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CR.MA/78320/2000 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 783 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.R.VORA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
RAJUBHAI
@ RAJESHBHAI VALLABHBHAI KUNDARIA (PATEL)
Versus
STATE
OF GUJARAT & ANR
=========================================
Appearance :
MR
YOGESH S LAKHANI for Applicant
MR L.B. DABHI
APP for Respondent No. 1
MR CL SONI for Respondent
No.2
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
Date
: 22/08/2008
CAV
JUDGMENT
1. Present
petition is preferred by original accused of `M’ Case No. 62 of
1999, to quash the said case, pending before the Judicial
Magistrate, First Class, at Dhoraji, exercising powers by this Court
under Section 482 of the Code of Criminal Procedure.
2. As
per brief facts of the case, present respondent No.2 – Vrujlal
Gordhanbhai Dhaduk, presented a private complaint before Judicial
Magistrate, First Class, against the petitioner for the offences
punishable under Sections 420 and 406 of the Indian Penal Code. It
was alleged in the complaint that accused petitioner was truck
driver of the truck bearing Regn. No. GJ-3-T-4024 owned by the
complainant respondent No.2 and that truck was handed over to the
petitioner as a driver and who had taken the truck on 01st
of October, 1999, for 15 days at Bhopal and the petitioner was to
return at Dhoraji, on 16th of October, 1999. Complainant
and his brother inquired about the petitioner as he did not return
to Dhoraji in time, but whereabouts of the petitioner, according to
allegation, were not available and his wife was evasive.
Ultimately, complainant respondent No.2 came to know that the
petitioner was in habit of gambling and since he lost in gambling,
he had sold the said truck to somebody, which was worth of Rs. 4
lacs and, hence, complaint for the offences punishable under Sections
420 and 406 of the Indian Penal Code. On 29th of October,
1999, learned Magistrate, First Class, Dhoraji, forwarded this
complaint to the Police Sub-Inspector, Patanvav Police Station, for
investigation under Section 156(3) of the Code of Criminal Procedure
and to report and, hence, this petition for quashing the said
complaint.
3. Learned
Advocate Mr. Harnish Darji for learned Advocate Mr. Y.S. Lakhani
for the petitioner, learned Advocate Mr. C.L. Soni for original
complainant respondent No.2 and learned APP Mr. L.B. Dabhi for
the respondent No.1 State were heard at length.
4. Learned
Advocate for the petitioner argued that the theory, which was
advanced by the complainant is falsified by the statutory record as
certificate issued by RTO Office, copy of which is produced on
record, denotes that the said truck was sold even on 6th
of July, 1999 to one person named as Jayeshbhai Chaturbhai Patel
and necessary entries are made in RTO records. It was submitted that
the petitioner had partnership with the complaint in respect of
this truck and it was agreed that the petitioner should pay all the
installments of the finance as the truck was purchased in the
name of the complainant by taking loan from finance and accordingly
the petitioner has paid up all the installments to the finance
company and got released the truck from the finance. The
petitioner, as being owner of the said truck, sold the truck on 09th
of July, 1999 and, therefore, the question of taking the truck by
the petitioner as a driver on 1st of October, 1999 would
not arise. It is also submitted that the petitioner is not the
truck driver, but he is doing the business of contractor and supplier
of the material for construction and petitioner has many vehicles in
the name of his family, and as such, he had no occasion to serve as
driver. It is submitted that, therefore, the complaint is the
abuse of process of law and is required to be quashed.
5. As
against that, learned Advocate Mr. C.L. Soni for the respondent
No.2 complainant submitted that the truck stood in the name of
the complainant respondent No.2, which is evident from the ARTO
record and owned by respondent No.2. Accused was never the owner of
the truck and he could not have sold the truck to third party. It
is submitted that this truck was financed by Ashok Leyland and the
receipts which are produced on record of this petition are of Riddhi
Finance, which is a matter of investigation, and at this stage,
when investigation is pending, no interference is required by this
Court exercising extraordinary powers. Otherwise also, it is not
the case of the accused petitioner that the complainant was not
the owner of the truck. Learned Advocate for the respondent No.2
relied upon a decision of the Apex Court in the matter of STATE OF
HARYANA AND ORS vs. BHAJANLAL AND ORS., as reported in 1992 Supp
(1) SCC 335.
6. While
learned APP Mr. L.B. Dabhi submitted that there is grievance of
the offences having been committed by the accused, which is still
to be investigated and, hence, interference, at this stage, may
not be required under extraordinary powers of this Court.
7. Section
– 482 of the Criminal Procedure Code, 1973, confers sufficient
and independent powers on the High Curt alone to pass orders ex
debito justitiae in cases where
grave and substantial injustice has been done or where the process
of court has been seriously abused. It is also well settled that
the inherent powers under Section 482 of the Code of Criminal
Procedure can be exercised only when no other remedy is available to
the litigant and not where the specific remedy is provided in the
statute. It is also true that the power, 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 inquiry as to the
reliability of genuineness or otherwise of the allegations made in
the complaint/FIR, and that the extraordinary or inherent powers,
do not confer any arbitrary jurisdiction on the court to act
according to its whim or caprice. At the same time, wherever it is
found by the court, ex facie, that there is abuse of process of
court and that to secure the ends of justice, it is necessary to
exercise the powers under Section 482 of the Code of Criminal
procedure, the court must exercise such powers, wherein it is found
that the allegations made in the complaint are so absurd and
inherently improbable, on the basis of which, a prudent man can
reach to a just conclusion that there is no sufficient ground for
proceeding against the accused. In such cases, when complaint does
not make out any case against the accused, if the powers are not
exercised under Section 482 of the Criminal Procedure Code by the
High Court, such accused will have to undergo the agony of a
criminal trial, which would itself amount of abuse of process of
law.
8. While
going through the facts of this case, what is transpired from the
record is that, the allegation is in respect of misappropriation
and causing cheating towards complainant by the accused. What is
stated in the complaint by respondent No.2 is all together against
the statutory record and, therefore, is improbable. True it is
that, the name of the respondent No.2 complainant appears in
RTO book of truck bearing No. GJ-3-T-4024, at the same time,
the same record discloses that this truck was transferred on 6th
of July, 1999 to one Jayeshbhai Chaturbhai Patel. Jayeshbhai
Chaturbhai Patel has filed an affidavit to the effect that he had
purchased this truck from present petitioner original accused on
09th of July, 1999. The petitioner has also submitted on
record receipts of the installments paid to Riddhi Finance Company
in respect of the said truck. Now, these facts of the record makes
it improbable that as a driver of the truck, petitioner might have
taken the truck on 1st of October, 1999 and might have
sold. Therefore, without embarking upon any inquiry, it is
crystal clear that the theory advanced in the complaint is so
improbable that no prudent man would reach to the conclusion that
there are grounds to proceed against the accused. No explanation
at all is found in the complaint as to diametrically opposite
facts contained in the statutory record. In this view of the
matter, this Court can come safely to the conclusion that there are
no grounds at all to proceed against the accused even from the
contents of the complaint and, hence, the complaint being abuse of
process of the court, is required to be quashed and, hence, the
following order is passed :
This
Criminal Misc. Application is allowed. Criminal Inquiry Case No. 62
of 1999 and `M’ Case No. 62 of 1999 pending before the Judicial
Magistrate, First Class, at Dhoraji, as filed by the respondent
No.2 against the present petitioner, for the offences punishable
under Sections 420 and 406 of the Indian Penal Code, is directed to
be quashed along with the orders passed by learned Judicial
Magistrate, First Class, Dhoraji, to forward the said complaint to
the Police Sub-Inspector, Patanvav Police Station, to investigate
under Section 156(3) of the Code of Criminal Procedure. Rule
made absolute accordingly.
(J.
R. VORA, J.)
pnnair
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