2017 Supreme(Guj) 705

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
V.M. Pancholi, J.
Amit Rajkumar Nihalani and Ors. - Appellants
Vs.
State of Gujarat and Ors. - Respondents
Criminal Misc. Application (for Quashing & Set Aside FIR/Order) No. 17820 of 2011
Decided On : 04-04-2017

Headnote:

Code of Criminal Procedure, 1973 -Section 482, 170,169 ,162,154,173 -Indian Penal Code -Sections 406, 420, 467, 468 and 471 - impugned FIR is filed by the present respondent No. 2 against the applicants in which it has been alleged that, there was devastating earthquake in Kutch district and number of buildings had collapsed. The government, had, therefore, issued package for compensation to the owners of the buildings which collapsed during the said earthquake. It is alleged that the applicants-accused had submitted an application for Flat Nos. 401 and 402 of Square Apartments situated at Plot No. 313, Ward 12-B for financial assistance. It is further alleged that the accused had submitted photocopy of the light bill, certificate of Hariom Builders issued as well as the affidavit. On the basis of the application and supporting documents submitted by the accused, the Additional Collector, Gandhidham by an order sanctioned the financial assistance to the tune of Rs. 1.75 lacs each and first installment of Rs. 70,000/- was granted. As per the resolution issued by the Revenue Department, 90% of financial assistance was to be provided from mobilization funds and therefore the amount of Rs. 87,500/- came to be sanctioned by Additional Collector,. Thus, the amount of Rs. 1,57,500/- was paid by cheques to the applicants-accused. The accused had submitted the indemnity bond and also stated on oath about their occupying the flat from It was also stated that the applicants nor their family members were builders and promoters of the said apartment. It was also mentioned in the said indemnity bond and affidavit that the applicants are not possessing any other house in their name or in the name of their family members except the aforesaid flat. It is further alleged that one had submitted written application wherein it was alleged that the applicants-accused had obtained financial assistance on the basis of false evidence and in fact they are actually sons of the builder. On the basis of the said application received by the aforesaid person, the Additional Collector issued notice to the applicants-accused, however, they did not remain present on the date of hearing and therefore the Additional Collector passed an order and cancelled the order of granting financial assistance. It is further alleged that though notices were issued to the applicants-accused for deposit of the aforesaid amount, such amount was not deposited and therefore the impugned FIR came to be filed. learned advocate. appearing for the applicants and learned for the respondents -Held Keeping in mind the aforesaid decisions rendered by this Court as well as the Honble Supreme Court, if the facts of the present case are examined, it is an admitted position that the subsequent FIR is filed by the present respondent No. 2 for the same subject matter on the same accusations when the complaint filed by Mr. Advani is pending before the learned., Learned has already ordered investigation under Section 202 of the Code in respect of the first complaint wherein the concerned police officer has submitted his report after making necessary inquiry. Trial of the said case is pending. Thus, if the impugned FIR is allowed to continue, it would be considered as the gross abuse of the process of the Court which is not permissible. Hence, this Court is of the opinion that when complainant Mr. Advani failed to get the order of investigation under Section 156(3) of the Code, impugned FIR through is filed for same incident. Moreover, amount in dispute is already deposited by accused before concerned authority. Thus, in the facts of the case, powers under Section 482 of the Code are required to be exercised in the interest of justice. In view of the aforesaid discussion, this application is allowed. The impugned FIR being C.R. No. I-212 of 2011 registered a A Division Police Station for the offences punishable under Sections 406, 420, 467, 468 and 471 of Indian Penal Code is quashed and set aside. Rule is made absolute -Application is Allowed.