Section 482 Cr.P.C.; Raysingbhai Kanjibhai Gamit Vs. State [Gujarat High Court, 05-08-2016]

Criminal P.C. 1973 – S. 482 – Penal Code, 1860 – Ss. 452, 447, 504, 506(2) & 114 – exercise of power under – jurisdiction of High Court – scope of – discussed.


IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

Date :5/08/2016

SPECIAL CRIMINAL APPLICATION NO. 1530 of 2011

RAYSINGBHAI KANJIBHAI GAMIT & 5….Applicant(s) Versus STATE OF GUJARAT & 2….Respondent(s)

Appearance: MR RAJESH K SHAH, ADVOCATE for the Applicant(s) No. 1 – 6 MR BALRAM D JAIN, ADVOCATE for the Respondent(s) No. 3

JUDGMENT

1. The petitioners – original accused have approached this Court by way of present petition for seeking quashing and setting aside the complaint being FIR No.I-C.R.No.131 of 2007 lodged before the Vyara Police Station for the offence punishable under

Sections 452, 447, 504, 506(2)and 114 of the Indian Penal Code

and also the proceedings of Criminal Case No.2494 of 2007 pending before the JMFC,Vyara.

2. The case of the petitioners is that petitioners belonged to tribal community of District Tapi and are marginal farmers and labourers. The petitioner No.1 is running a tailoring shop in the name of King Master Tailor at J.P.Shopping Center. Said Shop No.15 is constructed and administered by Vyara Nagarpalika. The respondent No.3, who is the original complainant, is also having two shops at the very same J.P.Shopping Center and carrying on business in the name of Welcome Garment and the original complaint is dealing in the business of readymade garment. Somewhere around in the year 1994-95, Vyara Nagarpalika had allotted Shop No.15 to the petitioner No.1 and since then, petitioner No.1 is in possession of the said shop. The said shop is also recorded and registered with Vyara Nagarpalika under the Shops and Establishments Act,2006.

3. It is also the case of the petitioners that on 16.9.2004, respondent No.3 entered into an agreement to sell with the petitioner No.1 and in respect of that agreement, the petitioner No.1 had also filed a Regular Civil Suit No.107 of 2007 on 24.10.2007. Despite the aforesaid circumstance, respondent No.3 had filed the criminal complaint with Vyara Police Station being I-C.R.No.131 of 2007 on 25.10.2007 immediately after the date of filing of the suit. It is the case of the petitioners that this criminal complaint came to be filed with a view to frustrate the civil proceedings which came to be generated by the petitioners in the form of Regular Civil Suit as referred to above and therefore, by contending that petitioners have submitted that this amounts to abuse of process of law. Therefore, the complaint in question deserves to be quashed. It was also pointed out in the petition by the petitioners that in the Regular Civil Suit referred to above, an injunction application below Exh.5 came to be allowed vide order dated 27.5.2008 whereby, the civil court directed respondent No.3 not to enter the shop of petitioner No.1, namely, Shop No.15 situated at J.P.Shopping Center, Vyara. It is the case of the petitioners that In-charge Police Inspector, Vyara Police Station, Vyara, at the instance of original complainant i.e. present respondent No.3, has registered the complaint against the petitioners and carried out the investigation and filed the charge-sheet in the court of learned JMFC,Vyara on 28.11.2007 and then, a criminal case has been registered before the trial court bearing Criminal Case No.2494 of 2007. By submitting this, a case is put up by the petitioners before this Court in the petition that filing of the complaint by respondent No.3 is nothing but a step in the direction of abusing the process of law and therefore, requested to invoke the jurisdiction of this Court under Section 482 of the Cr. P.C.

4. This Court while entertaining the petition at the initial stage issued the notice on 19.6.2011 and subsequently, after hearing the learned counsel representing the parties, passed an order admitting the petition and while admitting, the Court has granted ad-interim relief in terms of Para.11 (c) till further hearing. The order dated 19.6.2012 reads, thus;

“1. Present petition has been filed by the petitioner under Articles 14, 19, 21 and 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 for quashing the FIR being I- CR.No.131/2007 registered with Vyara Police Station, Dist- Tapi, on the grounds stated in the petition.

2. Heard learned advocate Mr.Rajesh Shah for the petitioner, learned APP, Mr.H.L. Jani for the respondent No.1-State of Gujarat and learned Advocate Mr.Balram Jain for respondent No.3-original complainant.

3. Having perused the papers and considering the contentions as well as order passed by the learned Principal Civil Judge, Vyara in Regular Civil Suit No.107 of 2007 on 24.10.2007, referred to the various documents, some of which are produced on record, the matter requires consideration. It may be noted that the certificate of Vyara Nagarpalika placed on record, which has been referred and there is also reference to the documents with regard to the electric connection and the Chief Officer of Vyara Nagarpalika having stated that the shop in question may be transferred in the name of the applicant. Therefore, having regard to the aforesaid aspect and also the documents, the matter requires consideration. It is also required to be noted that appeal has been preferred against the order below Exh.5 in the Civil Suit No.18/2005 and even Appellate Court has also ordered to maintain status-quo. Therefore, following order is passed:

RULE returnable on 4th week of September, 2012.

Ad-interim relief in terms of Para 11(C) till final hearing of this petition. Direct Service is permitted.”

5. Before dealing with the submissions of the respective parties, a brief circumstance encircling the complaint in question is worth to be taken note of. In brief, the case of the complainant is since about more than 23 years, the respondent No.3 is dealing in the business of clothes and petitioner No.1 – Raysingbhai Kanjibhai Gamit has been doing a tailoring work and for stitching the read-made garments on frequent occasions, petitioner No.1 was taking the clothes from the complainant and in that context, petitioner No.1 came close with the complainant. It is the case of the complainant that somewhere in 2004 the petitioner No.1 placed offer that he wants to sell Shop No.15 situated in J.P. Shopping Center and since the respondent No.3 – complainant wanted to purchase the same, an amount came to be determined and in the presence of wife of the petitioner No.1 – Raysingbhai, in a gradual process, an amount of Rs.2 lacs came to be paid by the complainant. So much so that upon receipt of this amount in gradual process even an agreement with possession also came to be executed on 13.9.2004 and the said stamp paper was notarized. As a result of which, a further amount of Rs.50,000/- which was left out, was also paid and in addition thereto, charges about light bill and other incidental charges which were outstanding also came to be paid by the complainant and in all, in addition to earlier amount even Rs.60,000/- have been paid and pursuant to agreement to sell, the possession has already been entrusted by the petitioner No.1 and the possession is very much with the complainant. It is further the case of the complainant that after receipt of the complete consideration of sale by virtue of agreement to sell, the petitioner No.1 came back with a request to hand over back the possession of the shop, failing which a threat was administered that if possession will not be entrusted back, the complainant will be proceeded and fixed in atrocity case. In addition thereto, to resolve the dispute amongst the petitioner No.1 and respondent No.3 – complainant, even deliberation took place before the Nyay Samiti wherein also, pre-settlement took place but, not finalized and resultantly, to the surprise of the complainant, on 16.10.2007 in the morning hours around 5.00 O’clock the petitioner No.1 herein broke upon the lock of the shop, thrown the goods belonging to respondent No.3. At that time, a specific request was made not to precipitate such kind of action. Thereafter, at about 8.30 a.m. when the complainant heard the noise near his Shop Nos.6 and 7, he along with other persons had gone to that portion where he found that petitioner No.1 herein along with other three persons were shouting and conveying to throw the goods belonging to him out of the shop and also administering threats and it is upon that threat to death was given, the police was called who arrested the petitioner No.1 herein and other assailants and thereby, they have committed a serious offence of breaking open the lock of the shops belonging to the respondent No.3 – complainant as well as the shop in question, namely, Shop No.15. This complaint came to be investigated by the Investigating Officer and a detailed charge-sheet came to be filed on 28.11.2007 and the case came to be registered as Criminal Case No.2494 of 2007. So on the basis of this background of complaint, the petitioners have brought the present petition.

6. Mr.R.K.Shah, learned counsel appearing on behalf of the petitioners submitted that essentially the issue involved is of a civil nature and respondent No.3 has misused the criminal law by putting it to motion by filing a false and frivolous complaint. It was also contended by learned counsel that with a view to frustrate the proceeding of suit, the present complaint is filed and though there is a mandatory direction given in an injunction application on 27.5.2008 by the civil court, an attempt is made to convert a civil dispute into criminal and therefore, the respondent No.3 has abused the process of law. It was also contended by learned counsel that merely an unregistered agreement took place on 16.9.2004 about sale of the shop in question and thereby, it is contended that no absolute rights are transferred and therefore, filing of the complaint is nothing but a sheer abuse of process of law. He submitted that even if any grievance is left out by respondent No3, same could have been and can be ventilated in an appropriate proceeding and certainly, not by way of the complaint in question. It was also contended by learned counsel that petitioners are not having any criminal background and are belonging to a particular community as referred to in the petition and therefore, learned counsel submitted that their status in the society may also be considered so as to deal with the petition under Section 482 of the Cr.P.C. Learned counsel submitted that the trial has not commenced and therefore, in the background of this fact, even if charge-sheet is filed, the inherent jurisdiction under Section 482of the Cr.P.C. can well be exercised.

6.1 To substantiate these contentions, learned counsel for the petitioners has relied upon various decisions