CR.MA/4119/1998 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 4119 of 1998 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE ========================================================= 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 ? ========================================================= B D KATHROTIA & Ors- Petitioners Versus STATE OF GUJARAT & Anr.- Respondents ========================================================= Appearance : MS. MEGHA JANI for Petitioners. MR UR BHATT, ADDL.PUBLIC PROSECUTOR for Respondent : 1, MR PRAKASH K JANI for Respondent : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE Date : 08/12/2008 ORAL JUDGMENT The petitioners are the original accused in Criminal Case No.634/1998 filed before the learned Judicial Magistrate, First Class, Dhanera, charging CR.MA/4119/1998 2/8 JUDGMENT the petitioners (accused therein) for the offences punishable under Sections 166, 167, 170, 192, 384, 418, 419, 420, 465, 468 & 469 of the Indian Penal Code. The said complaint was filed on 22.9.1998 and the learned J.M.F.C, Dhanera, by an order dated 28.9.1998, issued process in respect of offences punishable under Sections 170, 192, 384, 419 & 420 of I.P.C against the petitioners-accused. The present petition is preferred under Section 482 of the Criminal Procedure Code, praying for quashing the said complaint, registered with learned J.M.F.C. Dhanera as Criminal Case No.634/1998. 2. At the time of admission, interim relief in terms of Para-13(C) was granted by this Court, by virtue of which, further proceedings of the said criminal case came to be stayed till final disposal of the quashing petition. 3. The facts of the case, in brief, are that the complainant (respondent No.2 herein) had lodged the complaint alleging that he was the Secretary of The Ramuna Seva Sahakari Mandali Ltd., since 1960. Petitioner No.1 is an employee of the Banaskantha CR.MA/4119/1998 3/8 JUDGMENT District Central Co.op.Bank Ltd. Similarly, petitioners No.2 to 5 are also working as Junior Inspectors with the Banaskantha District Central Co.op.Bank Ltd., petitioner No.6 is the Chairman of the Ramuna Seva Sahakari Mandali Ltd., and petitioner No.7 is his nephew. 3.1 According to the complainant, accused No.6 asked him to fabricate a resolution in the Resolution-Book and make false signatures and while doing so, elect a person of his choice in the committee, which, the complainant says that he refused. Therefore, on 17.9.1998, accused No.6 went to the complainant with rest of the accused persons and told him that they have come from the Office of the Registrar and the entire record is to be seized and then handed over to Mr.D.V.Kotak, Junior Inspector of Dhanera Branch (accused No.2) and accused Nos.2 to 5 also joined the cause. The complainant says that he, therefore, handed over the record to the accused persons in presence of Patel Tejabhai Dharmabhai and Kanabi Ganeshbhai Hajabhai. He then says that he then made inquiry with the CR.MA/4119/1998 4/8 JUDGMENT Office of the Registrar, who found that no person had gone to his Office and no order was passed. The allegation is, therefore, that the Resolution-Book and other record were made to have been handed over by the accused persons with a view to fabricate the resolutions. 4. This Court has heard the learned advocates for the parties. 5. Learned advocate Ms. Jani, appearing for the petitioners-original accused persons, has pressed into service the following aspects:- If the nature of the complaint is seen, it is clear that there is no specific description about the place, where the transaction took place. The allegations are general in nature and made with some purpose. The second fold of the argument is that the complainant has expired long back somewhere in the year 2005 and undisputedly, no legal representative has ever approached any of the Courts, seeking permission to join the litigation in place of the deceased. In light of the allegations made in the complaint, the offences, for which the process is CR.MA/4119/1998 5/8 JUDGMENT issued, are not constituted and, therefore, the complaint may be quashed. 6. On the other hand, learned advocate Mr.P.K.Jani representing respondent No.2 here (original complainant) now deceased, addressed this Court on merits and opposed the petition. According to him, the matter may be sent back to the Magisterial Court for passing appropriate orders if the heirs and legal representatives of the complainant do not approach the Court. He conceded to the fact that the heirs have not approached him after the death of respondent No.2. Learned counsel Mr.Jani pointed out that, at least, an offence punishable under Section 170 IPC would be constituted, if not other offences, and for that limited purpose, the complaint may be kept alive. 7. Having considered the rival side contentions, it is clear that the complainant made allegations of offences punishable under several provisions of the Indian Penal Code, out of which, the process came to be issued only in respect of five offences by the learned Magistrate. The learned Magistrate did not CR.MA/4119/1998 6/8 JUDGMENT find merits in rest of the allegations. On perusal of the complaint, again, prima facie, only the case for an offence punishable under Section 170 IPC can be said to have been made out in the complaint, which can be proved only by the complainant because that is founded on the basis of what transpired between accused No.1 and the complainant. There are only two witnesses indicated in the complaint. But, barring this, so far as the rest of the offences are concerned, no case is made out, even prima facie, in the complaint. 8. The resultant effect is that even on merits, the quashing petition is to be allowed so far as the allegations of offences punishable under Sections 192, 384, 419 & 420 IPC are concerned. 9. The next question, therefore, is, what order can be passed, so far as the allegation made in the complaint for offence punishable under Section 170 IPC is concerned. As per the allegation made by the complainant in his complaint, the accused persons went to him on the stipulated date and accused No.1 represented as an officer from the Office of the CR.MA/4119/1998 7/8 JUDGMENT District Registrar, Co.operative Societies and other persons supported him. The complaint is silent on the question, whether, the witnesses were present at that point of time. However, as per the complaint, when the records were handed over, the witnesses were present. To prove, whether there was, in fact, impersonation or not, the fact that the accused made certain type of version, as alleged in the complaint, will have to be proved. It is not specifically alleged in the complaint that the witnesses were present at the time of alleged impersonation. 9.1 However, what is significant is that though the complainant has, without dispute, expired in the year 2005, his legal representatives have chosen not to pursue the complaint for nearly four years. Under the circumstances, the complaint cannot be proceeded before the trial Court and no fruitful purpose would be served by keeping the complaint alive only on this aspect. The petition, therefore, merits acceptance. 10. The petition is, therefore, allowed. The complaint bearing Criminal Case No.634/1998 filed by CR.MA/4119/1998 8/8 JUDGMENT respondent No.2 (orig.complainant) in the Court of learned Judicial Magistrate, First Class, Dhanera is hereby quashed and set aside. The order passed by the Magisterial Court on 28.9.1998, issuing process, would also stand quashed. Rule is made absolute. [A.L.Dave,J.] (patel)