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SCR.A/2305/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2305 of 2011
=========================================
UMESH
KUNDANLAL KABRA & 1 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
MR
PP MAJMUDAR for Applicant(s) : 1,
MR. MAULIK NANAVATI, APP for
Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 21/09/2011
ORAL
ORDER
Rule.
The
present Petition has been filed by the Petitioner under Articles 14,
21 and 226 of the Constitution of India as well as under Section 482
of the Criminal Procedure Code for the prayer that the FIR being
I-CR No. 26 of 2011 registered with DCB Police Station, Vadodara
City (at Annexure-A) may be quashed and set aside on the grounds
stated in the memo of the Petition inter alia that the present FIR
is not maintainable.
Heard
learned Advocate Mr. P.P.Majmudar for the Petitioners as well as
learned APP Mr. Maulik Nanavati for the Respondent – State of
Gujarat.
Learned
Advocate Mr. Majmudar submitted that for the same or the similar
offence, earlier FIR being I-CR No.279 of 2010 was registered with
Sayaniganj Police Station, Vadodara for the same allegations, and
therefore, the subsequent FIR, i.e. the present FIR being I-CR No.
26 of 2011 is not maintainable as it would amount an abuse of
process of law.
Learned
Advocate Mr. Majmudar has also referred to and relied upon the
judgment of the Hon’ble Apex Court in case of T.T.Antony v. State
of Kerala and Others, (2001) 6 SCC 181 in
support of his submission and pointedly referred to the observations
made in paragraphs 19, 20 and 27 thereof. He therefore submitted
that this is a fit case to exercise the discretion under Section 482
of Cr.PC or under Article 226 / 227 of the Constitution of India.
Learned
Advocate Mr. Majmudar has also submitted that even on merits, there
is no cause to file any such complaint as no case has been made out.
He submitted that the scheme was made and it was regarding the
investment for profit sharing in the business of gold, and if the
amount was collected and deposited on profit sharing basis, no
grievance could be made, and therefore, whatever the amount which
was invested was with a clear understanding, and the alleged offence
cannot be said to have been made out. He therefore submitted that
the present FIR may be quashed and set aside and the present
Petition may be allowed.
Learned
APP Mr. Maulik Nanavati submitted that as per the say of the
Petitioner himself the earlier FIR being I-CR No.279/2010
which has been registered for a similar offence, the charge sheet
has been filed and it has not been challenged. Further, if there is
another FIR, which is filed by a different complainant for the
alleged offence qua him the complaint would be maintainable and in a
subsequent judgment the Hon’ble Apex Court has clarified that the
ratio in case of T.T.Antony v. State of Kerala and Others
(supra) do not lay down any guideline, and therefore, the submission
that subsequent FIR is not maintainable may not be accepted. He has
referred to and relied upon the judgment of the Hon’ble Apex Court
in case of (2004) 13 SCC 292, Upkar Singh v. Ved Prakash
And Others and Kari
Choudhary v. Mst. Sita Devi and Others, (2002) 1 SCC 714.
Learned
APP Mr. Maulik Nanavati referred to the papers and submitted that a
bare perusal of the FIR itself discloses the cognizable offence
under Section 154, and therefore, it cannot be said that the FIR is
not maintainable. He therefore submitted that considering the scope
of exercise of inherent powers under Section 482, the discretion may
not be exercised.
In view of
the rival submissions, it is required to be considered whether the
present Petition can be entertained or not.
Though the
submission has been made by learned Advocate Mr. Majmudar for the
Petitioner that the earlier FIR being I-CR No.279/2010 has been
registered with Sayajiganj Police Station for the similar or the
same offence, the present FIR being I-CR No.26/2011 registered with
DCB Police Station, Vadodara is not maintainable.
It is required to be
mentioned that merely because the Sections or the alleged offences
are the same qua the Petitioner / Accused, it cannot be said that a
separate FIR is not maintainable. The complainant in both the FIRs
is different, and therefore, a different cause of action would arise
qua the separate complainant with regard to the transaction
regarding the alleged offence and / or having duped him, and
therefore, the submission cannot be accepted that it would be an
abuse of process of Court. It is also to be mentioned that at the
threshold such an FIR cannot be thrown out. At the most, if there
are many such complainants, it could be a recourse available to the
Petitioners to apply for clubbing as it was done in Telgi’s case.
Further,
the submission made by learned Advocate Mr. Majmudar that even on
merits, considering the FIR, no offence is made out and the scheme
was regarding the profit sharing and the investment was made with
full knowledge and awareness, cannot be accepted at the face value
in light of the averments made in the complaint itself. As the Court
is not required to go into these details at this stage, it is
suffice to say, a bare perusal of FIR clearly discloses the
cognizable offence, and therefore, it cannot be said that it has
been wrongly registered.
Learned
Advocate Mr. Majmudar has submitted that Petitioner No.2 was not
the Director at the relevant time in the Company. Though this
submission has been made as it is stated in the FIR itself that for
duping the people the letters have been sent with the photographs of
the Director or the officer concerned including the present
Petitioners.
Therefore,
having regard to the aforesaid aspect and also considering the scope
of exercise of inherent powers under Section 482 of Cr.PC or
considering the exercise of discretionary powers under Article
226/227 of the Constitution of India, the Court is not inclined to
exercise such discretion as no case has been made out for such
discretion and the present Petition deserves to be dismissed and
accordingly stands dismissed. Rule is discharged.
(Rajesh H.
Shukla,J)
Jayanti*
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