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CR.MA/9525/2004 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9525 of 2004
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
======================================
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 ?
======================================
JAISINBHAI
BHAGWANBHAI VALA - Applicant
Versus
THE
STATE OF GUJARAT & 1 - Respondents
======================================
Appearance :
MS
AVANI S MEHTA for the Applicant.
MR JK SHAH, APP for Respondent
No.1.
MR HARIN P RAVAL for Respondent
No.2.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 07/10/2011
ORAL
JUDGMENT
1. The
present Criminal Misc.Application under Section 482 of the Code of
Criminal Procedure has been preferred by the petitioner –
original accused to quash and set aside the impugned FIR being
C.R.No.I-116 of 2004 registered with Kodinar Police Station filed by
respondent No.2 herein for the offences punishable under Sections 406
and 465 of the Indian Penal Code.
2. It
appears that respondent No.2 herein – original complainant has
lodged the impugned FIR being C.R.No.I-116 of 2004 with Kodinar
Police Station against the petitioner, who was at the relevant time
Returning Officer for conducting the election of Kodinar Taluka
Cooperative Banking Union Limited and who was General Manager of the
said Union, for the offences punishable under Sections 406 and 465 of
the Indian Penal Code alleging inter alia that when the voters’ list
was published by the petitioner as Returning Officer, it was found
that name of the original complainant was deleted from the voters’
list and by creating forged documents, the Share Certificate has been
transferred in the name of other person. It was also alleged that
similarly Share Certificate of Mohammed K. Patel was also transfered
by creating forged documents. Being aggrieved by and dissatisfied
with the impugned FIR, the petitioner has preferred the present
application under Section 482 of the Code of Criminal Procedure.
3. Ms.Avni
Mehta, learned advocate appearing on behalf of the petitioner has
submitted that the petitioner has not committed any offence as
alleged. It is submitted that there was no transfer of Share
Certificate of the original complainant as alleged and even that of
Mohammed G. Patel. It is submitted that even still the impugned
complaint was filed, the Share Certificate was in the name of the
original complainant. It is further submitted that at the relevant
time, there was a dispute with respect to election, the impugned FIR
has been filed by the original complainant with malafide intention.
It is submitted that subsequently election petition was also filed.
Therefore, it is submitted that the impugned FIR is nothing but abuse
of process of law and Court and, therefore, it is requested to
exercise the power under Section 482 of the Code of Criminal
Procedure and to quash and set aside the impugned FIR.
4. Mr.J.K.Shah,
learned Additional Public Prosecutor has appeared on behalf of the
respondent-State and has requested to pass an appropriate order in
the facts and circumstances of the case.
5. Heard
the learned advocate appearing on behalf of the respective parties at
length and considered the averments and allegations made in the
impugned FIR. The allegations made in the impugned complaint are that
the name of the original complainant was deleted from the voters’
list and Share Certificate, which was in his name, has been
transferred in the name of other person by creating forged documents.
It was further alleged that even the Share Certificate, which was in
the name of Mohammed Patel has also been transferred by creating
forged documents. However, it appears and so stated in the
application, which was not disputed by the concerned respondent that
the Share Certificate was still in the name of the original
complainant and his name was deleted from the voters’ list after
following due procedure and it is required to be noted that
subsequently election petition was also filed.
So
far as allegation with respect to transferring the Share Certificate
of Mohammed G. Patel is concerned, he has filed affidavit by
submitting that Share Certificate is continuing in his name. It
appears that the petitioner has not committed any offence as alleged
in the impugned FIR. At the relevant time, there was election
dispute, for which, election petition was filed and the impugned
complaint has been filed with malafide intention and, therefore, it
appears to the Court that this is a fit case to exercise the power
under Section 482 of the Code of Criminal Procedure and to quash and
set aside the impugned FIR.
6. In
view of the above and for the reasons stated hereinabove, the present
application succeeds and the impugned FIR being C.R.No.I-116 of 2004
registered with Kodinar Police Station filed by respondent No.2
herein for the offences punishable under Sections 406 and 465 of the
Indian Penal Code is hereby quashed and set aside so far as the
present petitioner is concerned. Rule is made absolute to the
aforesaid extent.
[M.R.SHAH,J]
*dipti
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