CR.MA/78320/2000 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 783 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE J.R.VORA ========================================= 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 ? ========================================= RAJUBHAI @ RAJESHBHAI VALLABHBHAI KUNDARIA (PATEL) Versus STATE OF GUJARAT & ANR ========================================= Appearance : MR YOGESH S LAKHANI for Applicant MR L.B. DABHI APP for Respondent No. 1 MR CL SONI for Respondent No.2 ========================================= CORAM : HONOURABLE MR.JUSTICE J.R.VORA Date : /08/2008 CAV JUDGMENT 1. Present petition is preferred by original accused of `M' Case No. 62 of 1999, to quash the said case, pending before the Judicial Magistrate, First Class, at Dhoraji, exercising powers by this Court under CR.MA/78320/2000 2/7 JUDGMENT Section 482 of the Code of Criminal Procedure. 2. As per brief facts of the case, present respondent No.2 - Vrujlal Gordhanbhai Dhaduk, presented a private complaint before Judicial Magistrate, First Class, against the petitioner for the offences punishable under Sections 420 and 406 of the Indian Penal Code. It was alleged in the complaint that accused – petitioner was truck driver of the truck bearing Regn. No. GJ-3-T-4024 owned by the complainant – respondent No.2 and that truck was handed over to the petitioner as a driver and who had taken the truck on 01st of October, 1999, for 15 days at Bhopal and the petitioner was to return at Dhoraji, on 16th of October, 1999. Complainant and his brother inquired about the petitioner as he did not return to Dhoraji in time, but whereabouts of the petitioner, according to allegation, were not available and his wife was evasive. Ultimately, complainant – respondent No.2 came to know that the petitioner was in habit of gambling and since he lost in gambling, he had sold the said truck to somebody, which was worth of Rs. 4 lacs and, hence, complaint for the offences punishable under Sections 420 and 406 of the Indian Penal Code. On 29th of October, 1999, learned Magistrate, First Class, Dhoraji, forwarded this complaint to the Police Sub-Inspector, Patanvav Police Station, for investigation under Section 156(3) of the Code of Criminal Procedure CR.MA/78320/2000 3/7 JUDGMENT and to report and, hence, this petition for quashing the said complaint. 3. Learned Advocate Mr. Harnish Darji for learned Advocate Mr. Y.S. Lakhani for the petitioner, learned Advocate Mr. C.L. Soni for original complainant – respondent No.2 and learned APP Mr. L.B. Dabhi for the respondent No.1 State were heard at length. 4. Learned Advocate for the petitioner argued that the theory, which was advanced by the complainant is falsified by the statutory record as certificate issued by RTO Office, copy of which is produced on record, denotes that the said truck was sold even on 6th of July, 1999 to one person named as Jayeshbhai Chaturbhai Patel and necessary entries are made in RTO records. It was submitted that the petitioner had partnership with the complaint in respect of this truck and it was agreed that the petitioner should pay all the installments of the finance as the truck was purchased in the name of the complainant by taking loan from finance and accordingly the petitioner has paid up all the installments to the finance company and got released the truck from the finance. The petitioner, as being owner of the said truck, sold the truck on 09th of July, 1999 and, therefore, the question of taking the truck by the petitioner as a driver on 1st of October, 1999 would not arise. It is also submitted that the petitioner is not the truck driver, but he is doing CR.MA/78320/2000 4/7 JUDGMENT the business of contractor and supplier of the material for construction and petitioner has many vehicles in the name of his family, and as such, he had no occasion to serve as driver. It is submitted that, therefore, the complaint is the abuse of process of law and is required to be quashed. 5. As against that, learned Advocate Mr. C.L. Soni for the respondent No.2 – complainant submitted that the truck stood in the name of the complainant – respondent No.2, which is evident from the ARTO record and owned by respondent No.2. Accused was never the owner of the truck and he could not have sold the truck to third party. It is submitted that this truck was financed by Ashok Leyland and the receipts which are produced on record of this petition are of Riddhi Finance, which is a matter of investigation, and at this stage, when investigation is pending, no interference is required by this Court exercising extraordinary powers. Otherwise also, it is not the case of the accused – petitioner that the complainant was not the owner of the truck. Learned Advocate for the respondent No.2 relied upon a decision of the Apex Court in the matter of STATE OF HARYANA AND ORS vs. BHAJANLAL AND ORS., as reported in 1992 Supp (1) SCC 335. 6. While learned APP Mr. L.B. Dabhi submitted that there is grievance of the offences having been committed by the accused, which CR.MA/78320/2000 5/7 JUDGMENT is still to be investigated and, hence, interference, at this stage, may not be required under extraordinary powers of this Court. 7. Section - 482 of the Criminal Procedure Code, 1973, confers sufficient and independent powers on the High Curt 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 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 CR.MA/78320/2000 6/7 JUDGMENT absurd and inherently improbable, on the basis of which, a prudent man can reach to 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. While going through the facts of this case, what is transpired from the record is that, the allegation is in respect of misappropriation and causing cheating towards complainant by the accused. What is stated in the complaint by respondent No.2 is all together against the statutory record and, therefore, is improbable. True it is that, the name of the respondent No.2 – complainant appears in RTO book of truck bearing No. GJ-3-T-4024, at the same time, the same record discloses that this truck was transferred on 6th of July, 1999 to one Jayeshbhai Chaturbhai Patel. Jayeshbhai Chaturbhai Patel has filed an affidavit to the effect that he had purchased this truck from present petitioner – original accused on 09th of July, 1999. The petitioner has also submitted on record receipts of the installments paid to Riddhi Finance Company in respect of the said truck. Now, these facts of the record makes it improbable that as a driver of the truck, CR.MA/78320/2000 7/7 JUDGMENT petitioner might have taken the truck on 1st of October, 1999 and might have sold. Therefore, without embarking upon any inquiry, it is crystal clear that the theory advanced in the complaint is so improbable that no prudent man would reach to the conclusion that there are grounds to proceed against the accused. No explanation at all is found in the complaint as to diametrically opposite facts contained in the statutory record. In this view of the matter, this Court can come safely to the conclusion that there are no grounds at all to proceed against the accused even from the contents of the complaint and, hence, the complaint being abuse of process of the court, is required to be quashed and, hence, the following order is passed : “ This Criminal Misc. Application is allowed. Criminal Inquiry Case No. 62 of 1999 and `M' Case No. 62 of 1999 pending before the Judicial Magistrate, First Class, at Dhoraji, as filed by the respondent No.2 against the present petitioner, for the offences punishable under Sections 420 and 406 of the Indian Penal Code, is directed to be quashed along with the orders passed by learned Judicial Magistrate, First Class, Dhoraji, to forward the said complaint to the Police Sub-Inspector, Patanvav Police Station, to investigate under Section 156(3) of the Code of Criminal Procedure.” Rule made absolute accordingly. (J. R. VORA, J.) pnnair