Back
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
RAFIQ AJITBHAI THEBA - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CRIMINAL APPLICATION NO. 889 of 2019
Decided On : 25-06-2021
Constitution of India -Constitution of India-Code of Criminal Procedure-Section 482- Section 397(3) - Money Lending Act- Section 365, 506(2), 161, 165A- Criminal Revision – Second Revision – Inherent powers of Court under section 482 Cr.P.C – Scope of Section 397 read with Section 401
Finding of the Court:
Cr.P.C. bars a second revision application by the same party, as inherent powers under Section 482 Cr.P.C. cannot be utilized for exercising powers, which are expressly barred by the Code. There is no inconsistency between Section 482 and section 397(2) Cr.P.C. and quashing of proceedings under the inherent jurisdiction, when cause shown, is preserved under Section 482 Cr.P.C. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person accused/complainant cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code, since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. However, to meet the end of justice or to prevent abuse of process, the High Court as preserved with inherent power would be justified to exercise the inherent power - within the scope of Section 397 read with Section 401, found no reason to interfere with the order of the learned J.M.F.C. The learned Sessions Judge has found no ground to interfere with the impugned order while satisfying itself to the correctness, legality and propriety of the findings recorded in the order. This Court too, on examination of the reasons assigned by the learned J.M.F.C., does not find any reason to allow the petitioner’s prayer. No extraordinary case has been made out to show that there is any abuse of process of any Court or there is any requirement of invoking the inherent powers of this Court as the inquiry made by the Magistrate is in consonance with the provisions of law
Result: Petition dismissed
JUDGMENT :
1. Rule. Learned advocates waive service of notice of Rule on behalf of the respective parties. With the consent of the parties, the matter is heard finally today.
2. This petition has been filed under Article 226 and 227 of the Constitution of India as well as Section 482 of the Code of Criminal Procedure with a prayer to peruse the legality and validity of the judgment and order dated 02.04.2018 passed by the Judicial Magistrate, First Class, Tankara and order passed by the Sessions Judge, Morbi on 01.11.2018 in Criminal Revision Application No.19/2018; with further prayer to declare the same as illegal, unjust, arbitrary, suffers from the vice of non application of mind, exceeding in jurisdiction, so as to have partly allowed the Criminal Inquiry; with the prayer to direct the learned Judicial Magistrate to issue summons under Section 365, 506(2), 161, 165A of IPC and under the provisions of Money Lending Act; further prayer is also made to direct the Judicial Magistrate to issue summons against the accused no.9 who is respondent no.10 in the present matter.
3. It is the case of the petitioner that, he is doing agricultural work for maintaining his family. In order to purchase fertilizer and seeds for carrying out cultivation, the petitioner was in need of money. Therefore, three years ago he had borrowed Rs.1,00,000/- at 1% interest from respondent no.3. It is stated by the petitioner that he had repaid this amount along with interest, still however, respondent no.3 kept on demanding 10% interest from the petitioner and was threatening him.
3.1 It is contended by the petitioner that to get rid of the threat he borrowed money from respondent nos.4 and 6. It is stated that though the money was borrowed at a decided rate of 1%; however, respondent nos.2 to 9 demanded back the money at 10% interest. It is alleged by the petitioner that respondent nos.2 to 9 without any license have continued their illegal business of money lending and have extracted ten times more than the principal amount from many villagers of Mitana village.
3.2 The petitioner states that he was passing nearby Takdir Valkanizing Shop situated at Morbi Rajkot Road on his motorcycle on 20.02.2018 at 8:00 O’ clock in the night. At that time, the respondent nos.2 to 9 in connivance with each-other armed with baseball, pipe etc, came in Scorpio Car, started abusing him and demanded 10 times interest amount, beaten the petitioner with pipe and damaged the motorcycle, Sohilbhai owner of puncture shop is a witness to that incident. It is alleged that thereafter he was kidnapped in a Car from Mitana which stopped at about 2 kms. away from Mitana, in a forest area. However, the petitioner taking advantage of the darkness, ran away from the place towards the road and took lift in a truck, as he was under fear, he went to Ajmer Dargah.
3.3 Petitioner also states that he has recorded the threats given by the respondent no.2 on his phone. The memory card was produced before the lower Court. The petitioner states that his brother Nijubhai had sent a written complaint dated 21.02.2018 to the respondent no.10 alleging facts of illegal demand of 10% interest, and, his brother informed the police about petitioner being kidnapped and his whereabouts being not known, expressing apprehension that his brother was no more. The petitioner states that as no action was taken by respondent no.10 on the complaint dated 21.02.2018 of his brother, it was sent on 01.03.2018 to the Judicial Magistrate, First Class, Morbi, D.S.P., Dist. Morbi, C.P.I. Vakner, M.L.A. Tankara, Home Minister Gandhinagar, Chief Minister Gandhinagar and requested the authorities to do the needful. The petitioner has stated that respondent no.10 had come to take the statement of his wife Ruksanaben and it is alleged that respondent no.10 threatened and pressurized his wife to withdraw the complaint.
3.4 Further stated that, in reference to complaint dated 21.02.2018 and 01.03.2018, the brother of the petitione
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
