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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
B.N. KARIA, J.
PARESH JAYANTILAL AMIN – APPELLANT
Versus
STATE OF GUJARAT - RESPONDENT
CRIMINAL MISC.APPLICATION NO. 20348 of 2017 With CRIMINAL MISC.APPLICATION NO. 17369 of 2017 With R/CRIMINAL MISC.APPLICATION NO. 17371 of 2017 With CRIMINAL MISC.APPLICATION NO. 20356 of 2017
Decided on : 11-08-2021
Indian Penal Code,1806 – Section 406,420 and 120(B) – Criminal Procedure Code,1973 – Section 482 - Retention - Criminal breach of trust – Dispute civil in nature - Petitioner have preferred their petitions under Section 482 of Criminal Procedure Code with a request to quash and set aside complaint filed by the complainant i.e. respondent before the Court of learned JMFC being Criminal Case and process issued under Section 406, 420 and 120(B) of Indian Penal Code - As per averments made in the complaint, accused is a company and accused are the Directors and accused is son of accused - Transaction of selling goods (cotton bells) with accused – company was proceeded and the amount, which was payable, have not been paid and for that, cheques were issued in same were returned as dishonored and therefore, a complaint was filed against accused persons- Whether allegations in complaint are otherwise correct or not.
Finding of the court :
Even if the impugned FIR is taken at its face value, the same does not disclose the offence as alleged. The impugned FIR reflects that the dispute is purely of civil nature which fact is even evident from the submissions made by the learned Counsel that the parties have amicably settled the issue and have entered into the written deed of settlement. In the facts and circumstances of the case, therefore, the institution of criminal proceedings pursuant to the impugned FIR would amount to abuse of process of court and law and therefore, in order to secure the ends of justice, the impugned FIR deserves to be quashed-In view of facts that despite civil nature business transactions was carried out between parties, payment was not made by petitioner of said business transactions to the complainant, and impugned complaints filed under Sections 406 and 420 of the IPC, if entire complaints are taken in to consideration, same does not disclose offences as alleged therein - Impugned complaints are of purely of civil nature - In the facts and circumstances of the case, initiation of criminal proceedings pursuant to impugned complaints which amounts to abuse of process and judgment relied by the learned advocate for respondent are not applicable to present case therefore, in order to secure ends of justice, impugned complaints are required to be quashed and set aside.
Result : Petitions allowed
ORDER :
1. Rule. Learned APP Mr. H.K. Patel waives service of rule for the respondent No. 1 State and learned advocate Mr. Tulsi Savani for the respondent No.2, in these four matters.
2. In this group of four matters, common question and similar facts are involved, learned advocate appearing on behalf of either side requested to decide these four matters by passing common order as identical question is involved, therefore common judgment is passed treating Criminal Misc. Application No. 20348 of 2017 as a lead matter.
3. The brief facts of the present case may be referred as under:
4. A private complaint was filed by Mr. Ashokbhai Manjibhai Lathiya – Director of Ambuja Ginning Pressing & Oil Co. Pvt Ltd (who will be referred as complainant) before the Court of learned JMFC, Talaja, District – Bhavnagar under Section 406, 420 and 120(B) of the IPC, which was registered as Criminal Case No. 601 of 2017. As per the averments made in the complaint, accused No. 1 is a company and accused Nos. 2 to 5 are the Directors and accused No. 6 is son of accused No. 3. The transaction of selling goods (cotton bells) with the accused No. 1 – company was proceeded in the year 2014-15 and the amount, which was payable, have not been paid and for that, cheques were issued in the year 2014 but same were returned as dishonoured and therefore, a complaint was filed against the accused persons. The petitioner in petition being Criminal Misc. Application No. 20348 of 2017 is shown as accused No. 3 being Director of the accused No. 1 Company. The petitioner in petition being Criminal Misc. Application No. 17369 of 2017 is shown as accused No. 6.
5. Heard learned advocate Mr. Manish J. Patel appearing for the petitioner in all these four petitions, learned advocate Mr. Tulsi Savani appearing for the respondent No. 2 – the complainant in all four petitions and learned APP Mr. H.K. Patel for the respondent State.
6. Learned advocate Mr. Tulsi Savani appearing for the respondent No. 2 in Criminal Misc. Application No. 20348 of 2017 has not filed his Vakalatnama on behalf of respondent No. 2. He sought permission to file his Vakalatnama. Permission is hereby granted to file his Vakalatnama.
7. Learned advocate for the petitioner has submitted in his arguments that in the entire complaint, there are no specific allegations made by the respondent No. 2 that the petitioner dishonestly delivered the property, misappropriated the same and converted the property to his own use or disposed of the property. It is further submitted that to attract provisions under Sections 415 of the IPC, the complainant must establish dishonest intention for inducing any person in any property. It is further submitted that non making of payment of transaction is converted by the respondent No. 2 in Criminal proceedings, saying that criminal breach is committed by the petitioner. It is further submitted that if the cheques
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