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CR.MA/15100/2005 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 15100 of 2005
For
Approval and Signature:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
=========================================================
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 ?
=========================================================
BHUPENDRABHAI
FULABHAI PATEL & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI
for
Applicant(s) : 1 - 2.
MR KP RAVAL, ADDITIONAL PUBLIC PROSECUTOR
for Respondent(s) : 1,
MR BS PATEL for Respondent(s) : 2,
MRS
RANJAN B PATEL for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 21/04/2011
ORAL JUDGMENT
Heard learned advocates
for the parties. The petitioners, who have been named as accused in
the First Information Report being FIR CR No.I-500 of 2005
registered with Makarpura Police Station, Dist. Vadodara on
18.12.2005 for the offences punishable under Sections 380, 420, 468,
471 and 120B of the Indian Penal Code, have approached this Court
invoking provisions of Section 482 of the Criminal Procedure Code
for quashing of said FIR on the ground that the lodging of said
complaint is nothing but sheer abuse of process of Court.
The facts in brief
leading to filing of this petition are required to be set out as
under:-
It is the case of the
petitioners herein that the original complainant happens to be a
partner and administrator of M/s. J.R.Construction, dealing with
construction and land business. The complainant on account of his
relationship with the present petitioner No.1 requested him to act
as mediator in the property dispute for which he was to receive
remuneration by way of commission. The complainant has described the
present petitioner No.1 as land-broker (for sake of convenience the
Court would refer petitioner No.1 as ‘broker’). It is the case of
the complainant that the petitioner No.1 happens to be land-broker
and thus had been frequenting to his office alongwith petitioner
No.2. The complainant has alleged that on account of the business
relationship between them the petitioner used to visit their office
and taking advantage of this relationship he stole signed blank
cheque which complainant used to keep in the drawer for the staff
member and other partners to meet the expenses arising out of the
exigency. The said signed blank cheque was got filled in by the
petitioner No.2 i.e. accused No.2 and in conspiracy to defraud and
deceive the complainant, it was deposited in the bank as if it was
drawn by the complainant himself for an amount of Rs.14 lacs in
favour of the accused petitioner No.1 hereinabove. The said
complaint is filed on 18.9.2005 and it is indicated therein that the
offence is said to have been committed on 27.9.2004 or at any time
prior thereto. The offence is alleged to have been committed
punishable under Sections 380, 420, 468, 471 and 120B of the Indian
Penal Code.
The petitioners have
averred in this petition that the lodgment of the complaint impugned
in this petition is an attempt to create a defence and counter blast
against the complaint filed before the competent Court under the
provisions of the Negotiable Instruments Act, 1981 (for sake of
convenience the Court would refer Negotiable Instrument Act, as ‘N.
I. Act’). The petitioner No.1 was entitled to receive the amount of
Rs.14 lacs minus amount of Rs.3,50,000/- which he was to pay as a
consideration for the flat which was given to him under the
Negotiable Instrument Act complaint. This complaint under N.I.Act
came to be filed on 15.12.2004 and after verification the Court
issued process on the very same day. On account of this complaint
the accused in the said complaint lodged FIR roping in the present
petitioner No.2 as accused on a false allegation of stealing of
cheque and got up story of writing cheque etc.
The learned advocate for
the petitioners contended that the factum of bouncing of cheque
belonging to the complainant is not disputed. The respondent –
ori. complainant did not reply to the notices issued under N.I.Act
calling upon the respondent No.2 to pay the amount mentioned in the
cheque. The petitioners have also produced one notice dated
13.1.2005 calling upon the respondent to verify his part of contract
failing which the petitioner No.1 would be constrained to move
appropriate Court. It is, at this stage, required to be noted that
the notice which is required to be issued under the provisions of
N.I.Act is not produced on record alongwith this petition. The
petitioners have averred in the petition that the respondent No.2
appeared before the Court and pleaded not guilty as per Ex.8
document which is produced at page-34 in the petition. The learned
advocate appearing for the petitioners submitted that thus it was a
case essentially filed for harassing and exerting pressure upon the
petitioners.
The learned advocate
appearing for the respondent No.2 contended that the respondent No.2
has also filed a petition being Misc. Criminal Application No.14752
of 2006 which is tagged alongwith this matter wherein this
respondent has challenged the complaint filed by the present
petitioner No.1 under the provisions of N.I.Act on the ground that
the said complaint on the face of it did not disclose commission of
offence and, therefore, the same is required to be quashed. The
complaint lodged by the respondent No.2 in the form of FIR CR
No.I-500 of 2005 on its plain reading would indicate that the
offence as alleged is disclosed and under the established principle
of law when the quashment of complaint is prayed the Court is
required to see the complaint and come to the conclusion whether
mere reading of averments in the complaint are sufficient to
disclose commission of offence or likelihood of commission of
offence and if the averments are capable of bringing home the guilt
on the part of the accused on account of disclosure of appropriate
ingredients constituting the offence, then the Court under Section
482 of the Criminal Procedure Code may not quash the complaint. In
the instant case, the glaring discrepancies in the Negotiable
Instrument Act complaint as well as in this petition are required to
be noticed which would go to show that the complainant i.e. present
respondent No.2 is really aggrieved by the incident and, therefore,
the investigation which is likely to proceed may be permitted to
proceed and taken to its logical end.
The learned advocate for
the respondent No.2 further submitted that the complaint under
N.I.Act is case of the complainant and as per his own submission as
it is apparent from the negotiable instrument complaint that the
cheque came to be handed over to him on 4.6.2003 and thus it can be
said that the cheque was drawn on 4.6.2003 and thereafter it was
presented in the bank beyond the time limit of six months and,
therefore, even from that angle also the version of the present
respondent No.2 in the FIR would get support and it will be
therefore all the more essential that the FIR being CR No.I-500 of
2005 be permitted to be investigated appropriately. The
complainant’s say in the negotiable instrument complaint need not be
ignored or brushed aside as the complainant himself has given the
version which would immediately fail and not meet the test of
probability. Hence, the complaint may not be quashed.
The Court has heard
learned advocates for the parties and perused the complaint impugned
in this petition as well as the complaint impugned in the other
petition filed by the respondent wherein he is the petitioner. The
Court is of the view that the factum of cheque being stolen and is
likely to be misused and is being misused is reported for the first
time by lodging the FIR in question only on 18.9.2005 whereas the
cheque in question is said to have been stolen in the very same FIR
on or before 27.9.2004. This aspect is required to be viewed from
the fact that the N.I.Act complaint is filed wherein the competent
Court has, in fact, issued process after recording the verification
and even the accused i.e. present respondent No.2 has pleaded not
guilty that has also been recorded. As averments are made in the
petition the present petitioner No.1 has filed an affidavit in the
proceeding of Criminal Misc. Application No.14752 of 2006 in the
form of his version which is also submitted on 17.8.2006 and
thereafter on seven occasions adjournment was sought by the
respondent No.2 and or his advocate. The affidavit indicates that on
number of occasions date was sought. The respondent No.2 as per his
own say is a businessman in the business of construction and,
therefore, one cannot ignore the fact that importance of signed
blank cheque is not understood by him. The version in the complaint
and the time of filing complaint impugned in this petition are
capable of the fact that the notice under N.I.Act was issued way
back on 25.10.2004 itself and the fact that the flat in question is
said to have been given to the present petitioner No.2 by the
respondent No.2 indicates that the complaint is not capable of
inspiring any confidence and rather it appears to be filed with a
view to exert undue pressure upon the present petitioner Nos.1 and
2. The inherent improbability as it is apparent from the version of
the complainant – respondent No.2 from the FIR is sufficient
to warrant its quashment as the peculiar facts and circumstance of
the case are strong enough to come to only one conclusion that the
complaint was filed with a view to exert pressure as the respondent
No.2 was facing the complaint under N.I.Act for an amount of Rs.14
lacs and, therefore, the complaint impugned being FIR CR No.I-500 of
2005 is required to be quashed and it is accordingly quashed. Rule
is made absolute. No order as to costs.
(S. R.
BRAHMBHATT, J.)
kks
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