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CR.MA/5938/2006 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 5938 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
MUKESH
RAMANLAL GOKAL & 1 - Applicant(s)
Versus
THE
STATE OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance :
MR
PM THAKKAR, Sr. Advocate with MR DM THAKKAR
for Applicant(s) : 1 -
2.
PUBLIC PROSECUTOR for Respondent(s) : 1,
NANAVATI ASSOCIATES
for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 30/09/2011
ORAL
JUDGMENT
1. This
application u/s. 482 of the Criminal Procedure Code has been
preferred seeking the relief to quash the criminal complaint being
C.R. No. I-481/2004 registered with Shaherkotda Police Station and
consequential proceedings initiated in pursuance of the filing of
said complaint.
2. The
petitioner no.1 is the Proprietor of M/s. Hallmark Industries, which
is a proprietary firm, having its Office at Mumbai, whereas,
petitioner no.2 is the son of petitioner no.1 and is involved in the
business in the capacity of Manager of the proprietary firm.
Respondent no.2 is a Public Ltd. Company having its Office at
Ahmedabad and engaged in the business of manufacture of fabrics. In
early 2004, a business agreement was arrived at between the
petitioners and respondent no.2-Company, in pursuance of which the
petitioners placed Purchase Orders with respondent no.2-Company for
the supply of fabrics.
3. It
is the case of the petitioners that respondent no.2-Company did not
supply goods on time, on account of which the petitioners had to
incur huge financial loss. Therefore, the petitioners raised debit
and credit notes on respondent no.2-complainant. However, respondent
no.2-Company filed the complaint in question against the petitioners
u/s.420, 406 and 114 of Indian Penal Code. Being aggrieved by the
same, the petitioners have preferred the present petition u/s.482 of
the Code for quashing of the impugned complaint.
4. Mr.
PM Thakkar learned senior counsel appearing with Mr. DM Thakkar for
the petitioners submitted that no ingredients of the offence alleged
are made out against the petitioners, even if the allegations are
taken at its face value. He submitted that the dispute between the
parties is purely of a civil nature. He took me through the
Memorandum of Understanding dated 29.12.2004 entered into between the
petitioners and respondent no.2-Company pursuant to the arrest of the
petitioners. He, therefore, submitted that the complaint in question
deserves to be quashed since it is nothing but, a sheer abuse of the
process of law.
5. Mr.
Nanavaty learned counsel for respondent no.2-original complainant
submitted that the petitioners committed criminal breach of trust by
not abiding by the terms an conditions of agreement entered into
between them. The petitioners did not make payment of the entire
amount in spite of repeated requests and therefore, respondent no.2
had no other alternative but, to file the complaint in question. He,
therefore, submitted that this Court may not exercise its inherent
powers in favour of the petitioners by quashing the complaint.
Learned APP adopted the submissions made by Mr. Nanavaty on behalf of
respondent no.2-Company.
6. Heard
learned counsel for the parties and perused the documents on record.
It appears from the complaint that the petitioners had allegedly not
made the entire payment towards the goods delivered by respondent
no.2-Company. In pursuance of the said complaint, the petitioners
were arrested and after their arrest, a settlement was arrived at
between the parties, which was reduced into writing in the form of
“Memorandum of Understanding” dated 29.12.2004. As per
the terms of the said M.o.U., the petitioners made part-payment of
the outstanding amount claimed by respondent no.2-Company and for the
balance amount, it was mutually agreed between them that an
Arbitrator shall be appointed, who shall adjudicate the same. The
parties agreed that the decision of such Arbitrator shall be final
and binding to both. The arbitration proceedings are pending between
the parties.
7. In
my opinion, the dispute between the parties is of a purely civil
nature arising out of a business agreement and in connection with
which arbitration proceedings are also pending. If the complaint is
permitted to sustain, then it would amount to sheer abuse of the
process of law. In State
of Haryana and others v. Bhajanlal and others, AIR 1992 SC 604 [1992
Supp (1) SCC 335], the Apex Court held in Paragraphs
102 and 103 as under:
“The
following categories of cases can be stated by way of illustration
wherein the extraordinary power under Article 226 or the inherent
powers under Section 482 CrPC can be exercised by the High Court
either to prevent abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be possible to lay down
any precise, clearly defined and sufficiently channelized and
inflexible guidelines or rigid formula and to give an exhaustive list
of myriad kinds of cases wherein such power should be exercised;
Where
the allegations made in the first information report or 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 a case against the accused.
Where
the allegations in the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under Section 156(1)
of the Code except under an order of a Magistrate within the purview
of Section 155(2) of the Code.
Where
the uncontroverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the
commission of any offence and make out a case against the accused.
Where,
the allegations in the FIR do not constitute a cognizable offence
but constitute only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
Where
the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent persons can
ever reach a just conclusion that there is sufficient grounds for
proceeding against the accused.
Where
there is an express legal bar engrafted in any of the provisions of
the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings
and/or where there is a specific provisions in the Code or the
concerned Act, providing efficacious redress for the grievance of
the aggrieved party.
Where
a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
8. In
the present case, even if the allegations made in the complaint are
taken at its face value and accepted in their entirety, they do not
constitute any offence. Keeping in mind the principle laid down by
the Apex Court in the aforesaid decision and the facts of the present
case, I am of the opinion that the impugned complaint cannot be
sustained in the eyes of law and deserves to be quashed and set
aside.
9. Consequently,
the application is allowed. The criminal complaint being C.R. No.
I-481/2004 registered with Shaherkotda Police Station and
consequential proceedings initiated thereto, are quashed and set
aside. Rule is made absolute.
[K.
S. JHAVERI, J.]
Pravin/*
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