CR.MA/79920/2002 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 799 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= RATILAL FAKIRCHAND CHAUDHRI & ANR Versus STATE OF GUJARAT & ANR ========================================= Appearance : MR PRADEEP PATEL for Applicants MR LB DABHI APP for Respondent No. 1 MR PRAKASH K JANI for Respondent No. 2 ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA Date : 22 /08/2008 CAV JUDGMENT 1. This petition is preferred by the petitioners - original accused for quashing of a complaint filed by respondent No.2 before Judicial Magistrate, First Class, at Anand, registered as Court Inquiry CR.MA/79920/2002 2/12 JUDGMENT Case No. 3 of 2002, against the present petitioners, in the Court of Judicial Magistrate, First Class, at Anand, exercising of powers of this Court under Section 482 of the Code of Criminal Procedure. 2. Briefly stating, the present respondent No.2 filed a complaint on the facts that in Aaviskar Complex at Anand the complainant was doing business of dry cleaning by the name and style of “Man Mandir” Dry Cleaners, in Shop No. 13, situated at Vallabh Vidyanagar, Near Bhaikaka Statute. It is the case in the complaint of the complainant - respondent No.2 that one Pravinbhai Chandubhai Patel, husband of the sister of the complainant, in the year 1980, paid the consideration of Rs. 15,000/- to the present petitioner, who was tenant in the said shop, and after paying that consideration of Rs. 15,000/-, the tenancy rights of present respondent No.2 were purchased by Pravinbhai Chandubhai Patel and the owner of the premises - Prakashbhai Vithalbhai Patel also approved this transaction, and in the said shop, thereafter respondent No.2 - original complainant, according to allegation, was doing business of laundry. In March, 2001, accused i.e. present petitioners came to the complainant and stated that the said shop and the whole building was purchased by one Dipakbhai Modi, who was preparing to grab the possession of the said shop and since the complainant - respondent No.2 was the relative of Pravinbhai CR.MA/79920/2002 3/12 JUDGMENT Chandubhai Patel and since Pravinbhai Chandubhai Patel was the friend of the present petitioners - accused, it was represented by the petitioners - accused to the complainant that the complainant should hand over all the receipts of rent, bills, etc to the accused. Complainant acted accordingly and entrusted all the documents to the complainant. In the meantime, original owner Dipakbhai Modi purchased the building, forcibly got vacated the adjoining premises, in which the cycle stall was there and, hence, the petitioners again represented to the complainant – respondent No.2 that Dipakbhai Modi might now got vacated the premises of the complainant and to escape such harassment, complainant should sign a deed of partnership, which was brought by the petitioners and was on non-judicial stamp paper of Rs.100/-. Complainant signed such document purported to be of document of partnership in the presence of two witnesses Ambalal Somabhai Dabhi and Manojbhai Ravjibhai Patel. The said partnership deed required the signature of Pravinbhai Chandubhai Patel, who was at USA at the relevant time and his power-of-attorney-holder was in India, but power-of-attorney-holder of Pravinbhai Chandubhai Patel, brother-in-law of the complainant, denied to sign such partnership deed and also not allowed the complainant to sign any such documents. In the meantime, as per the instructions of Pravinbhai Chandulal Patel, complainant handed over the possession of the said shop to Dipakbhai CR.MA/79920/2002 4/12 JUDGMENT Modi on 20th of November, 2001 along with the tenancy rights of the complainant. When this was known to the accused – petitioners, they demanded heavy amount from the complainant. It was threatened, that otherwise, the complainant would be fixed in criminal as well as civil litigations and, therefore, the complaint came to be filed by the complainant against the present petitioners for the offences punishable under Sections 420, 465, 467, 471 and 120(B) of the Indian Penal Code. Learned Judicial Magistrate, First Class, Anand, on receiving the complaint, forwarded the complaint to the police for investigation under Section 156(3) on 10th of January, 2002 with direction to report within 30 days and, hence, this petition by the original accused. 3. Learned Advocate Mr. Pradeep Patel for the petitioners, learned Advocate Mr. Y.M. Thakor for learned Advocate Mr. P.K. Jani for respondent No.2 and learned APP Mr. L.B. Dabhi for respondent No.1 State were heard in detail. 4. Learned Advocate Mr. Pradeep Patel submitted that on the face of the complaint and the papers accompanying the same, it cannot be said that the offence is committed by the petitioners as alleged in the complaint and, therefore, complaint is not maintainable. It is submitted that reading the complaint as a whole and looking at the CR.MA/79920/2002 5/12 JUDGMENT allegations set out in the complaint, it cannot be said that any of the petitioners has committed the offence as alleged. It is submitted that, in fact, the petitioner No.1 was the tenant in the said Shop No. 13 right from 1973 to 1980. Thereafter, the petitioner No.1 entered into an oral partnership with respondent No.2 and Pravinbhai Chandubhai Patel as both of them were close friends of petitioner No.1. The shop was run by respondent No.2 Pravinabhai Babarbhai Patel. The receipts are produced on record which clearly establishes that the petitioner No.1 Ratilal Fakirchand Chaudhri was a tenant in the said shop and was in possession. Thereafter, the shop was sold by original owner to Dipakbhai Modi, who started giving threats to petitioner No.1 to vacate the premises and, in fact, Dipakbhai Modi was successful in carrying out such threats in adjoining premises of cycle stall. This shop belongs to the petitioner by way of tenancy rights, and for this shop the petitioner No.1 had taken insurance against loss due to fire, etc. Insurance receipt has been placed on record. It was thought by the petitioners to legalise the partnership entered into orally and, therefore, he prepared a partnership deed and took the same to respondent No.2 and the power-of-attorney-holder of Pravinbhai Chandubhai Patel. Respondent No.2 signed the partnership deed, but power-of-attorney- holder of Pravinbhai Chandubhai Patel declined to put the signature saying that Pravinbhai himself shall sign the deed on his coming to India CR.MA/79920/2002 6/12 JUDGMENT as he was at USA at the relevant juncture. Thereafter, it came to the knowledge of the petitioner No.1 that respondent No.2 herein with malicious intention, joined hands with Dipakbhai Modi and was trying to hand over the possession of the shop to Dipakbhai Modi after taking about Rs. 20 lacs and to bring to an end the tenancy right of the petitioner No.1 and, therefore, the petitioner No.1 gave notice through his Advocate on 13th of November, 2001 for dissolution of the partnership. During Diwali holidays in November, 2001, Dipakbhai Modi unauthorizedly taken over possession of the shop and started demolishing the shop in collusion with respondent No.2 and, therefore, the petitioner No.1 had immediately filed a Civil Suit No. 405 of 2001 in the Court of Civil Judge (JD) at Anand. The said Civil Suit is still pending. The petitioner No.1 also filed one complaint before Vallabh Vidyanagar Police Station on 27.11.2001 to take action against the respondent No.2 under Sections 406, 427, 465, 468 and 114 of the Indian Penal Code, but the police did not heed the complaint and, therefore, the petitioner No.1 filed a Criminal Case No. 7286 of 2001 against the respondent No.2 and others in the Court of Judicial Magistrate, First Class, at Anand, on 13.12.2001. On receiving the summons of this complaint, on 09.01.2002, the respondent No.2 filed the present complaint on 10.01.2002 as counter blast and, therefore, the present petition under Section 482 of the Code of Criminal CR.MA/79920/2002 7/12 JUDGMENT Procedure as the complaint filed by the respondent No.2 is being abuse of process of law and is required to be quashed. 5. As against that, learned Advocate Mr. Y.M. Thakor submitted that this is not a case wherein extraordinary powers under Section 482 of the Code of Criminal Procedure can be exercised by the Court. The averments are made in the complaint that the tenancy rights of the present petitioners were transferred to Pravinbhai Chandubhai Patel by the present petitioners and respondent No.2 was doing business of laundry in the said shop. Averments are also made that by misrepresentation, the present petitioners obtained receipts of rent, etc from respondent No.2 and prepared a forged partnership deed. It is only when Pravinbhai Chandulal Patel, who was at USA, advised properly to respondent No.2, respondent No.2 came to know that the petitioners had committed cheating and forgery as against him and, therefore, the present complaint. It is submitted that all these aspects are subject to investigation of police and still to be inquired into whether the document was forged and the signature is taken by misrepresentation on blank paper, are the allegations require investigation of police and cannot be looked into at this stage in this petition. Therefore, when the complaint is filed with specific allegations and those allegations are under investigation, the accused CR.MA/79920/2002 8/12 JUDGMENT has no locus standi to file this petition under Section 482 of the Code of Criminal Procedure to quash the complaint. However, bare reading of the complaint did disclose cognizable offence and this Court cannot go beyond the scope of the averments made in the complaint. Therefore, it is requested that the petition be dismissed. 6. Learned APP Mr. L.B. Dabhi for the respondent No.1 State submitted that the complaint is still at the investigation stage and no interference is required. 7. Section - 482 of the Criminal Procedure Code, 1973, confers sufficient and independent powers on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of court has been seriously abused. It is also well settled that the inherent powers under Section 482 of the Code of Criminal Procedure can be exercised only when no other remedy is available to the litigant and not where the specific remedy is provided in the statute. It is also true that the power, quashing a criminal proceeding, should be exercised very sparingly and with circumspection, and that too, in the rarest of rare cases that the court will not be justified in embarking upon an inquiry as to the reliability of genuineness or otherwise of the allegations made in the CR.MA/79920/2002 9/12 JUDGMENT complaint/FIR, and that the extraordinary or inherent powers, do not confer any arbitrary jurisdiction on the court to act according to its whim or caprice. At the same time, wherever it is found by the court, ex facie, that there is abuse of process of court and that to secure the ends of justice, it is necessary to exercise the powers under Section 482 of the Code of Criminal procedure, the court must exercise such powers, wherein it is found that the allegations made in the complaint are so absurd and inherently improbable, on the basis of which, a prudent man can ever reach a just conclusion that there is no sufficient ground for proceeding against the accused. In such cases, when complaint does not make out any case against the accused, if the powers are not exercised under Section 482 of the Criminal Procedure Code by the High Court, such accused will have to undergo the agony of a criminal trial, which would itself amount of abuse of process of law. 8. It is well settled that the criminal prosecution is a serious matter and would amount to harassment to the accused and also would abuse of process of the court if without any sufficient grounds it is allowed to proceed. Care, therefore, be taken to see that such prosecutions are not allowed to be used as an instrument of harassment or for settling private vendetta with an ulterior motive to pressurize the accused. CR.MA/79920/2002 10/12 JUDGMENT 9. Looking to the facts of the present case, even from bare reading of the complaint filed by the respondent No.2, it clearly appears that the complaint filed is nothing but a counter blast of the criminal complaint filed by the present petitioners against respondent No.2 and others. Even on bare reading of the complaint in question, it clearly appears that it was the petitioner No.1 who was the tenant of the said premises and in the said premises, business of laundry was going on by the name and style of `Man Mandir'. Obtaining signature of respondent No.2 by misrepresentation on a deed of partnership in blank papers, is a story, one would not at all believe the same being probable. The petitioner filed complaint earlier i.e. on 13.12.2001, while present complaint is preferred by respondent No.2 on 10.01.2002. Petitioner before that had addressed an application to police authority on 27th of November, 2001 about the attempts made by respondent No.2 and others to damage the tenancy rights of the petitioner. The fact of civil suit is also a fact, which cannot be ignored by this Court. True it is that only the averments made in the complaint are to be seen while powers are to be exercised under Section 482 of the Code of Criminal Procedure, but, at the same time, the facts surrounding such averments, without embarking upon any inquiry, must not be ignored by the court exercising powers under Section 482 of the Code of Criminal CR.MA/79920/2002 11/12 JUDGMENT Procedure. If such course is adopted, the provisions made by the Legislature in saving inherent powers to the High Courts, would become nugatory and otiose. Now reading the complaint in question as it is with the facts that the petitioner No.1 was the tenant of the premises and that he was doing business in partnership with Pravinbhai Chandulal Patel, it clearly appears that the present complaint is nothing but a counter blast and abuse of process of law as the Court cannot ignore the judicial proceedings which have been taken by the petitioner No.1 to save his tenancy rights in shape of criminal complaint filed against the respondent No.2 and others. The averments made in the complaint about transfer of tenancy right by the petitioner No.1 to Pravinbhai Chandubhai Patel itself is a cock and bull story, which would not even inspire any confidence on bare reading. It should be presumed that no person acts against the law and the tenancy rights covered under the Bombay Rent Act are not transferable as sub-tenancy even is not permitted under that statute. To shield this averment, therefore, it is further averred that the original owner approved such transfer but there is nothing on record to believe this fact even at this stage and, therefore, from bare reading of the complaint, it becomes clear that the complaint is filed by the respondent No.2 against the petitioners as a counter blast of the complaint filed by the petitioners against respondents No. 2 and others for grabbing the possession of the shop in CR.MA/79920/2002 12/12 JUDGMENT question and, undoubtedly, the petitioner No.1 was the tenant of the said suit shop because of the rent receipts and insurance receipts placed on record. It must not be forgotten that there appears to be several disputes between the parties about running of the business in partnership, for which civil suits are pending. It appears that, as an off- shoot of this civil dispute and to curb the tenancy rights of the petitioner No.1, the present complaint is filed, which is nothing but the abuse of process of law and is required to be quashed as no offence is disclosed even from bare reading of the complaint after taking into consideration the established facts surrounding such averments , which this Court could not ignore. 10. In this view of the matter, this Criminal Misc. Application is allowed. Court Inquiry Case No. 3 of 2002, filed by respondent No.2 against the petitioners in the court of Judicial Magistrate, First Class, at Anand, for the offences punishable under Sections 420, 465, 467, 471 and 120(B) of the Indian Penal Code along with the orders passed by the Judicial Magistrate, First Class, at Anand, to forward the said complaint to Vallabh Vidyanagar Police Station for investigation under Sections 156 (3) of the Code of Criminal Procedure are quashed. Rule is made absolute. (J.R. VORA, J.) pnnair