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2024 Supreme(Guj) 288
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CHEEKATI MANAVENDRANATH ROY, J.
Jay Chandrakant Joshi – Appellant
Versus
State Of Gujarat –Respondent
R/Criminal Misc.Application (For Quashing & Set Aside FIR/Order) No. 20849 of 2019
Decided on : 14-03-2024
Advocate Appeared:
For the Appellant : CHINTAN K GANDHI, GAURANG A VAGHELA, RAVAL& TRIVEDI ASSOCIATES
For the Respondent: MR HARDIK SONI, Adv
IMPORTANT POINT
The judgment emphasizes that disputed facts cannot be decided at the pre-trial stage and that a prima facie case is sufficient to proceed with the trial.
Headnote:
Section 482 - Criminal Procedure Code - 1973 - 420, 465, 471, 114 of IPC and Sections 65, 66 of IT Act - The court discussed the legal validity of the order dated 21.09.2019 of the learned Additional Sessions Judge, Ahmedabad passed in Criminal Revision Application No. 460 of 2018 dismissing the said revision and confirming the order of the trial Court dismissing the application filed by the applicant under Section 239 of CrPC seeking discharge from the criminal case. The court highlighted the legal provisions of the Indian Penal Code and the Information Technology Act, and their interpretations in the context of the applicant's request for discharge from the case.
Fact of the Case:
The accused No. 2 sought discharge from a criminal case on the grounds that he only accompanied the main culprit, accused No. 1, to a shopping mall and was unaware of the use of a fake credit card. The prosecution contended that both accused were equally liable for using the fake credit card.
Finding of the Court:
The court found that the disputed facts could not be decided at the pre-trial stage and that a prima facie case was made out against the accused No. 2 to prosecute him for the said offences. The court emphasized that the final decision should be made after the conclusion of the trial.
Issues: The main issue was whether the accused No. 2 could be discharged from the case based on his claim of ignorance regarding the use of a fake credit card by accused No. 1.
Ratio Decidendi: The court held that the disputed facts could not be decided at the pre-trial stage and that a prima facie case was made out against the accused No. 2, warranting no interference in the application filed under Section 482 of CrPC.
Final Decision: The application was dismissed, and the trial Court was directed to proceed with the trial and conclude the same as expeditiously as possible.
JUDGMENT :
1. In this application filed under Section 482 of the Criminal Procedure Code, 1973 (CrPC), the applicant challenges the legal validity of the order dated 21.09.2019 of the learned Additional Sessions Judge, Ahmedabad passed in Criminal Revision Application No. 460 of 2018 dismissing the said revision and confirming the order of the trial Court dismissing the application filed by the applicant under Section 239 of CrPC seeking discharge from the criminal case that is filed against him.
2. Heard, the learned counsel for the applicant and the learned Additional Public Prosecutor for the respondent – State.
3. The facts leading to the lis in this application may briefly be stated as follow:
3.1 As per the prosecution version, the accused No. 1 has been residing in England. The accused No. 2 has earlier visited England to pursue his studies. At that time, he stayed as Paying Guest with the accused No. 1. So, they got acquaintance with each other. Thereafter, the accused No. 2 came back to India and he has been residing in Ahmedabad, which is his hometown. The accused No. 1 came to India and visited Ahmedabad, which was his hometown earlier.
3.2 At that time, it is stated that on 25.09.2010, at about 9:45 p.m., both, the accused Nos. 1 and 2 together visited Central Mall in Ahmedabad. They purchased goods worth Rs.7,631/-. They have presented “Your E Top-up Card”, to make the payment at the cash counter. The Manager of the said mall entertained a doubt relating to the genuineness of the said card presented by the accused and which was swiped by the accused No. 1. Therefore, he contacted the Assistant Manager of the Axis Bank to verify the genuineness of the said card. It is stated that the Assistant Manager of the Axis Bank informed that the said card is a fake card and a cloned card, which means it is a card of somebody else and duplicate of the said card is obtained in a fake manner and being used.
3.3 Therefore, the Manager of the mall informed about the same to the Cyber Crime Cell of Crime Branch, Ahmedabad City. The concerned officer from the said Cyber Crime Cell visited the mall and collected the details from the accused Nos. 1 and 2. A Panchnama was prepared at that time. One Apple cell phone, the said credit card and cash of Rs.25,000/- approximately, were recovered from the accused No. 1 and one mobile phone of Sony Ericson worth of Rs.4,000/- was recovered from the accused No. 2. The bill relating to the said shopping made by them was recovered from the accused No. 1.
3.4 Thereafter, as it was found that a fake and cloned credit card was used for the purpose of purchasing the said goods in the shopping mall, police registered a case against both, the accused Nos. 1 and 2 for the offences punishable under Sections 420, 465, 471, and 114 of the Indian Penal Code, 1860 (IPC) and Sections 65 and 66 of the Information Technology Act, 2000 (IT Act).
3.5 The crime was investigated and eventually, after completion of investigation, Charge-sheet was also filed in the trial Court against both the accused for the aforesaid offences.
3.6 While so, the accused No. 1 died and the case against him stood abated.
3.7 When the case has come up for framing the charge before the trial Court, the applicant herein, who is accused No. 2, has filed an application under Section 239 CrPC seeking discharge from the said case. Before filing the application for discharge, it is relevant to note here that, he has filed an application under Section 482 CrPC before this Court to quash the FIR and the criminal prosecution launched against him thereon. But, he has subsequently withdrawn the said application. So, the said application was dismissed as withdrawn. Thereafter, he has filed the application for discharge before the trial Court.
4. The applicant sought discharge from the case before the trial Court on the ground that the main culprit, who used the said fake and cloned credit card in the shopping mall, is accused No. 1 and the applicant, who is
