Gujarat High Court
Dilip Manchhalal Parihar vs State Of Gujarat on 18 December, 2024
NEUTRAL CITATION
R/SCR.A/16573/2024 JUDGMENT DATED: 18/12/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 16573 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
✔
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DILIP MANCHHALAL PARIHAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
O I PATHAN(7684) for the Applicant(s) No. 1
MR. MANAN MAHETA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/12/2024
ORAL JUDGMENT
1. The present petition is filed for the following prayers:
“a) Be pleased your Lordships to quashed and set aside
the complaint (F.I.R) bearing I.CR.No.
11191011240307/2024 registered with DCB Police
Station At AHMEDABAD, filed by respondent no.2 qua
present petitioner and further be pleased to quashed
and set aside the Criminal proceedings qua present
petitioner if any arising out of the said complaint.
(b) That pending hearing and final disposal of this
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present petition, this Honble Court may be pleased to
stay further proceedings of FIR bearing No.
11191011240307/2024 registered with DCB Police
Station, AHMEDABAD against the petitioner.
(c) Be pleased your Lordships to pass any other and
further order considering the facts and circumstances of
the case in the interest of justice.”
2. Heard learned Senior Counsel Mr. Aditya Bharat
Manubarwala with learned advocate Mr. O.I.Pathan for the
petitioner and learned APP, Mr. Manan Maheta for the
respondent – State.
3. Learned Senior Counsel has submitted that essentially
the dispute is between two brothers and initially, the
application was given before some other Police Station,
though, both the brothers are residing at Mumbai however
with a view to harass the present petitioner, the FIR is filed
before the D.C.B. Police Station, Ahmedabad City. He has
further submitted that looking to the tenor of the FIR,
essentially the allegation pertains to non-payment of the
amount and for that Civil Proceedings are required to be
filed which can be more efficacious remedy and by way of
the present FIR, the Civil Proceedings are converted into
Criminal Proceedings. Therefore, he submits that, in view of
the settled position of law, when the Court is of the opinion
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that on a bare reading of the FIR, no offences are made out
or Court is of the opinion that the continuation of the
proceedings pursuant to the FIR would amount to abuse of
process of law, then the Court should interfere in the
proceedings initiated pursuant to the FIR and may quash the
proceedings, in the interest of justice.
4. Learned APP, Mr. Maheta has strongly opposed the
submissions made on behalf of the petitioner and has
submitted that every matter cannot be considered as civil
dispute, merely because, there is some mention about the
recovery of the amount and every complaint is required to be
examined independently on the facts and circumstances of
each case. He has submitted that the Hon’ble Apex Court
has also held in various decisions that the mere filing of
civil proceedings pursuant to the dispute between the parties
does not mean that such dispute is not having a criminal
texture. He has further submitted that earlier complaint is
filed by the complainant which was not registered as at the
relevant point of time, no evidence were produced and from
the report filed before the concerned Court at the time of
consideration of the application for the anticipatory bail, it
was specifically stated that at the relevant point of time,
evidence was not produced by the complainant. He has
further submitted that otherwise the transaction has taken
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place at Ahmedabad and the firm is also situated at
Ahmedabad and therefore, there is no substance in the
contentions raised by the present petitioner that the
petitioner is residing at Mumbai and the complaint is filed at
Ahmedabad with a view to harass the present petitioner.
5. I have considered the rival submissions made at the
bar, I have also gone through the present FIR which is filed
under the provisions of Sections 406, 409 and 420 of the
Indian Penal Code, 1860, the same reads as under:
“406. Punishment for criminal breach of trust.–
Whoever commits criminal breach of trust shall be punished
with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.
409. Criminal breach of trust by public servant, or by banker,
merchant or agent.–
Whoever, being in any manner entrusted with property, or with
any dominion over property in his capacity of a public servant
or in the way of his business as a banker, mer-chant, factor,
broker, attorney or agent, commits criminal breach of trust in
respect of that property, shall be punished with imprisonment
for life, or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
420. Cheating and dishonestly inducing delivery of property.–
Whoever cheats and thereby dishonestly induces the person
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deceived to deliver any property to any person, or to make,
alter or destroy the whole or any part of a valuable security, or
anything which is signed or sealed, and which is capable of
being converted into a valuable security, shall be punished with
imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.”
6. It also transpires that earlier complaint is filed, which
is not registered as the petitioner has failed to produce
necessary documentary evidence in support of his say. It also
transpires that the firm is situated at Ahmedabad and
transaction has also taken place at Ahmedabad. Therefore,
the contentions raised on behalf of the petitioner regarding
the fact that both the petitioner as well as the complainant
are residing at Mumbai and the complaint is filed at
Ahmedabad with a view to harass the petitioner and that
amounts to abuse of process of law and the same is not
required to be accepted. The other contention which is raised
is that the dispute is essentially in the nature of civil
dispute as the dispute between two brothers is about the
business transaction and non-payment of the said amount as
mentioned in the FIR and therefore, the best course is to
avail the civil remedy. In the series of judgments, the
Hon’ble Apex Court has taken view that when there is a
transaction of purely civil dispute, the complaint is required
to be quashed. However, there are also several judgments
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where the Hon’ble Apex Court as well as this Hon’ble Court
have taken view that when the complaint is having the
texture of civil as well as criminal dispute, then merely on
the basis that the civil suit can be filed, no ground is there
to interfere with such criminal proceedings.
7. It is apt to refer to the judgment in the case of Lalit
Chaturvedi Vs. State of Uttar Pradesh reported in 2024 (0)
AIJEL-SC 73144, wherein, relevant paragraphs are reproduced
as under:
“Having gone through the complaint, which was registered as an
FIR and the assertions made therein, it is quite clear that
respondent no. 2/complainant – Sanjay Garg’s grievance is
regarding failure of the appellants to pay the outstanding
amount, in spite of the respondent no. 2/complainant – Sanjay
Garg’s repeated demands. The respondent no. 2/complainant –
Sanjay Garg states that the supplies were made between the
period 01.12.2015 and 06.08.2017. The appellants had made the
payments from time to time of Rs. 3,76,40,553/- leaving a
balance of Rs. 1,92,91,358/-. We will assume that the assertions
made in the complaint are correct, but even then, a criminal
offence under Section 420 read with Section 415 of the IPC is
not established in the absence of deception by making false and
misleading representation, dishonest concealment or any other
act or omission, or inducement of the complainant to deliver any
property at the time of the contract(s) being entered. The
ingredients to allege the offence are neither stated nor can be
inferred from the averments. A prayer is made to the police for
recovery of money from the appellants. The police is toPage 6 of 13
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investigate the allegations which discloses a criminal act. Police
does not have the power and authority to recover money or act
as a civil court for recovery of money.
The chargesheet also refers to Section 406 of the IPC, but
without pointing out how the ingredients of said section are
satisfied. No details and particulars are mentioned. There are
decisions which hold that the same act or transaction cannot
result in an offence of cheating and criminal breach of trust
simultaneously.10 For the offence of cheating, dishonest intention
must exist at the inception of the transaction, whereas, in case
of criminal breach of trust there must exist a relationship
between the parties whereby one party entrusts another with
the property as per law, albeit dishonest intention comes later.
In this case entrustment is missing, in fact it is not even
alleged. It is a case of sale of goods. The chargesheet does refer
to Section 506 of the IPC relying upon the averments in the
complaint. However, no details and particulars are given, when
and on which date and place the threats were given. Without
the said details and particulars, it is apparent to us, that these
allegations of threats etc. have been made only with an intent
to activate police machinery for recovery of money.
It is for the respondent no. 2/complainant – Sanjay Garg to
file a civil suit. Initiation of the criminal process for oblique
purposes, is bad in law and amounts to abuse of process of law.
In view of the aforesaid discussion, the impugned judgment is
set aside and the present appeal is allowed quashing the FIR
and resultant proceedings, including the chargesheet.
We clarify that the present appeal only deals with the
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question of criminal offence. We have not commented or made
any observations on the civil rights of respondent no.
2/complainant – Sanjay Garg.”
8. In view of the above, it is clearly held that the
proceedings pursuant to the FIR can go on if the dispute
also involves some criminality or having some criminal
texture. From the bare reading of the FIR, it cannot be said
that the dispute is essentially of the civil nature as there is
a firm is going on in the cloth market whereby upto the
year 2023, the cotton clothes were purchased and some
payment is also made and thereafter, substantial amount of
Rs.1,33,97,316/- was not paid and thereafter, though it was
repeatedly asked, initially, the petitioner has made promises
and by giving certain replies but by not acting on such
assurances for payment of the amount and when the
complainant has again asked about the payment of the
amount, the petitioner has not paid the said amount and
therefore, committed criminal breach of trust as well as
cheating as alleged in the FIR, which is required to be
investigated further. It cannot be said that even from the
allegations which are borne out from the FIR only the civil
proceedings are required to be filed and no criminal
complaint can be filed looking to the allegations, more
particularly, about the criminal breach of trust and cheating,
whereby, prima facie offence of cheating is made out.
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9. It is needless to say that the Hon’ble Apex Court has
given specific directions in the case of Neeharika
Infrastructure Pvt.Ltd. V/s State of Maharashtra reported in
2021 SCC Online SC 315, wherein, it is held in paragraph
80 as under:
“80. In view of the above and for the reasons stated above, our
final conclusions on the principal/core issue, whether the High
Court would be justified in passing an interim order of stay of
investigation and/or “no coercive steps to be adopted”, during the
pendency of the quashing petition under Section 482 Cr.P.C and/or
under Article 226 of the Constitution of India and in what
circumstances and whether the High Court would be justified in
passing the order of not to arrest the accused or “no coercive
steps to be adopted” during the investigation or till the final
report/chargesheet is filed under Section 173 Cr.P.C., while
dismissing/disposing of/not entertaining/not quashing the criminal
proceedings/complaint/FIR in exercise of powers under Section 482
Cr.P.C. and/or under Article 226 of the Constitution of India, our
final conclusions are as under:
i) Police has the statutory right and duty under the relevant
provisions of the Code of Criminal Procedure contained in Chapter
XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable
offences;
iii) It is only in cases where no cognizable offence or offence of
any kind is disclosed in the first information report that the
Court will not permit an investigation to go on;
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iv) The power of quashing should be exercised sparingly with
circumspection, as it has been observed, in the ‘rarest of rare
cases (not to be confused with the formation in the context of
death penalty).
v) While examining an FIR/complaint, quashing of which is
sought, the court cannot embark upon an enquiry as to the
reliability or genuineness or otherwise of the allegations made in
the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial
stage;
vii) Quashing of a complaint/FIR should be an exception rather
than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the State
operate in two specific spheres of activities and one ought not to
tread over the other sphere;
ix) The functions of the judiciary and the police are
complementary, not overlapping;
x) Save in exceptional cases where non-interference would result
in miscarriage of justice, the Court and the judicial process should
not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer
an arbitrary jurisdiction on the Court to act according to its
whims or caprice;
xii) The first information report is not an encyclopaedia which
must disclose all facts and details relating to the offence reported.
Therefore, when the investigation by the police is in progress, the
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court should not go into the merits of the allegations in the FIR.
Police must be permitted to complete the investigation. It would
be premature to pronounce the conclusion based on hazy facts
that the complaint/FIR does not deserve to be investigated or that
it amounts to abuse of process of law. After investigation, if the
investigating officer finds that there is no substance in the
application made by the complainant, the investigating officer may
file an appropriate report/summary before the learned Magistrate
which may be considered by the learned Magistrate in accordance
with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but
conferment of wide power requires the court to be more cautious.
It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard
being had to the parameters of quashing and the self-restraint
imposed by law, more particularly the parameters laid down by
this Court in the cases of R.P. Kapur (supra) and Bhajan Lal
(supra), has the jurisdiction to quash the FIR/complaint;
xv) When a prayer for quashing the FIR is made by the alleged
accused and the court when it exercises the power under Section
482 Cr.P.C., only has to consider whether the allegations in the
FIR disclose commission of a cognizable offence or not. The court
is not required to consider on merits whether or not the merits of
the allegations make out a cognizable offence and the court has
to permit the investigating agency/police to investigate the
allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the
aforesaid aspects are required to be considered by the High Court
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while passing an interim order in a quashing petition in exercise
of powers under Section 482 Cr.P.C. and/or under Article 226 of
the Constitution of India. However, an interim order of stay of
investigation during the pendency of the quashing petition can be
passed with circumspection. Such an interim order should not
require to be passed routinely, casually and/or mechanically.
Normally, when the investigation is in progress and the facts are
hazy and the entire evidence/material is not before the High
Court, the High Court should restrain itself from passing the
interim order of not to arrest or “no coercive steps to be adopted”
and the accused should be relegated to apply for anticipatory bail
under Section 438 Cr.P.C. before the competent court. The High
Court shall not and as such is not justified in passing the order
of not to arrest and/or “no coercive steps” either during the
investigation or till the investigation is completed and/or till the
final report/chargesheet is filed under Section 173 Cr.P.C., while
dismissing/disposing of the quashing petition under Section 482
Cr.P.C. and/or under Article 226 of the Constitution of India. xvii)
Even in a case where the High Court is prima facie of the
opinion that an exceptional case is made out for grant of interim
stay of further investigation, after considering the broad
parameters while exercising the powers under Section 482 Cr.P.C.
and/or under Article 226 of the Constitution of India referred to
hereinabove, the High Court has to give brief reasons why such
an interim order is warranted and/or is required to be passed so
that it can demonstrate the application of mind by the Court and
the higher forum can consider what was weighed with the High
Court while passing such an interim order.
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xviii) Whenever an interim order is passed by the High Court of
“no coercive steps to be adopted” within the aforesaid parameters,
the High Court must clarify what does it mean by “no coercive
steps to be adopted” as the term “no coercive steps to be
adopted” can be said to be too vague and/or broad which can be
misunderstood and/or misapplied.”
10. In view of the foregoing reasons, no interference of this
Court is called for in the present matter, at this stage.
Therefore, the present petition lacks merit and the same is
required to be dismissed.
11. Accordingly, the present petition is dismissed.
(SANDEEP N. BHATT,J)
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