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2017 Supreme(Guj) 966
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Biren Vaishnav, J.
Hasubhai Bhurabhai Thakkar and Ors. – Appellant
Vs.
State of Gujarat and Ors. – Respondents
Criminal Misc. Application No. 3351 of 2010
Decided On : 05-05-2017
For the Appellant :S.P. Kotia, Advocate
For the Respondent: Himanshu K. Patel, Additional Public Prosecutor
Headnote:
Code of Criminal Procedure, 1973 – Section 482 – Indian Penal Code, 1860 – Sections 341, 452, 427 and 114 – Seeking quash of First Information Report – Complaint- she is the owner of two shops, she states that, the shop has been given on rent to Ace Tele Services, rent agreement of which is produced on record – Applicants- accused Nos. 1 and 2 respectively alleging that litigations between complainant and the accused pertaining to the said shops is pending – Pending such litigations accused have sold the shops to anti social elements – She does not know the names of such purchaser – Shop No. 157 has been sold and as far as shop No. 156 is concerned, it is a matter pending litigation in Court. The complaint further states that the shops have been sold in violation of a Family Agreement, according to which shops were to be in the ownership of the complainant – Grievance in the complaint appears to be that between shops a wall has been erected – Tenant on repeated complaints to the police has failed to gain appropriate relief. According to the complainant, in spite of pending litigations between her and the accused, no panchnamas are being made to show the correct position and the accused are continuing to commit fresh offences. Repeated representations to the Deputy Inspector General of Police have fallen on deaf ears present complaint – Held, In the light of the past history of the complainant invoking the criminal machinery, Final Report filed under Section 173 of the Code of Criminal Procedure in the complaint lodged being 790 of 2007, the reading of the Summary Report indicates that the simmering dispute between the parties was regarding the ownership of the shops – The police authorities have not prima facie found that the ownership of the shops was of those of the accused – Needless to refer to all the judgments which Mr. Kotia has sought in support of his contention. Even in the case of Anil Mahajan vs. Bhor Industries Ltd., reported in 2005 10 SCC 228, though while dealing with a complaint lodged for an offence of cheating the Honble Supreme Court referred to the earlier decision and held as under –, this Court further held that there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence – Based on the materials in that case, the Court concluded that the case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting – Even basic reading of the complaint discloses that the dispute is essentially of a civil nature conclusion which this Court has arrived at on examination of the complaint, past history of the litigations that are pending, it is a fit case in which extraordinary powers under Section 482 of the Cr.P.C. be exercised and the complaint so made be quashed – Application Allowed. (Paras 27 and 28)
Biren Vaishnav, J.
1. Section 482 of the Code of Criminal Procedure is invoked by the applicants praying that the First Information Report being C.R. No-I-30/2010 registered at 'A' Division Police Station, Bhavnagar, against the applicants be quashed.
2. Respondent No. 2 Ushaben Ratibhai Bhurabhai, has filed the aforesaid complaint against the present applicants on 03.02.2010. According to the complaint, the applicants have by their acts, committed offences under Sections 341, 452, 427 and 114 of the Indian Penal Code. The complaint is annexed as Annexure-'A' to the present application.
3. On reading of the complaint, the following factual scenario emerges:
3.1 According to the complaint, she is the owner of two shops, shops Nos. 156 and 157 situated at "Madhav Darshan". In the complaint she states that, the shop has been given on rent to 'Ace Tele Services', rent agreement of which is produced on record. The applicants herein, have been shown as accused Nos. 1 and 2 respectively alleging that litigations between the complainant and the accused pertaining to the said shops is pending. Pending such litigations, the accused have sold the shops to anti social elements. She does not know the names of such purchaser. Shop No. 157 has been sold and as far as shop No. 156 is concerned, it is a matter pending litigation in Court. The complaint further states that the shops have been sold in violation of a Family Agreement, according to which, the shops were to be in the ownership of the complainant. The grievance in the complaint appears to be that between shops Nos. 156 and 157 a wall has been erected. The tenant on repeated complaints to the police has failed to gain appropriate relief. According to the complainant, in spite of pending litigations between her and the accused, no panchnamas are being made to show the correct position and the accused are continuing to commit fresh offences. Repeated representations to the Deputy Inspector General of Police have fallen on deaf ears, hence, the present complaint.
4. In order to appreciate the complainant's grievance and whether the First Information Report so lodged deserves to be quashed pending civil litigations between the parties needs a brief reference.
The complainant Ushaben, prior to filing of the present First Information Report, filed a Civil Suit before the Bhavnagar Principal Senior Civil Judge, being Civil Suit No. 49 of 2010 dated 29.01.2010. The plaint and the suit is annexed as Annexure 'B' to the paper book. The present applicants are the original defendants in the civil suit. The prayer in the suit filed by the complainant is that the shops is question namely shop Nos. 156 and 157 at "Madhav Darshan" are of the ownership of the original plaintiff and a declaration accordingly be issued that she being the owner of the shop. The accused-original defendants have no right, title or interest over such shops.
5. Perusal of the plaint so filed also reveals the same narrative as in the First Information Report. Respondent No. 2 herein, in her plaint has stated that the shop, particularly, shop No. 157 has been sold by the defendants/accused to one Kamleshbhai Pravinchandra Shah, which is illegal, and therefore, she has given appropriate notices to the purchaser. The sale is in violation of a family arrangement, according to which, such shops should have come to her and therefore, she be declared owner of shops Nos. 156 and 157. The complaint also mentions of certain pending litigations between the parties. Fruitful it will be also to mention that the plaint talks of a criminal case No. 790 of 2007 invoking sections 465, 467, 406, 420, 419 and 471 read with Section 114 of the Indian Penal Code, filed before the Judicial Magistrate First Class.
6. It appears that, pending the First Information Report and the suit, panchnama has been drawn and a Court Commissioner has also taken a visit and filed a report. The Court Commissioner's Report dated 21.02.2010 indicates that, shop No
