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2023 Supreme(Guj) 3
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
Rajeshbhai Hardhorbhai Manka – Applicant
Versus
State Of Gujarat – Respondent
R/Criminal MISC. Application No. 21675 of 2019 with Criminal MISC. Application (For Vacating Interim Relief) No. 1 of 2022
Decided On : 20-01-2023
For the Applicant : Mr. Bhushan B. Oza.
For the Respondent: Mr. Aman A. Sama, Mr. Meet D. Kakadia, Mr. Dhawan Jayswal.
Headnote:
Indian Penal Code, 1860 – Section 504, 506(2), 114 – Criminal Procedure Code, 1973 – Section 482 – Gujarat Police Act – Section 135 – Quashing of the criminal proceedings – Offence of cheating – Prayer is made to vacate the interim relief granted vide order –Held, Apex Court was of view that there is an impression that civil law remedies are time consuming and do not adequately protect interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families – There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement – Any effort to settle civil disputes and claims, through any criminal prosecution should be deprecated and discouraged – There was no FIR, though police had come at premises, as stated, to rescue complainant, no complaint has been lodged by police on that day on any fact of knife, which is alleged to have been removed by son of landlord from his waist – Continuance of FIR would lead to wastage of precious judicial time, as the dispute could be settled by Civil Court and therefore this Court is of opinion that this is a fit case where inherent powers of Court under section 482 of Cr.P.C. could be exercised for securing ends of justice – Petition allowed.
ORDER :
1. The prayer is made in the Criminal Misc. Application (For Vacating Interim Relief) No.1 of 2022 for vacating interim relief granted to the respondents – original petitioner in the main matter vide order dated 22.11.2019. Advocate Mr. Aman A.Sama for the complainant submits that because of order dated 22.11.2019, no charge-sheet has been filed without the permission of the Court and the investigation has been stopped.
2. Thus, the prayer is made to vacate the interim relief granted vide order dated 22.11.2019, which read as under:
“Prima facie, it appear that there exists civil transaction. Therefore, present application deserves consideration. Issue Notice returnable on 01.04.2020. Learned APP waives service of notice on behalf of the respondent – State.
Meanwhile, no coercive steps shall be taken against the applicants. However, investigation to proceed in accordance with law, but charge sheet shall not be filed without permission of the Court.
Direct service is permitted.”
3. The FIR shows as of dispute between landlord and tenant, thus, the main matter being Criminal Misc. Application No.21675 of 2019 be listed today.
4. In the main matter being Criminal Misc. Application No.21675 of 2019 filed under section 482 of the Code of Criminal Procedure, the petitioners as a landlord of the premises have prayed for quashing and setting aside of the FIR being C.R. No.II-114/2019 registered with Samakhiyari Police Station, for offences punishable under section 504, 506(2) and 114 of IPC and section 135 of the Gujarat Police Act.
5. As per the case, the petitioner no.1 is engaged in the business of hotel and restaurants in District Kutch and is a owner of non-agricultural land bearing Plot Nos.22 to 25 of Survey No.265 of village Samakhiyali, Taluka Bhachau, District – Kutch. It is stated that petitioner no.1 had constructed building and started a hotel in the name of ‘New Gangotri (Shivsagar) Hotel’ on the said land, which is on National highway No.8 on the road of Bhachau to Maliya.
5.1 It is further contended that petitioner no.1 used to give the said hotel ‘New Gangotri (shivsagar)’ on rent/leave and license and since respondent no.2 was interested in getting the said premises on rent/leave and license, he approached petitioner no.1 and after discussions and negotiations, petitioner no.1 agreed to give the said Hotel along with tables, chairs, fan and all equipments relating to hotel in working condition with running hotel.
5.2 It is further stated that the said property was given on leave and license basis for 11 months. The license fees was fixed at Rs.1,00,000/- per month; however, petitioner no.1 agreed to charge Rs.70,000/- per month for the first three months, and thus agreement dated 30.04.2019 was executed before the Notary Public on Rs.100/- non-judicial stamp paper on the condition mentioned therein, and was agreed upon by the petitioner no.1 and respondent no.2.
5.3 It is stated by the petitioners that the said hotel was given on leave and license to the respondent no.2 on the condition to give total deposit of Rs.16,00,000/-, and thus it is stated that accordingly respondent no.2 issued cheque of Rs.5,00,000/- to petitioner no.1 dated 26.04.2019 and Rs.5,00,000/- and Rs.3,00,000/- were paid in cash and also paid Rs.3,00,000/- to previous tenant towards refund of deposit by cheque dated 01.08.2019 drawn on State Bank of India.
5.4 It is further stated that, it was agreed that on vacating the hotel by respondent no.2 on expiry of the term of agreement, petitioner no.1 has to return the deposit and if the respondent no.2 (tenant) vacates the hotel before expiry of the term, then he will not be entitled to claim return of deposit. It is also stated that on page no.2 of the agreement, it is provided that if any item is to be purchased, it will have to be purchased by the tenant and amount will be deducted from the rent or it will be adjusted towards deposit and it is also provided in the agreement that if owner req
