R/CR.MA/19007/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 19007 of 2014
[On note for speaking to minutes of order dated 06/04/2017 in
R/CR.MA/18228/2016 ]
BAVCHANDBHAI DAHYABHAI PATEL….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
MR.KISHORE PRAJAPATI, ADVOCATE for the Applicant(s) No. 1
MR SUNIL M AGRAWAL, ADVOCATE for the Respondent(s) No. 2
MS NISHA THAKORE, APP for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/04/2017
ORAL ORDER
By this Note for speaking to minutes filed by the applicant of the
Criminal Miscellaneous Application No.19007 of 2014, it is prayed that
while disposing of the main matter, in one of the connected matters, the
interim order was continued for a period of two weeks, whereas in his
case, the interim order has not been continued. The interim order, which
was earlier granted, shall continue for two more weeks from today, as
the applicant would like to file an anticipatory bail application before the
Court concerned.
With the above, the Note is disposed of.
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(J.B.PARDIWALA, J.)
chandresh
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING SET ASIDE
FIR/ORDER) NO. 18228 of 2016
With
CRIMINAL MISC.APPLICATION NO. 16076 of 2014
With
CRIMINAL MISC.APPLICATION NO. 19007 of 2014
NARESHBHAI PRAHALLADBHAI MODI….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
CRIMINAL MISC.APPLICATION NO.18228/2016
MR AD SHAH, ADVOCATE for the Applicant(s) No. 1
MR. MITESH AMINT, PUBLIC PROSECUTOR WITH MS NISHA THAKORE, APP for
the Respondent(s) No. 1
MR SUNIL AGRAWAL, ADOVATE for the Respondent No.2
CRIMINAL MISC.APPLICATION NO.16076/2014
MR R.S. SANJANWALA, SENIOR ADVOCATE WITH MS. KITTY MEHTA,
ADVOCATE for the Applicant(s)
MR. MITESH AMINT, PUBLIC PROSECUTOR WITH MS NISHA THAKORE, APP for
the Respondent(s) No. 1
MR SUNIL AGRAWAL, ADOVATE for the Respondent No.2
CRIMINAL MISC.APPLICATION NO.19007/2014
MR KISHOR PRAJAPATI, ADVOCATE for the Applicant(s) No. 1
MR. MITESH AMINT, PUBLIC PROSECUTOR WITH MS NISHA THAKORE, APP for
the Respondent(s) No. 1
MR DIPEN DAVE, ADOVATE for the Respondent No.2
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/04/2017
COMMON ORAL ORDER
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1. Since the issues involved in all the captioned three applications
are interrelated and the challenge is also to the proceedings of a self
same case, those were heard analogously and are being disposed of by
this common judgment and order.
2. By these three applications under Section482 of the Code of
Criminal Procedure, 1973, the applicantsoriginal accused persons seek
to invoke the inherent powers of this Court praying for quashing of the
proceedings of Criminal Case No.1493 of 2014 pending before the Court
of the learned Metropolitan Magistrate, Court No.20, Ahmedabad,
arising from the F.I.R. being C.R. No.I231 of 2014 filed before the
Odhav Police Station, Ahmedabad, for the offence punishable under
Sections406, 420, 467, 468, 120B r/w.114 of the I.P.C.
3. The case of the prosecution may be summarized as under:
3.1 The original first informant is one Jagdishbhai Surendrabhai Desai
i.e. the respondent no.2 herein. The dispute pertains to land bearing
survey nos.152A, 152B, 153 paikee admeasuring 46,136 sq.mtrs.
situated at VillageNikol, DistrictAhmedabad, The original owner of the
parcels of land was the applicant of the Criminal Misc. Application
No.18228 of 2016 viz. Nareshbhai Prahladbhai Modi. On 31/01/1991,
about 15,000 sq. yards land from the survey No.153 paikee was sold by
Nareshbhai Prahladbhai Modi to the Jeevandhara Co. Op. Housing
Society (Proposed) under a Banakhat registered on 31/01/1991. One
Madhubhai Popatbhai Vasani was the Chairman of the said Society. On
28/04/1992 Madhubhai Popatbhai Vasani purchased land from the
survey Nos.152A, 152B and 153 admeasuring 46,131 sq. mtrs vide
registered agreement to sale on behalf of the Partnership Firm. One
Batukbhai Popatbhai Patel was one of the partners of the said firm.
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3.2 In the year 1994, the land admeasuring about 15,000 sq. yards of
survey No.153B was sold to M/s. Gayatri Corporation. An Agreement to
sale in this regard was executed by M/s. Gayatri Corporation in 1994
who had proposed Gitanjali Park having 65 plots, each admeasuring 175
sq. yards and 200 sq. yards respectively. On 27/01/1995, the first
informant herein booked the plot No.37 admeasuring 175 sq.yards. The
partners of the Gayatri Corporation did not issue any receipt at that
point of time for the cash amount paid by the first informant, however,
the Gayatri Corporation handed over the possession of the plots with a
compound wall surrounding the area, but failed to execute the
registered saledeed in favour of the purchasers. In the year 1998, a
Final Town Planning Scheme came to be sanctioned covering the land in
dispute. It is the case of the first informant that all the accused persons
knew very well that the Draft Planning Scheme was introduced in the
year 1987 in which the land in question was covered and despite such
knowledge, the same was suppressed and by misrepresentation the plots
came to be sold to the Gitanjali Park. It appears that when the Town
Planning Scheme came to be finalized, the land in question was allotted
as a final plot to the person entitled. The possession of the same was
taken and handed over to the person entitled to the final plot under the
Scheme. On 14/06/2000, the members of the Gitanjali Park preferred a
representation addressed to the Town Planning Committee with a
request to release the land in their favour. It is alleged that the partners
of the Gayatri Corporation did not support the members of the Gitanjali
Park. In such circumstances, the Municipal Corporation took over the
possession of the Gitanjali Park Plot in the year 2008.
3.3 It also appears from the materials on record that the members of
the Gitanjali Park, preferred a Regular Civil Suit No.2588 of 2004 in the
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Court of the learned City Civil Judge at Ahmedabad. The said suit came
to be dismissed for nonprosecution in the year 2009. In the year 2016,
an application was filed for restoration of the suit dismissed for default
and the same is pending as on date.
3.4 In the aforesaid background, it is the case of the first informant
that he alongwith the other purchasers of the plots came to be cheated.
3.5 At the end of the investigation, the Police filed a chargesheet for
the offences noted above. The filing of the chargesheet culminated in the
Criminal Case No.1493 of 2014 pending as on date in the Court of the
learned Metropolitan Magistrate, Court No.20, Ahmedabad.
4. Mr. A.D. Shah, the learned counsel has appeared for the applicant
of the Criminal Misc. Application No.18228 of 2016 viz. Nareshbhai
Prahladbhai Modi, the original owner of the land in question. Mr. R.S.
Sanjanwala, the learned senior counsel assisted by Ms Kitty Mehta, the
learned counsel has appeared on behalf of the accused nos.4 and 5 i.e.
the partners of the Gayatri Corporation and Mr. Kishor Prajapati, the
learned counsel has appeared for the applicant of the Criminal Misc.
Application No.19007 of 2014 viz. Bavchandbhai Dahyabhai Patel who
was one of the partners of the Gayatri Corporation.
5. All the learned counsel appearing for the applicants vehemently
submitted that even if the entire case of the prosecution is believed or
accepted to be true, none of the ingredients to constitute the offence of
forgery or criminal breach of trust are spelt out. It has been vehemently
submitted that there is not a single document, which could be termed as
a false document within the meaning of Section464 of the I.P.C. It is
submitted that the case of the prosecution should be specific and clear.
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The prosecution cannot say that an offence of criminal breach of trust
punishable under Section406 of the IPC has been committed and in the
same breath, it cannot say that an offence of cheating punishable under
Section 420 of the IPC is also made out.
6. According to Mr. A.D. Shah, the learned counsel, his client as such
has no role to play so far as the allegations of cheating are concerned.
He would submit that his client handed over the possession to the
Gayatri Corporation by executing an agreement to sale and it is the
Gayatri Corporation, who thereafter started developing the land in the
name of Gitanjali Park. The land came to be plotted and the plots were
sold by Gitanjali Park. According to Mr. Shah, his client cannot be even
prosecuted for the offence of cheating under Section420 of the IPC
because it is not the case of the prosecution that any false representation
was made by the client of Mr. Shah, at any point of time, to the first
informant and other purchasers of the plots.
7. Mr. Sanjanwala, the learned senior counsel appearing for the
Partners of the Gayatri Corporation i.e. the original accused nos.4 and 5
submitted that no case worth the name could be said to have been made
out against his clients. There is no forgery; there is no cheating or a
criminal breach of trust. It is submitted that after a long delay of almost
18 years, the FIR was registered. He would submit that the first
informant and other plot holders did file a civil suit in the year 2004, but
failed to pursue diligently and the civil suit ultimately came to be
dismissed for default in 2009 and till date has not been restored.
8. Mr. Sanjanwala, the learned senior counsel very vehemently
submitted that the plot holders with their eyes wide open had entered
into the transaction and purchased the plots. They knew very well that
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there was a draft town plaining scheme introduced in the year 1987 and
the land in question was being covered under the draft town planning
scheme. To make good his submission, he placed reliance on a document
dated 05/03/1996, which is in the nature of a saledeed, AnnexureH to
the Criminal Misc. Application No.16076 of 2014.
9. Mr. Kishor Prajapati, the learned counsel appeared in the third
matter has adopted the submissions of Mr. R.S. Sanjanwala. In such
circumstances referred to above, all the learned counsel appearing for
the respective applicants submitted that there being merit in their
applications, they be allowed and the prosecution be quashed.
10. On the other hand, all the three applications have been
vehemently opposed by Mr. Sunil Agrawal, the learned counsel
appearing for the respondent no.2 – original first informant and Ms.
Thakore, the learned APP appearing for the State.
11. Ms. Thakore, the learned APP for the convenience of the Court has
prepared a chart pointing out in what manner, the transaction took
place. The chart is as under:
CHART
Original Owner Nareshbhai Modi (A1)
Revenue Survey Revenue Survey Revenue Survey
No.152A No.152B No.153
3136 sq.mtrs 25,407 sq.mtrs 17503 sq.mtrs.
Total 46,136 sq.mtrs.
12,541 sq.mtrs.
(15,000 sq.yrds)
Jivandhara Co.Op. Hsg. Society
Ltd. (proposed)
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Chairman Madhubhai Vasani
Reg. Agreement dt.31.01.1991
Jivandhara Co.Op. Hsg. Society Ltd. (proposed)
Partner Batukbhai Patel
Reg. Agreement to sale dt.28.4.1992
48,355 sq.yrds
R.S.No.152/B
15,000 sq.yrds 30,000 sq.yrds 18,355 sq.yrds
23.12.1994 31.05.1995
Orig. Owner + Jivandhara Soc. IshwarKrupa Coop Soc.(proposed)
Nareshbhai Partner Jayantibhai Dobariya
Modi Madhubhai Vasani (33,4412 sq.yrds) + [14,914 sq. yds.]
Batukbhai Patel Not Sold
Navneetrai Mulshanker Tapovan Co.op. Shefali Co.Op Hsg
Bhatt Soc. (proposed) Soc. (proposed)
(Total) (15000 sq.yrds) Jayantibhai Patel Narendrabhai
30,000 7.9.1995 5.8.1997 Kantibhai Patel
sq.yrds (9250 sq.yrds) 2.4.1998
(9250 sq.yrds)
Gitanjali Park (1) Amrishbhai
31.07.1994 (2) Deraj Babaji
Partner of Gayatri Corp. (3) Girdharbhai
Labhubhai Patel Reg. Saledeed
Baichandbhai Patel dt. 02.02.2011
175/200 sq.yards Rs.50 Lac
65 suv plots
Total Rs.84,58,000/
(5.3.1996)
12. Ms. Thakore, the learned APP very fairly submitted that the
chargesheet could not have been filed for the offence punishable under
Sections467 and 468 of the I.P.C. The learned APP submits that so far
as the prosecution is concerned, there is not a single document, which
could be said to have been forged. To put it in other words, none of the
documents on record could be termed as false documents within the
meaning of Section464 of the IPC. Ms Thakore submits that so far as the
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partners of the Gayatri Corporation are concerned, there is no more than
a primafacie case against them so far as the offence of cheating is
concerned. They all knew very well about the draft town planning
scheme as well as the final town planning scheme. Despite this, they
developed the land in the name of Gitanjali Park and sold each plot for
the amount of Rs.2,65,000/ to 65 different individuals including the
first informant. Ms. Thakore further pointed out so far as the applicant
of Criminal Misc. Application No.18228 of 2016 is concerned viz.
Nareshbhai Prahladbhai Modi, has also some role to play so far as the
offence of cheating is concerned. It has been pointed out that despite all
these developments, he sold the very same plot on 02/02/2011 to the
partners of one Jivandhara Society by a registered saledeed. The sale
deed was executed in favour of one Amrish Kantilal Raval. According to
Ms. Thakore, knowing fully well about the developments that had taken
place, the original owner could not have transferred the land once again
in the year 2011 to a third party thereby depriving the plot holders of
their legal rights.
13. According to the learned APP the document in the form of sale
deed at Page62, Annexure’H’ to the Criminal Misc. Application
No.16076 of 2014 is concerned, the same will have to be looked into by
the trial Court. In the document, there is no specific averment that
despite there being a draft town planning scheme and the land being
included in the same, the purchasers decided to purchase the plots. It is
for the applicants to lead appropriate evidence in this regard in the
course of trial to establish their defence.
14. In such circumstances referred to above, according to Ms.
Thakore, more than a primafacie case could be said to have been made
out so far as the offence punishable under Section420 of the IPC is
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concerned.
15. Mr. Agrawal, the learned counsel appearing for the first informant
very vehemently submitted that the hard earned money of his client
could be said to have been misappropriated by the accused persons in
collusion with eachother. According to Mr. Agrawal, it was a well
hatched conspiracy by all the accused persons. All the accused persons
could be said to be a part and parcel of the offence of criminal
conspiracy. The Investigating Officer has also thought fit to file
chargesheet for the offence under Section 120B of the IPC. According to
him, more than a primafacie case is made out and the prosecution
should be given a chance to prove its case in the trial.
16. 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 the prosecution against the applicants
should be quashed.
17. Having regard to the materials on record and the nature of the
allegations, I have no doubt in my mind that this is not a case of forgery.
There is not a single document on record, which could be termed as a
false document under Section464 of the IPC. To this extent, even the
State has very fairly submitted that no case of forgery is made out.
18. The offences of criminal breach of trust (Section 406 IPC) and
cheating (Section 420 IPC) have specific ingredients. In order to
constitute a criminal breach of trust (Section 406 IPC).
1) There must be entrustment with person for property or
dominion over the property, and
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2) The person entrusted :
a) dishonestly misappropriated or converted property to his
own use, or
b) dishonestly used or disposed of the property or willfully
suffers any other person so to do in violation
i) any direction of law prescribing the method in which
the trust is discharged and
ii) of legal contract touching the discharge of trust (see:
S.W.P. Palanitkar v. State of Bihar, (2002)1 SCC 241) :
(AIR 2001 SC 2960).
iii)
19. Similarly, in respect of an offence under section 420 IPC, the
essential ingredients are :
1) deception of any person, either by making a false or misleading
representation or by other action or by omission;
2) fraudulently or dishonestly inducing any person to deliver any
property, or
3) the consent that any persons shall retain any property and finally
intentionally inducing that person to do or omit to do anything
which he would not do or omit (see: Harmanpeet Singh Ahluwalia
v. State of Punjab, (2009)7 SCC 712 : (2009) Cr.L.J. 3462 (SC) )
20. Further, in both sections, mens rea i.e. intention to defraud or the
dishonest intention must be present from the very beginning or inception
without which either of these sections cannot be invoked.
21. In my view, the plain reading of the First Information Report and
the other materials on record, primafacie discloses commission of the
offence of cheating to spell out any of the aforesaid ingredients noted
above. I may only say with a view to clear a serious misconception of
law in the mind of the police as well as the courts below that if it is a
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case of the complainant that offence of criminal breach of trust as
defined under Section 405 of IPC, punishable under Section 406 of IPC,
is committed by the accused, then in the same breath it could not be said
that the accused has also committed the offence of cheating as defined
and explained in Section 415 of the IPC, punishable under Section 420
of the IPC.
22. Every act of breach of trust may not be resulted in a penal offence
of criminal breach of trust unless there is evidence of manipulating act of
fraudulent misappropriation. An act of breach of trust involves a civil
wrong in respect of which the person may seek his remedy for damages
in civil courts but any breach of trust with a mens rea gives rise to a
criminal prosecution as well. It has been held in Hart Prasad Chamaria
v. B.K. Surekha and others, reported in 1973(2) SCC 823 as under :
We have heard Mr. Maheshwarit on behalf of the appellant and
are of the opinion that no case has been made out against the
respondents under Section 420 Indian Penal Code. For the
purpose of the present appeal, we would assume that the various
allegations of fact which have been made in the complaint by
the appellant are correct. Even after making that allowance, we
find that the complaint does riot disclose the commission of any
offence on the part of the respondents under Section 420 Indian
Penal Code. There is nothing in the complaint to show that the
respondents had dishonest or fraudulent intention at the time
the appellant parted with Rs. 35.000/ There is also nothing to
indicate that the respondents induced the appellant to pay them
Rs. 35.000/ by deceiving him. It is further not the case of the
appellant that a representation was made, the respondents knew
the same to be false. The fact that the respondents subsequently
did not abide by their commitment that they would show the
appellant to be the proprietor of Drang Transport Corporation
and would also render accounts to him in the month of
December might create civil liability on the respondents for the
offence of cheating.
23. To put it in other words, the case of cheating the dishonest
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intention starts with the very inception of the transaction. But in the case
of criminal breach of trust, the person who comes into possession of the
movable property receives it legally, but illegally retains it or converts it
to his own use against the terms of the contract. Then the question is, in
a case like this, whether the retention is with dishonest intention or not.
Whether the retention involves criminal breach of trust or only a civil
liability would depend upon the facts of each case.
24. The distinction between mere breach of contract and the offence
of criminal breach of trust and cheating are fine one. In case of cheating,
it depends upon the intention of the accused at the time of inducement,
which may be judged by a subsequent conduct but for this the
subsequent conduct is not the sole test but mere breach of contract
which cannot give rise to a criminal prosecution for cheating unless
fraudulent or dishonest intention is shown right from the beginning of
the transaction i.e. the time when the offence is said to have been
committed. Therefore, it is his intention, which is the gist of the offence.
Whereas, for the criminal breach of trust, the property must have been
entrusted to the accused or he must have dominion over it. The property
in respect of which the offence after breach of trust has been committed
must be either the property of some person other than the accused or the
beneficial interest in or ownership of it must be of some other person.
The accused must hold that property on trust of such other person. But
the offence, i.e. the offence of breach of trust and cheating involve
dishonest intention but they are mutually exclusive and different in basic
concept. There is a distinction between criminal breach of trust and
cheating. For cheating, criminal intention is necessary at the time of
entrustment. In criminal breach of trust, mere proof of entrustment is
sufficient. Thus, in case of criminal breach of trust, the offender is
lawfully entrusted with the property and he dishonestly misappropriated
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the same. Whereas, in case of cheating, the offender practices fraudulent
or dishonest to induce with another person to deliver the property. In
such situation, both the offences cannot coexist simultaneously.
25. I may quote with profit a decision of the Supreme Court in the
case of Nageshwar Prasad Singh alias Sinha v. Narayan Singh, AIR
1999 SC 1480. In the said case, the allegation of the prosecution was
that an agreement was signed between the complainant respondent and
the appellant whereby some land was agreed to be sold by the appellant
to the complainants on a consideration, and allegedly a part thereof was
paid as earnest money, the balance being payable in the manner
indicated in the deed. The most important term in the deed was that
possession of the plot would stand transferred to the complainants and
possession in fact was delivered to the complainants over which they
made certain constructions. The complaint was laid on the basis that the
appellant had cheated the complainants of the sum of money they had
paid as earnest money as his subsequent conduct reflected that he was
not willing to complete the bargain for which the complainants had to
file a suit for specific performance which was pending in the civil court.
Held, that latter part of illustration (g) to Section 415, I.P.C. illustrates
that at the time when agreement for sell was executed, it could have, in
no event, been termed dishonestly so as to hold that the complainants
were cheated of the earnest money, which they passed to the appellant
as part consideration and possession of the total amount involved in the
bargain was passed over to the complainant/respondent and which
remained in their possession. Now it is left to imagine who would be
interested for dealing the matter for completing the bargain when
admittedly the complainants have not performed their part in making
full payment. The matter was, therefore, before the civil court in this
respect. The liability, if any, arising out by breaching thereof was civil in
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nature and not criminal. Accordingly, the appeal was allowed and
complaint proceedings were quashed.
26. It was further held by the Supreme Court in the case of Hridaya
Ranjan Prasad Verma v. State of Bihar, AIR 2000 SC 2341 at Pp.
234546 of para 16) as below :
“15. In determining the question it has to be kept in mind that
the distinction between, mere breach of contract and the offence
of cheating is a fine one. It depends upon the intention of the
accused at the time of inducement which may be judged by his
subsequent conduct but for this subsequent conduct is not the
sole test. Mere breach of contract cannot give rise to criminal
prosecution for cheating unless fraudulent or dishonest
intention is shown right at the beginning of the transaction,
that is the time when the offence is said to have been committed.
Therefore, it is the intention, which is the gist of the offence. To
hold a person guilty of cheating it is necessary to show that he
had fraudulent or dishonest intention at the time of making the
promise. From his mere failure to keep up promise subsequently
such a culpable intention right at the beginning, that is, when
he made the promise cannot be presumed.”
27. In All Cargo Movers (I) Pvt. Ltd. others v. Dhanesh Badarmal
Jain another, JT 2007 (12) SC 345, the Apex Court quashed a
criminal proceeding on the premise that the allegations contained in
complaint were wholly inconsistent with the pleadings in a collateral
civil proceeding. It held as follows :
“17. We are of the opinion that the allegations made in the
complaint petition, even if given face value and taken to be
correct in its entirety, do not disclose an offence. For the said
purpose, This Court may not only take into consideration the
admitted facts but it is also permissible to look into the
pleadings of the plaintiffrespondent No.1 in the suit. No
allegation whatsoever was made against the appellants herein
in the notice. What was contended was negligence and/or
breach of contract on the part of the carriers and their agent.
Breach of contract simplicitor does not constitute an offence. For
the said purpose, allegations in the complaint petition must
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disclose the necessary ingredients therefor. Where a civil suit is
pending and the complaint petition has been filed one year after
filing of the civil suit, we may for the purpose of finding out as
to whether the said allegations are prima facie cannot notice the
correspondences exchanged by the parties and other admitted
documents. It is one thing to say that the Court at this juncture
would not consider the defence of the accused but it is another
thing to say that for exercising the inherent jurisdiction of this
Court, it is impermissible also to look to the admitted
documents. Criminal proceedings should not be encouraged,
when it is found to be mala fide or otherwise an abuse of the
process of the Court. Superior Courts while exercising this power
should also strive to serve the ends of justice.”
28. In K.L.E. Society others v. Siddalingesh, (2008) 4 SCC 541, on
a similar issue, the Supreme Court quashed a criminal proceeding
labeling it to be an abuse of process of Court as the allegations contained
in the complaint ran contrary to the averments made in the petition filed
under the Industrial Disputes Act. The Apex Court held as follows :
“7. One thing is clear on reading of High Court’s reasoning that
the High Court came to the conclusion that deductions were
made without any rhyme and reason and without any basis.
That was not the case of the complainant. On the other hand, it
tried to make out a case that the deduction was made with an
object. That obviously, was the foundation to substantiate claim
of entrustment. On a close reading of the complaint it is clear
that the ingredients of Sections 403, 405 and 415 do not exist.
The statement made in the complaint runs contrary to the
averments made in the petition in terms of Section 33(C) (2).”
29. In State of Orissa v. Debendra Nath Padhi, (2005) SCC (Cri.)
415, the Supreme Court held that the High Court could take into
account materials of “unimpeachable character of sterling quality” while
exercising its inherent powers to quash a criminal proceeding and
observed as follows :
“29. Regarding the argument of accused having to face the trial
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despite being in a position to produce material of
unimpeachable character of sterling quality, the width of the
powers of the High Court under Section 482 of the Code and
Article 226 of Constitution is unlimited whereunder in the
interests of justice the High Court can make such orders as may
be necessary to prevent abuse of the process of any Court or
otherwise to secure the ends of justice within the parameters
laid down in Bhajan Lals case.
30. In Vijaya Rao v. State of Rajasthan another (2005) SCC (Cri.)
1600, the Supreme Court held that merely using expressions like
“fraudulent representation” and “malafide intention” does not give rise to
an inference that the complaint discloses the ingredients of the offence
of cheating.
31. In Hridaya Ranjan Prasad Verma others v. State of Bihar
another (2000) SCC (Cri.) 786, the Supreme Court succinctly laid down
the distinction between breach of contract in one hand and the offence
of cheating in the other.
“15. In determining the question it has to be kept in mind that
the distinction between mere breach of contract and the offence
of cheating is a fine one. It depends upon the intention of the
accused at the time to inducement which may be judged by his
subsequent conduct but for this subsequent conduct is not the
sole test. Mere breach of contract cannot give rise to criminal
prosecution for cheating unless fraudulent or dishonest
intention is shown right at the beginning of the transaction,
that is the time when the offence is said to have been committed.
Therefore it is the intention which is the gist of the offence. To
hold a person guilty of cheating it is necessary to show that he
had fraudulent or dishonest intention at the time of making the
promise. From his mere failure to keep up promise subsequently
such a culpable intention right at the beginning, that is, when
he made the promise cannot be presumed.”
32. In Anil Kumar Bose v. State of Bihar, (1974) SCC (Cri.) 652, the
Supreme Court held that the mere failure to perform a duty or observe
the rules of procedure may be an administrative lapse or any error of
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judgement but cannot be equated with a dishonest intention or cheating.
33. Criticizing the institution of malicious and frivolous criminal
proceeding against the individuals, the Supreme Court in PEPSI Foods
Ltd. another v. Special Judicial Magistrate Ors., (1998) SCC (Cri.)
1400, held as follows :
“28. Summoning of an accused in a criminal case is a serious
matter. Criminal law cannot be set into motion as a matter of
course. it is not that the complainant has to bring only two
witnesses to support his allegations in the complaint to have the
criminal law set into motion. The order of the magistrate
summoning the accused must reflect that he has applied his
mind to the facts of the case and the law applicable thereto. He
has to examine the nature of allegations made in the complaint
and the evidence both oral and documentary in support thereof
and would that be sufficient for the complainant to succeed in
bringing charge home to the accused. It is not that the
Magistrate is a silent spectator at the time of recording of
preliminary evidence before summoning of the accused.
Magistrate has to carefully scrutinise the evidence brought on
record and may even himself put questions to the complainant
and his witnesses to elicit answers to find out the truthfulness of
the allegations or otherwise and then examine if any offence is
prima facie committed by all or any of the accused.”
34. In B.Suresh Yadav v. Sharifa Bee another, JT (2007) 12 SC
341, the Supreme Court again highlighted the distinction between a
mere breach of contract and the offence of cheating.
35. In Inder Mohan Goswami another v. State of Uttaranchal
others, (2007)12 SCC 1, the Supreme Court analysed inherent powers
of the High Court under Section 482 as follows :
23. This court in a number of cases has laid down the scope and
ambit of courts’ powers under section 482 Cr.P.C. Every High
Court has inherent power to act ex debito justitiae to do real
and substantial justice, for the administration of which alone it
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(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under section 482 Cr.P.C. though wide
have to be exercised sparingly, carefully and with great caution
and only when such exercise is justified by the tests specifically
laid down in this section itself. Authority of the court exists for
the advancement of justice. If any abuse of the process leading to
injustice is brought to the notice of the court, then the Court
would be justified in preventing injustice by invoking inherent
powers in absence of specific provisions in the Statute.”
36. I am of the view that more than a primafacie case could be said to
have been made out against the partners of the Gayatri Corporation i.e.
the applicants of the Criminal Misc. Application No.16076 of 2014 and
Criminal Misc. Application No.19007 of 2014 are concerned. The only
relief, they are entitled to seek, is the quashing of a part of the
prosecution so far as the offence of forgery and criminal breach of trust
is concerned. I am of the view that so far as the offence under Section
420 of the IPC is concerned, the applicants should be put to trial. At this
stage, let me consider whether the original owner i.e. the applicant of
Criminal Misc. Application No.18228 of 2016 could be said to have
committed the offence punishable under Section420 of the IPC. So far
as this part of the allegations is concerned, the learned APP appearing
for the State and Mr. Agrawal, the learned counsel appearing for the first
informant submitted that in the year 2011 with all the developments on
record the applicant could not have transferred the land in favour of one
Amrish Kantilal Raval through the partners of the Jeevandhara Society. I
put a pin pointed question to Ms. Thakore, the learned APP as well as
Mr. Agrawal, the learned counsel appearing for the first informant that
whether the transaction of the year 2011 is a part and parcel of the
present prosecution or not. It appears that it is not. What steps the
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purchasers took thereafter is not known. Whether he is aggrieved in any
manner is also not known. The chargesheet does not contain his
statement. It is true that the land has been transferred, but it does not
seem to be the subject matter of the present prosecution. Mr. Agrawal
may be right in his submission that such further transferred has affected
the rights of his client, but in the absence of that part of the transaction
being a part and parcel of the present prosecution, it is difficult for me to
say that the same would constitute an offence under Section420 of the
IPC so far as the original owner viz. Nareshbhai Prahladbhai Modi is
concerned.
37. At this stage, let me deal with the vociferous submission of Mr.
Sanjanwala as regards gross an inordinate delay in lodging the FIR.
There is no doubt that the FIR was lodged after a long delay. If the first
informant and others thought fit to file a civil suit in the year 2004, they
might as well as could have registered the FIR at that point of time itself.
It is also true that in the year 2009, when the suit came to be dismissed
for default, they did not deem fit to register the FIR and ultimately, the
FIR was registered in the year 2014.
38. Having reached to the conclusion that there is a primafacie case
against the applicants so far as the offence of cheating is concerned,
should I quash the FIR only on the ground of delay in lodging the same.
39. In the aforesaid context, I may quote an order passed by this Court
in the case of Chaudhari (Loh) Valjibhai Parthibhai Others Vs. State
of Gujarat Another in Criminal Misc. Application No.9107 of 2015;
decided on 22/03/2017.
11 Should this Court quash the F.I.R. by accepting the
submission of Mr. Desai that there has been a gross delay of ten
years in registering the F.I.R. It is true that the prompt and
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early reporting of the occurrence of the informant with all its
vivid details gives an assurance regarding the truth of its
version. The first informant in a given case also owes an
explanation to explain the delay. The delay in lodging the F.I.R.
would not make the case of the first informant improbable when
such delay is properly explained. In the case at hand, the first
informant has said in so many words that no sooner it came to
their notice that false documents have been created, they
thought fit to register the F.I.R. It is true that before the
registration of the F.I.R., they did initiate proceedings before the
revenue authority known as R.T.S.
12 Today, I am confronted with a situation where there is a
clearcut report of the handwriting expert stating that the
signatures are forged, and on the other hand, a strong assertion
on the part of the applicants that there is a gross delay of
almost a decade in registering the F.I.R.
13 The general rule of criminal justice is that a crime never dies.
The principle is reflected in the wellknown maxim nullum
tempus aut locus occurrit regi (lapse of time is no bar to Crown
in proceeding against offenders). In this context, I may quote the
observations of the Supreme Court in the case of Japani Sahoo
vs. Chandra Sekhar Mohanty [AIR 2007 SC 2762] as under:
14. The general rule of criminal justice is that “a crime
never dies”. The principle is reflected in the wellknown
maxim nullum tempus aut locus occurrit regi (lapse of time
is no bar to Crown in proceeding against offenders). The
Limitation Act, 1963 does not apply to criminal proceedings
unless there are express and specific provisions to that effect,
for instance, Articles 114, 115, 131 and 132 of the Act. It is
settled law that a criminal offence is considered as a wrong
against the State and the Society even though it has been
committed against an individual. Normally, in serious
offences, prosecution is launched by the State and a Court of
Law has no power to throw away prosecution solely on the
ground of delay. Mere delay in approaching a Court of Law
would not by itself afford a ground for dismissing the case
though it may be a relevant circumstance in reaching a
final verdict.
14 In the case of Sirajul and others vs. State of U.P. [AIR
2015 SC (Supp) 1875, the same principle i.e. a crime never
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dies has been reiterated observing as under:
9. On the other hand, respondent No. 2complainant
submitted that bar of limitation does not apply beyond the
statutory bar under Section 468, Cr.P.C. A crime never dies.
A criminal offence is a wrong against the society even
though committed against an individual and thus the
prosecution cannot be thrown out merely on the ground of
delay. In support of this submission, reliance has been
placed in Japani Sahoo v. Chandra Sekhar Mohanty
[(2007) 7 SCC 394 : (AIR 2007 SC 2762].
15 Thus, it is evident that the question of delay in launching the
criminal prosecution may be a circumstance to be taken into
consideration in arriving at the final decision. But, it cannot
itself be a ground for quashing the F.I.R.
16 More so, as observed by the Supreme Court in the case of
Noida Entrepreneurs Association vs. Noida and others [AIR
2011 SCC 2112], the issue of limitation has to be examined in
light of the gravity of the charge.
40. For the forgoing reasons, the Criminal Misc. Application No.18228
of 2016 is allowed. The proceedings of Criminal Case No.1493 of 2014
pending before the Court of the learned Metropolitan Magistrate, Court
No.20, Ahmedabad, are hereby quashed.
So far as the two connected applications are concerned i.e.
Criminal Misc. Application No.16076 of 2014 and Criminal Misc.
Application No.19007 of 2014 are concerned, they allowed in part. The
prosecution is quashed so far as the offence of forgery and criminal
breach of trust is concerned. However, I am of the view that the
applicants should be put to trial so far as the offence of cheating under
Section420 of the IPC is concerned.
Rule is made absolute to the aforesaid extent. Direct service is
permitted.
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