PARSHOTTAM SHANTILAL CHADDARWALAA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present criminal appeal arises out of a judgement and order dated October 7, 2009 passed by the High Court of Gujarat at Ahmedabad rendered in Special Criminal Application No. 1690 of 2009, whereby the High Court dismissed the Special Criminal Application filed by the Petitioner herein.

(2.) The factual matrix of the case is that the respondent no.2 herein who, at the relevant time, was the Incharge Registrar, District Court, Bharuch, lodged a First Information Report (hereinafter, 'FIR') before the Bharuch City 'A' Division Police Station on 28/7/2005 against the petitioner herein as well as two other accused persons alleging commission of the offences punishable under Ss. 192, 193, 196, 204, 209, 406, 420, 463, 464, 465, 466, 467, 468, 469, 471, 473, 474, 499, 500, 120-B and 114 of the Indian Penal Code, 1860 (hereinafter 'IPC') which came to be registered vide I-C.R. No.170 of 2005. The allegation in the FIR is to the effect that on 27/3/2003, the petitioner herein had instituted Special Civil Suit No.79 of 2003 in the capacity of power of attorney holder of the partners of a partnership firm namely, Narmada Finvest in the Court of the Principal Senior Civil Judge, Bharuch for recovery of Rs.5,45,052.00 against one Kamlesh Kantilal Patel. The said firm consisted of one Jagjivan Shantilal Dalal, Pashiben Parsottam Chaddarwala and Viren Parsottam Chaddarwala as its partners. An application came to be made in the said suit proceedings seeking an order of attachment before judgment on which notice came to be issued. During the proceedings of the said suit, an out of court settlement was arrived at between the petitioner and the defendant of the suit namely, Kamlesh Kantilal Patel on 28/3/2003 according to which the brother of the defendant Laksheshbhai Patel had undertaken to pay Rs.2,25,000.00 towards settlement of the dispute. The said Laksheshbhai Patel handed over 15 cheques of Rs.15,000.00 each to the petitioner which were payable on the first day of each month with effect from 01st May. 2003. In view of the settlement dtd. 28/3/2003 arrived at between the parties to the suit, on 2/4/2003, the petitioner tendered a withdrawal pursis seeking permission to withdraw the suit unconditionally. On the basis of the said application, the Trial Court made an endorsement on the last page of the plaint, and also on the application for interim injunction to the effect that the suit is withdrawn unconditionally. However, at the time of withdrawal of the suit, the deed of settlement was not produced in writing before the Court. As the suit was sought to be withdrawn unconditionally, as per the Rules, no decree was drawn and entry to that effect was made in the Rojkam. In view of the withdrawal of the suit, as per the provisions of the Civil Courts Manual, the documents of Special Civil Suit No.79 of 2003 were divided into four files viz. A, B, C and D and thereafter, the said files were despatched vide Outward Register No.215 of 2004 to the Record Office of the District Court, Bharuch on 4/5/2004. The record of Special Civil Suit was thereafter lying in the custody of the co-accused Deputy Registrar-cum-Record Keeper, District Court, Bharuch.

(3.) The cheques which were handed over by Laksheshbhai Patel to the petitioner herein were presented for realisation and some of the cheques came to be dishonoured. The petitioner, therefore, instituted several complaints against the said Laksheshbhai under Sec. 138 of the Negotiable Instruments Act, 1881 which later on came to be withdrawn by the petitioner. In the aforesaid FIR by respondent no.2 herein, it is alleged that the petitioner herein had hatched a conspiracy with the coaccused- court employees to extract money from the defendant of the suit. The co-accused had threatened the aforesaid Laksheshbhai Patel of dire consequences if he did not pay the money to the petitioner herein. On account of the said threat, the defendant of the suit met his advocate and during the course of conversation, the advocate told the defendant that if the suit is withdrawn, execution petition cannot be preferred. However, on 2/12/2004 or thereabout, the co-accused who was the bailiff in the Court of the Principal Senior Civil Judge, Bharuch again met the defendant of the suit and told him that the execution petition had been filed against him. Subsequently, it was found that the petitioner had filed Special Execution Petition No.43 of 2004 on 27/11/2004 for recovery of the suit money. Subsequently, the details of the Execution Petition preferred by the petitioner were given to the defendant of the suit and upon verification of the record, following defects were found:-