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CR.MA/8876/2009 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 8876 of 2009
With
CRIMINAL
MISC.APPLICATION No. 8881 of 2009
With
CRIMINAL
MISC.APPLICATION No. 11388 of 2009
With
CRIMINAL
MISC.APPLICATION No. 11448 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
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 ?
=========================================================
HEMABEN
MANESH CHUDGAR - Applicant(s)
Versus
VASUDEV
PITAMBERDAS ALWANI & 1 - Respondent(s)
=========================================================
Appearance
:
MR
YATIN OZA with MR SATYAJIT SEN
for
Applicant(s) : 1,
MR BB GOGIA for Respondent(s) : 1,
MR KP
RAVAL, APP for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 24/02/2010
CAV
JUDGMENT
1. These
petitions arise out of common complaint having been heard together
are disposed of by this common order.
2. All
petitioners seek quashing of criminal case being M.Case No.53/2009
dated 27th March 2009.
3. Facts
as stated in Criminal Miscellaneous Application No.8876 may be
referred to.
4. The
complaint is lodged against the Directors of one Majestic Holiday
Ltd. whose names are not disclosed and other three accused namely
Shabnam Arora, Kinjal Shah and Ritesh Thakkar. Criminal
Miscellaneous Application Nos.8876/2009, 8881/2009 and 11448/2009
have been filed by Directors of the said Company namely Mrs. Hemaben
Chudgar, Mr. Mitesh Chudgar and Mr. Manesh Chudgar respectively.
Criminal Miscellaneous Application No.11388/2009 is filed by Kinjal
Tushar Shah. It is the case of the Directors that they have never
visited Gandhidham and have never met the complainant. He has,
therefore, wrongly roped them in the said complaint. These
petitioners pray for quashing of the complaint on various grounds.
In
the complaint in question, complainant has stated interalia that the
complainant was persuaded by said Shabnam Arora, Kinjal Shah and
Ritesh Thakkar who were the office bearers of the said Company to
become a ‘time share member’ by holding out various promises. It was
promised to him that upon becoming such a member, for 30 years, two
adults and two children could enjoy Five Star facility in India and
abroad for 14 days every year. Persuaded by such attractive
promises, complainant paid Rs.50,000/- for booking his membership.
He was promised that if he is not satisfied, the said amount will be
returned to him. After becoming the member in the said scheme, he
was given vouchers for stay at hotel JP Palace at Agra in November,
2006. In February 2007, complainant wanted to avail of the said
facility. He was promised that his booking in the said hotel is
confirmed. Before leaving for Agra he was, however, informed that
the booking has been cancelled and he may make his own arrangement
and the Company will pay Rs.12,000/- by way of reimbursement.
Thereafter, in May 2007, he wanted to make hotel bookings at
Kodaikanal, Ooty and Munnar. He was, however, told that he must pay
Rs.3,700/- for such bookings only after which request can be
processed. He stayed at Ooty, Kodaikanal and Munnar for a period of
7 days but the hotel was not upto his standards and was very far from
the city. Ultimately on 04.08.2007, complainant went to the head
office of the Company at Gandhidham and met accused No.3 i.e.
Shabnam Arora and told her that he wishes to cancel the agreement for
which he may be returned his Rs.50,000/-. He was given false
promises. Amount was, however, not returned. The complainant later
on found that accused No.3 has got married and left the Company and
the Company’s office at Gandhidham has been closed down. According to
the complainant, Kinjal Shah, accused No.4 also used to hold out
promises. He had therefore committed offences punishable under
Sections 406, 420 read with Section 114 of Indian Penal Code.
Case
of the petitioners, however, is quite different. They contend that
the petitioner had to pay a total of Rs.1,59,000/- towards
membership. He had paid only Rs.50,000/- initially and thereafter
did not pay remaining amount. It was open for the Company under the
agreement, therefore, to cancel the membership and to forfeit the
amount. Only to pressurize the Company to return his Rs.50,000/-, he
has filed a false criminal case. He was given complimentary coupons
to visit JP Palace Hotel at Agra which had to be availed of within
three months.
5. On
the basis of above materials on record, I have heard learned
advocates appearing for the parties. Having considered the
submissions, it appears that admittedly there was an agreement
between the complainant and the Company. Complainant had paid
Rs.50,000/- as a part-payment for becoming time share member of the
Company. As per his own account, he had at one time availed of
facility at Ooty, Munnar and Kodaikanal. He was, however, not
satisfied with the standard of the hotels. Admittedly he had not
paid remaining amount of Rs.1,09,000/- which was part of the
agreement.
6. Whoever
be at fault in such misunderstanding between the parties, it is clear
that this is clearly a case of civil dispute and no criminal
liability would arise. Even as per the complaint, main thrust of
allegations are against Shabnam Arora who is not before this Court.
None of the other accused had held out any promise to the
complainant. Admittedly, Directors of the Company have never met the
complainant. Question of their holding out any promises false or
otherwise, therefore, would not arise. Complainant has thus roped in
the Directors only with a view to pressurizing the Company.
Permitting further investigation and trial of such a complaint would
amount to abuse of process of law.
7. Under
the circumstances, above mentioned complaint is quashed qua the
petitioners in these petitions. Rule is made absolute.
(Akil
Kureshi, J.)
menon
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