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2019 Supreme(Guj) 440
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Vinod Babubhai Patel – Petitioner
Versus
State of Gujarat – Respondent
R/Criminal Misc. Application No. 6097 of 2015
Decided On : 04-02-2019
For the Petitioner: Mr. Shalin Mehta, Senior Counsel With Mr. Archit P Jani
For the Respondent: Mr. Manish Bhatt, Senior Counsel With Mr. JA Adeshra, Ms. Moxa Thakker, APP
Headnote:
Criminal Procedure Code, 1973 – Section 482 – Quash of FIR and issuing summons to the applicants and taking cognizance of the case – Accused persons guilty of defalcation, misappropriation, criminal breach of trust – Delay in Filing FIR – Held, In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay – Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court – where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings – Complaint deserves to be set aside on the ground of delay also as the same is bereft of any particulars explaining the same – Petition allowed [Para 6, 7]
Facts of the Case:
Quash of FIR and issuing summons to the applicants and taking cognizance of the case – Accused persons guilty of defalcation, misappropriation, criminal breach of trust – Delay in Filing FIR
Finding of Court:
In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay – Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court – where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings – Complaint deserves to be set aside on the ground of delay also as the same is bereft of any particulars explaining the same.
1. By way of present writ application, the applicants have prayed, inter-alia, that :-
“21(B) YOUR LORDSHIP may be pleased to quash and set aside the criminal complaint – Police Inquiry No.617/13 dated 19.12.2013 (Annexure-A) filed by the respondent nos.2 and 3 as also the order passed by the learned Judicial Magistrate First Class at Mehsana issuing summons to the applicants and taking cognizance of the case.
(C) This Hon'ble Court may be pleased to quash and set aside the entire proceedings of Criminal Case No.808 of 2015 pending before the Court of Ld.9th Additional Judicial Magistrate First Class, Mehsana.
(D) This Hon'ble Court may be pleased to quash and set aside the order dated 30.01.2015 (Annexure-B) – Police Inquiry NO.617/13 of issuance of the summons to the applicants as also the order below Exh.12 (Annexure-C) dated 05.03.2015 in Criminal Case No.808 of 2015 pending before the Court of Ld.9th Additional Judicial Magistrate First Class, Mehsana.
(E) This Hon'ble Court may be pleased to give the direction to Director General of Police, Gujarat to inquire into the circumstances and the reasons of effecting the order of warrant against the applicants on 21.03.2015 (Saturday) and after perusing the report of Director General of Police, this Hon'ble Court may be pleased to impose exemplary cost against the Police Officers who have acted in such manner on 21.03.2015 (Saturday).”
2. The brief facts leading to filing of the present application are as under:-
2.1 The applicant no.1 is the husband of the applicant no. 2. The complainant and accused are near relatives. Babubhai Patel has two sons viz. Sureshbhai Babubhai Patel and Vinodbhai Babubhai Patel and one daughter viz. Sulekhaben. Sulekhaben got married to one Mr.Vinay Patel. Mr.Vinay Patel has brother viz. Aashutosh, who is complainant no. 1 and the wife of Aashutos, who is complainant no. 2. Vinodbhai Alpaben, Sureshbhai, Babubhai and Dahyabhai are the accused.
2.2 M/s. Suyog Sale and marketing was a partnership firm and was incorporated in the year 1999.
2.3 The applicants and the original complainants were the partners in M/s Suyog Sales and Marketing. The applicant nos.1, 2 and 3 and one Shikhaben Sharma have partnership of 68% and the complainants are partners have 32% in M/s. Suyog Sale and Marketing firm. The firm was formed in the Year 2000.
2.4 In the year 2007-08, the applicants moved to U.S. and have been staying there since then.
2.5 The complainant instituted Summary Suit No. 650 of 2014 at City Civil Court, Ahmedabad and Summary Civil Suit No 15 of 2013 at learned Senior Civil court, Mehsana, against the partners including the applicants claiming the amounts towards debt. These Civil Suits are pending before the concerned Civil Courts. It is stated by the applicants that they have come to know about pendency of the Civil Suits in 2015.
2.6 The complainants on 19.12.2013 filed a complaint under section 202 of the Criminal Procedure Code (“Code” for short) before the Judicial Magistrate First Class, Mehsana (“J.M.F.C.” for short). The Complaint is Police Inquiry No.617 of 2013. The complaint is filed for the offence punishable under sections 120B, 406, 413, 420, 457, 465, 467 and 468 of the Indian Penal Code, 1860 (“IPC” for short). The main allegations against the accused are that the accused borrowed money from the partnership firm of Rs.1,73,92,103/- and have not paid the same. The summons was issued on 30.01.2015. Thereafter, the same is registered as Criminal Case No.808 of 2015.
2.7. The applicant no.1 arrived in India on 18.03.2015 and the applicant no.2 arrived in India on 08.03.2015 to attend a wedding ceremony and other religious function at their daughter in law's house. It is the case of the applicants that the complainant anticipated that the applicants would attend the wedding and other religious purpose at Mr.Ratibhai Patel’s house. Therefore, the complainant with mala fide intention moved an application on 05.03.2015 for taking the matter on
