Gujarat High CourtSachinbhai Sureshbhai Patel vs State Of Gujarat on 30 September, 2022Author:Vaibhavi D. NanavatiBench:Vaibhavi D. NanavatiR/SCR.A/2971/2016                                   ORDER DATED: 30/09/2022\n\n\n\n\n        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n  R/SPECIAL CRIMINAL APPLICATION NO.                      2971 of 2016\n\n=====================================================\n       SACHINBHAI SURESHBHAI PATEL & 1 other(s)\n                         Versus\n             STATE OF GUJARAT & 1 other(s)\n=====================================================\nAppearance:\nMR P P MAJMUDAR(5284) for the Applicant(s) No. 1,2\nMR KAIVAN K PATEL(6338) for the Respondent(s) No. 2\nMS MAITHILI D MEHTA, ADDITIONAL PUBLIC PROSECUTOR for\nthe Respondent(s) No. 1\n=====================================================\n\n CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI\n\n                            Date : 30/09/2022\n\n                                  ORAL ORDER1. Heard         Mr.      P.P.     Majmudar,     learned             advocate\n\n     appearing for the applicants, Ms. Maithili D.\n\n     Mehta,            learned     Additional      Public          Prosecutor\n\n     appearing for the respondent No.1 - State and\n\n     Mr. Kaivan K. Patel, learned advocate appearing\n\n     for the respondent No.2-original complainant.2. By      way       of   this     application,        the       applicants\n\n     herein have prayed for quashing of FIR being\n\n     C.R. No.I-41 of 2016 dated 15.04.2016 registered\n\n     with       Siddhpur         Police     Station,   District            Patan,Page 1 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                       ORDER DATED: 30/09/2022\n\n\n\n\n  for the offence punishable underSections 406,420and114of the Indian Penal Code, 1860.3. Mr.     P.P.       Majmudar,        learned       advocate         appearing\n\n  for the applicants submitted that the impugned\n\n  FIR      fails       to    constitute           the   alleged         offences\n\n  against the applicants herein and that the said\n\n  FIR is nothing but an abuse of process of law\n\n  and the same does not disclose any cognizable\n\n  offence against the applicants herein. Mr. P.P.\n\n  Majmudar,           learned       advocate         appearing          for       the\n\n  applicants also submitted that respondent No.2\n\n  while             instituting          the        impugned          complaint\n\n  substrate the fact that an earlier complaint was\n\n  instituted           by    the     respondent         No.2      before          the\n\n  Police            Sub      Inspector,            Manjalpur,           District\n\n  Vadodara, leveling similar allegations wherein\n\n  after preliminary inquiry, the police submitted\n\n  a report stating that respondent No.2 - original\n\n  complainant               was    not        present      to        give         his\n\n  statement           and    that      the        complaint     came        to      be\n\n  filed by the respondent authority. The complaintPage 2 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                          ORDER DATED: 30/09/2022\n\n\n\n\n  filed by the respondent No.2 was for recovery of\n\n  money        and        hence,     the      said    complaint             was      not\n\n  entertained and a closure report to the said\n\n  effect            came    to     be     filed       on     29.03.2016.               It\n\n  appears that the applicants herein gave their\n\n  statements in the said preliminary inquiry on\n\n  05.03.2016 and 22.03.2016. The copy of the said\n\n  reports are duly produced on record ad Annexure-\n\n  C         (Collectively).                   The          facts           required\n\n  adjudication of the present FIR as stated by the\n\n  applicants herein are stated thus:-The       respondent           No.2       filed      impugned             FIR\n\n  alleging FIR dated 15.04.2016 and stating that\n\n  the       respondent             No.2      -     original          complainant\n\n  started           business        of     agro      products          at      Nedhra\n\n  village            in    Siddhpur          District         Patan.          It       is\n\n  alleged that the respondent No.2 was in need of\n\n  processing machine and therefore, the respondent\n\n  No.2 contacted the applicant herein who is one\n\n  of the partners of ANG Enterprice. It is also\n\n  alleged in the impugned FIR that a quotation wasPage 3 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                          ORDER DATED: 30/09/2022\n\n\n\n\n  sent for 16 machines amounting to Rs.26,73,000/-\n\n  by email by the applicant herein. It is further\n\n  alleged           that    meeting         was       held        between            the\n\n  parties           on   29.08.2014             and   that        the        parties\n\n  agreed to pay Rs.10,00,000/- was to be paid as\n\n  down       payment       and   allegedly            on     29.08.2014              The\n\n  respondent No.2 gave a cheque of Rs. 5,00,000/-\n\n  to the applicant herein. It is further alleged\n\n  that thereafter on 27.09.2014, another cheque of\n\n  Rs.5,00,000/- was also given by the respondent\n\n  No.2 to the applicant herein and receipts were\n\n  also issued by email. It is also alleged that\n\n  though the aforesaid payment was duly paid, the\n\n  machinery was not delivered to the respondent\n\n  No.2 and in view of above, the applicants were\n\n  told that by the respondent No.2 to refund the\n\n  down payment. However, the said amount was not\n\n  refunded and the machinery was also not been\n\n  delivered. Resultantly, the respondent No.2 was\n\n  constrained to file impugned FIR.4. Mr. Kaivan Patel, the learned advocate appearingPage 4 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                     ORDER DATED: 30/09/2022\n\n\n\n\n  for the respondent No.2 - original complainant\n\n  was not in a position to controvert the fact\n\n  that the complaint impugned is identical to the\n\n  first          complaint       which         was     filed          by        the\n\n  respondent          No.2      at    Manjalpur        Police         Station,\n\n  District : Vadodara,which is duly produced at\n\n  page No.31.5. Ms. Maithili D. Mehta, the learned Additional\n\n  Public Prosecutor appearing for the respondent\n\n  No.1       -      State    submitted         that     the       applicant-accused           has     a    factory         preparing            machines\n\n  utilised for preparing packing material, which\n\n  is situated at Vadodara so the second cheque was\n\n  also        delivered         at     Vadodara        and        therefore,\n\n  Vadodara           Police          Station         would       have           the\n\n  jurisdiction.             Similarly,         the    respondent            No.2-\n\n  original complainant has a agro product factory\n\n  which is a packing material preparing factory\n\n  which is situated at Siddhpur.6. Having heard the learned advocates appearing for\n\n  the respective parties. At this stage, it isPage 5 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                     ORDER DATED: 30/09/2022\n\n\n\n\n  apposite to refer to position of law as laid\n\n  down by the Hon'ble Apex Court in the Criminal\n\n  Appeal No.834 of 2017 dated 08.08.2019. It is\n\n  apposite to refer paragraphs No.2.2., 4, 4.1,\n\n  4.2 and 4.3 which reads thus :-"2.2   That    the     aforesaid          prayers/reliefs\n\n              were opposed by the appellants herein and\n\n              respondent Nos. 2 and 3 herein. It was\n\n              submitted      that    the       original         complainant\n\n              had earlier preferred an application underSection 156(3)of the Cr.P.C. which came\n\n              to be rejected by the learned Magistrate,\n\n              vide order dated 27.03.2015 and that the\n\n              said   order      was          not     assailed          by       the\n\n              complainant and thereafter a fresh private\n\n              complaint underSection 200Cr.P.C. has\n\n              been preferred which is pending before the\n\n              learned Magistrate. It was also submitted\n\n              on behalf of the original accused that the\n\n              dispute   is    of     a       civil    nature        which         is\n\n              tried to be converted into criminal, whichPage 6 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                  ORDER DATED: 30/09/2022\n\n\n\n\n              is nothing but an abuse of the process of\n\n              law. It was submitted that despite having\n\n              the     knowledge    of       the   mortgage           of      the\n\n              property with the Andhra Bank, thereafter\n\n              the     complainant       himself       had       paid         the\n\n              mortgage money to the Andhra Bank and even\n\n              got the sale deed executed in his favour.\n\n              It was submitted that if the complainant\n\n              was aggrieved, in that case, he would not\n\n              have got the sale deed executed in his\n\n              favour.4.1     Even   considering           the       nature            of\n\n              allegations in the complaint, we are of\n\n              the firm opinion that no case is made out\n\n              for taking cognizance of the offence underSection 420/34IPC. The case involves a\n\n              civil    dispute    and       for   settling         a      civil\n\n              dispute, the criminal complaint has been\n\n              filed, which is nothing but an abuse of\n\n              the process of law.4.2 It is required to be noted that afterPage 7 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                         ORDER DATED: 30/09/2022\n\n\n\n\n              having come to know that the property was\n\n              mortgaged      with          the         Andhra        Bank,          the\n\n              original     complainant                 himself          paid        the\n\n              mortgage      money          and         got     the        mortgage\n\n              redeemed. Not only that, thereafter, he\n\n              got the sale deed executed in his name.\n\n              Thereafter also, he filed the complaint\n\n              with   the    learned             Magistrate,             being         an\n\n              application underSection 156(3)of the\n\n              Cr.P.C., which came to be rejected by the\n\n              learned      Magistrate,               vide       order           dated\n\n              27.03.2015.          The          said      order         was         not\n\n              assailed by the complainant. It appears\n\n              that   thereafter                 he     filed        a       private\n\n              complaint underSection 200Cr.P.C. which\n\n              was pending before the learned Magistrate.Despite      the       above,          he      filed         a      writ\n\n              petition before the High Court, which is\n\n              nothing but an abuse of the process of\n\n              law. The criminal proceedings have been\n\n              initiated by the original complainant to\n\n              settle the civil dispute. Therefore, inPage 8 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                       ORDER DATED: 30/09/2022\n\n\n\n\n              the facts and circumstances of the case,\n\n              the Investigating Officer and other police\n\n              officers were justified in not registering\n\n              the FIR and in coming to the conclusion\n\n              that the complaint be filed. The earlier\n\n              opinion on preliminary inquiry was never\n\n              placed      before       the       DCP.       Thereafter,              on\n\n              thorough            investigation/inquiry                            and\n\n              considering the facts and circumstances of\n\n              the case narrated hereinabove, when it was\n\n              opined      that       the        dispute         between            the\n\n              parties is of a civil nature, the High\n\n              Court    ought      not      to    have       issued         further\n\n              directions. The High Court ought to have\n\n              closed the proceedings. Not only the High\n\n              Court has issued further directions, but\n\n              even     has   imposed            costs       and      an      action\n\n              against     the      appellants           3     to       5     herein\n\n              which, in the facts and circumstances of\n\n              the case, is not sustainable.4.3    In   view      of     the    above        and         for     thePage 9 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                      ORDER DATED: 30/09/2022\n\n\n\n\n               reasons    stated        above          and     as       observed\n\n               hereinabove,         the         initiation              of        the\n\n               criminal      proceedings              by     the        original\n\n               complainant is nothing but an abuse of the\n\n               process of law, we not only quash and set\n\n               aside the impugned judgment and order, but\n\n               also    quash       the         criminal           proceedings\n\n               pending before the learned Magistrate in\n\n               respect of the transaction in question.\n\n               Consequently,         the         present          appeal            is\n\n               allowed, the impugned judgment and order\n\n               dated 13.01.2017 passed by the High Court\n\n               is hereby quashed and set aside. Even the\n\n               criminal      proceedings              initiated          by       the\n\n               original      complainant          pending         before          the\n\n               learned    Magistrate             in     respect          of       the\n\n               transaction in question are hereby quashed\n\n               and set aside."7.    In the facts of the present case, it is an\n\n     undisputed       fact     that      the      respondent              No.2        -\n\n     original         complainant              herein        preferred                aPage 10 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                        ORDER DATED: 30/09/2022\n\n\n\n\n  complaint         before       the     Manjalpur         Police          Station\n\n  being application No.66 of 2016 for the same\n\n  transaction as stated in the Second FIR. The\n\n  contents          of   the     FIR     as      stated     above        are       not\n\n  repeated. The said complaint came to be filed by\n\n  the respondent authority on 29.03.2016 and the\n\n  operative          paragraph         of     the   said       report          reads\n\n  thus :-"As     the       applicant          gave       Rs.10,00,000/-\n\n             only, the respondent was to receive the\n\n             finance money from the applicant at the\n\n             rate of 5 %. As the applicant does not\n\n             take the machinery for some reasons and\n\n             gives vague reply and as no other person\n\n             can purchase the said machinery, our money\n\n             is blocked in the said machinery, which\n\n             has caused huge loss to us. As it has been\n\n             stated that the applicant does not take\n\n             the machinery, the applicant was contacted\n\n             but he did not come to give his statement\n\n             till        date.      It      appears         that          he       has\n\n             submitted           this       application              with          thePage 11 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                         ORDER DATED: 30/09/2022\n\n\n\n\n             intention          of       earning          money        from         the\n\n             respondent. Therefore,                   as it appears that\n\n             no action is required to be taken with\n\n             respect to this application, the officer\n\n             is requested to file the said application.\n\n             Date: 29/03/2016."8. The     FIR       which    is     impugned        and     which        is      duly\n\n  produced at page 28 dated 15.04.2016, admittedly\n\n  has been filed subsequently after the respondent\n\n  authority closed the complaint on 29.03.2016 as\n\n  stated above. The aforesaid FIR being C.R. No.I-\n\n  41     of         2016   dated       15.04.2016          culminated             into\n\n  chargesheet, which is also duly produced at page\n\n  No.44. The said charge-sheet came to be filed on\n\n  19.11.2020.9. Having           considered         the         documents         which          are\n\n  produced            on     record       and       the    nature          of       the\n\n  complaints impugned, in view of this Court and\n\n  in view of the ratio laid down by the Hon'ble\n\n  Apex Court, in view of this Court, the complaint\n\n  which is impugned and which has culminated intoPage 12 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022R/SCR.A/2971/2016                                        ORDER DATED: 30/09/2022\n\n\n\n\n          Criminal       Case   No.     1235          of   2021     would        not       be\n\n          maintainable since the first complaint came to\n\n          be closed and which was the same subject matter.\n\n          On this ground alone, this Court is inclined to\n\n          allow the application filed by the applicants\n\n          herein. Consequently, the impugned FIR which has\n\n          culminated       into   the        criminal         case       No.1235           of\n\n          2021    stands      quashed        and       the    said       proceedings\n\n          which has resulted in Criminal Case No.1235 of\n\n          2021 shall stands terminated.10.          It is however, kept open for the respondent\n\n          No.2 to take steps as permissible in the law.11.          This Court has otherwise not gone into the\n\n          merits of the matter.12.          Rule    is     made     absolute            to    the       aforesaid\n\n          extent.(VAIBHAVI D. NANAVATI,J)\n\nPallaviPage 13 of 13Downloaded on : Sat Oct 01 20:33:25 IST 2022