                02/08/2022

1. The petitioner has challenged the FIR No. 12/2022 dated

27.1.2022 registered with Clock Tower Police Station in the town

of Ajmer at the behest of respondent No.2 for the offences under

Sections 420, 467, 468, 470 and 471 IPC.

2. The challenge is on the ground that FIR is clear abuse of the

process of law initiated with malafides/ malice to wreak vengeance

and to cause harm to the claim of the petitioner as well as on the

ground that it suffers from absurd and inherently improbable

allegations.

(2 of 7) [CRLMP-1595/2022]

3. According to the FIR, the accused petitioner was known to

the complainant respondent No.2 since last 12-13 years as

accused was having a business known as "JNT Brothers" as well as

accused was engaged in money lending. The respondent No.2

handed over a Vasiyatnama (Will), Mukhtarnama (power of

attorney) and an agreement to sell in respect of his shop No.3 at

Kishan Bhawan to his friend Ranjeet Moolchandani on 13.4.2016.

The documents were handed over due to friendship between the

two. Later on, with the consent of respondent No.2, Ranjeet

Moolchandani handed over those documents to the petitioner

along with a post-dated cheque of Rs. 7,00,000/- as security and

took loan of Rs. 7,00,000/- from the petitioner @ 2% interest. In

the month of September, 2016, Ranjeet returned the loan amount

to the petitioner and asked for the cheque and the documents but

the petitioner did not provide those documents and cheque, rather

placed the cheque for clearance before the Bank and the cheque

was declared dishonoured. Then the petitioner filed a criminal

complaint under Section 138 of the Negotiable Instruments Act

(for short "NI Act") against Ranjeet. Since the petitioner had

dishonest intention he did not return the documents referred

above and just to grab the shop of respondent No.2, made certain

interpolations in the said documents to put wrongful claim on the

shop of respondent No.2 whereas respondent No.2 had never sold

the said shop to the petitioner. The photographs and signatures of

respondent No.2 are pasted and forged on the said document by

the petitioner. Respondent No.2 expressed apprehension that the

said documents might be maliciously used by the petitioner.

4. Learned counsel for the petitioner submits that it would be

evident from the record that Ranjeet was purchasing goods from

(3 of 7) [CRLMP-1595/2022]

the shop of the petitioner and there was due with him for the

goods purchased. For payment of that due amount Ranjeet had

issued cheque which bounced, then the petitioner initiated

criminal prosecution against Ranjeet under Section 138 of the NI

Act. The trial resulted in conviction of Ranjeet by judgment dated

08.01.2019 passed in Cr. Case No. 527/2016 vide Annexure-2.

5. Ranjeet preferred an appeal against his conviction vide

Criminal Appeal No. 13/2022 and the appeal was disposed of by

judgment dated 17.5.2022 only after compromise between the

parties which was effected only after refund of the cheque amount

by Ranjeet to the petitioner. Therefore, Ranjeet was carrying a

grudge against the petitioner. However, Ranjeet never made any

statement during trial of the criminal case against him that the

three documents were handed over to him by respondent No.2

and later on Ranjeet had handed over the said documents to the

petitioner.

6. The fact is that respondent No.2 had entered into an

agreement to sale shop No.3 to the petitioner. The agreement

was executed before the notary public and in presence of the

witnesses. Out of total consideration of money of Rs. 15,00,000/-,

Rs. 1,00,000/- was paid to the petitioner at the time of agreement

and Rs. 14,00,000/- was to be handed over at the time of

registration which the petitioner paid and respondent No.2 handed

over possession of the shop to the petitioner. Due to COVID

situation the shop was not opened by the petitioner, however the

petitioner came to know that respondent No.2 had sold the said

shop to some other person then the petitioner found himself

cheated, an FIR No. 233/2021 on 4.12.2021 was filed against

respondent No.2 and others which is still pending. In the

(4 of 7) [CRLMP-1595/2022]

aforesaid background, for the first time respondent No.2 cooked

up a story that he had handed over the documents including the

paper of agreement to sale to Ranjeet and Ranjeet gave it to the

petitioner is highly unbelievable, especially in absence of any

explanation as to why the valuable security was handed over to a

friend; whether to indulge in cheating others or to use it to play

fraud upon others. Learned counsel submits that one thing is

admitted that the three of the documents were created by

respondent No.2 and the documents came into the hands of the

petitioner to his knowledge. If the documents were not carrying

any name or photographs of any individual, depicting the nature

of the document, it was worthless and there was no reason to

hand it over to the petitioner, therefore, in all probabilises the

earlier case of the petitioner that in fact there was an agreement

between the petitioner and respondent No.2 to sell the shop No.3

and respondent No.2 played fraud by selling the shop to some

other person and just to save his skin, the false case has been

lodged.

7. Learned counsel for respondent No.2 contends that it has

been well settled by catena of judicial pronouncements that power

of quashing the criminal proceedings especially the FIR should be

exercised very sparingly with circumspection and that too in the

rarest of rare cases. The court will not be justified in embarking

upon an enquiry with the reliability or genuineness or otherwise of

the allegations made in the FIR or the complaint. The

extraordinary and inherent powers under Section 482 Cr.PC do not

confer arbitrary jurisdiction on the Court. The First Information

Report is only an initiation to move the machinery of criminal

justice administration if a cognizable offence is disclosed in the

(5 of 7) [CRLMP-1595/2022]

FIR. In the FIR on hand allegation of forgery or tampering a

valuable security is there, which should be allowed to be

investigated and if found proved, it ought not be scuttled at the

threshold.

8. In the case of Prof. R.K. Vijaysarathy & Anr. Vs. Sudha

Seetharam & Anr., reported in (2019) 16 SCC 739, the

Hon'ble Supreme Court in para 9 of the judgment quoted as

follows:

"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 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

(6 of 7) [CRLMP-1595/2022]

so bereft of even the basic facts which are absolutely necessary for making out the offence. "

9. In the background of two incidents, a criminal

prosecution of Ranjeet under Section 138 NI Act wherein Ranjeet

never said that the referred documents were handed over to him

by respondent No.2 herein, improbabilise the claim of respondent

No.2 rather earlier criminal prosecution lodged by the petitioner

against respondent No.2 alleging therein that respondent No.2 had

entered into an agreement to sell with the petitioner and after

getting full consideration money sold the shop to some other

person makes the claim of respondent No.2 in the FIR improbable

because the incident of 2016 was never disclosed earlier even

after conviction of Ranjeet in a criminal case for the same incident

or even after institution of the criminal case by the petitioner

against the respondent.

10. The background allegation prima facie shows that

respondent No.2 acted with malice to pressurize the petitioner to

not to pursue further his claim based on agreement to sale with

respondent No.2. The respondent No.2 had admitted that Ranjeet

was his business partner also besides being a friend in his

statement before the police on 14.12.2016, a copy of which is at

page 56.

In case the claim of the private respondent that with

the consent of respondent Ranjeet had handed over above

referred three documents to the petitioner is accepted, the

allegation that the document was forged is redundant for the

reason that prima facie, the document does not appear to have

been tampered nor the respondent No.2 has produced a copy of

the same to show that the original was not carrying what is

(7 of 7) [CRLMP-1595/2022]

depicted in the documents produced by the petitioner. Moreover,

if those documents were not creating any right in favour of the

petitioner it would have been worthless for the petitioner to accept

it as security and no prudent person is expected to accept the

document as security which does not create any right in his

favour. Therefore, the FIR suffers from bald allegations.

11. To conclude the FIR under challenge was initiated to

wreak vengeance against the petitioner as Ranjeet was already

convicted and the present palpably malicious prosecution has been

initiated only to defeat the claim of the petitioner in pursuance of

agreement to sale between the parties.

12. Therefore, continuance of the criminal proceedings would be

an abuse of the process of law, hence the impugned FIR and

subsequent proceedings arising out of the said FIR stands quashed

and this petition stands allowed.

Any observations made above is for the purpose of deciding

this petition and shall not affect the right/defence of the parties in

any other proceedings between them.

(BIRENDRA KUMAR),J

BRIJ MOHAN GANDHI /77/111

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