SAILESH NATVARLAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicants, who, alleged to have conspired in a matter of large scale fraud, have approached this Court by invoking extraordinary jurisdiction of this Court under Section 482 of the Criminal Procedure Code for quashing the police investigation. Respondent No.2 herein has filed a complaint being Crime Register No.26/2005 with Economic Crime Cell, GaNdhinagar, Zone-I, against the applicants and others, stating that the complainant is doing business as a commission agent and dealing in agricultural produce. It is alleged in the complaint that on 11th July 2005, one DaHyabHai Bhikhabhai Patel, who is dealing in the name of Dahyabhai Bhikhabhai and Company as a commission agent met the complainant and told him that he has obtained an order for supplying "Raydo" on large scale to one Rajesh Mehta and Company and, therefore, he requested that he may be given goods on credit. Thereupon, the complainant told him that unless his brother-in-law - Baldevbhai Ganeshbhai accept the responsibility of payment, he will not give the goods on credit. Said Dahyabhai Bhikhabhai Patel informed the complainant that his brother-in-law is willing to give such guarantee on behalf of him. Thereafter, said Dahyabhai Bhikhabhai Patel came with Baldevbhai at about 3 O' Clock on the same date to the complainant and Baldevbhai promised that if the complainant gives "Raydo" on credit to Dahyabhai, and if Dahyabhai does not pay the money, he will make such payment. On such assurance, the complainant parted with 3899 sacks of "Raydo" amounting to Rs.55,18,361/- to said Dahyabhai between 11-7-2005 to 27-7-2005, which was transported in 26 trucks. Subsequently, said Dahyabhai sent two cheques of Rs.3 Lacs each, amounting to Rs.6 Lacs through one GovindbhaI RaMbhai Patel and certain other payments were also made as averred in the complaint. Thereafter, said Dahyabhai fled away on 27-7-2005 by closing his shop from MehsaNa Market Yard. On the next day, the complainant approached Baldevbhai and requested him to make necessary payment. At that time he was informed by said Baldevbhai that in view of heavy rainfall in Mumbai computers of the banks are hanGed and, therefore, it is not possible to get the amount transferred from the bank, however, said Baldevbhai gave Rs.1,40,000/- in cash to the complainant and thereafter, no payment was made. Subsequently, said Baldevbhai gave in security two houses of his brother-in-law - Govindbhai RaMbhai Patel, for which he has also executed power of attorney in favour of the uncle of the complainant - Shri Jitendra Shah. Subsequently, on 6-8-2005, Baldevbhai also executed a document in writing promising the complainant that he will pay the remaining amount. As per the allegations, at the time of transaction with Dahyabhai, his nephew one Shailesh and Govind Rambhai Patel were also present and they started transferring the "Raydo" in motor trucks and they sent it to Visnagar godown. The complainant subsequently found out that the goods in question, i.e.. "Raydo" was sold to Rajesh Mehta and Company at a very low price and said "Raydo" is kept in a godown of APMC, which is taken on lease by ICICI Bank and the accused has taken loan on it. It is also alleged in the complaint that Dahyabhai Bhikhabhai Patel is abSconding. On this and other such allegations, aforesaid complaint is filed and it is alleged that the accused had defrauded the complainant to the extent of Rs.46,78,361/- and there is a conspiracy on the part of all the accused in connection with the said transaction. At the stage of porice investigation, the applicants have approached this Court for quashing the complaint.

(2.) Mr.Gupta, learned advocate for the applicants submitted that so far as the applicants of Criminal Misc. Application No.13496/2005 are concerned, they have not played my role in cheating and the alleged act of cheating is committed by one Dahyabhai for which the applicants cannot be held responsible. Mr.Gupta further submitted that in any case the dispute in question is of civil nature and, therefore, this Court must quash the complaint from its very inception. To substantiate his say, Mr. Gupta has relied upon following judgements. (i) ZANDU PHARMACEUTICAL WORKS LTD. AND OTHERS VS. MOHD.SHARAFUL HAGUE AND ANOTHER, (2005) 1 SCC 122. (ii) RAMESH AND OTHERS VS. STATE OF TAMILNADU, (2005) 3 SCC 507

(3.) On the other hand, Ms.Manisha Shah, learned APP submitted that today investigating officer is present before this Court and as per the instructions received from him, investigation is at large. She submitted that this is a case of large scale scandal as other 14 agriculturists have also approached the investigating authority by filing similar complaints. She further submitted that modus operandi of the accused is similar in all such cases and they have cheated and duped many innocent and poor agriculturists. It is submitted by her that the complainant was subjected to threat by the accused for which the complainant has filed another complaint on 12-12-2005. It is submitted by her that the main accused is still absconding, who is closely related with the applicants. It is also submitted by her that in view of the fact that main accused is absconding investigation could not be completed. It is submitted by her that during investigation, which has taken place so far, it is noticed that there is a large scale scandal in which, prima facie, the applicants are involved. She further submitted that in the facts and circumstances of the case, this is not a case in which police investigation can be intercepted and complaint can be quashed. She submitted that though the Sessions Court has granted bail in favour of the applicants, the State is considering to file appropriate application for cancellation of bail as the main accused is absconding as well as even after granting of bail, complainant was subjected to threat by the accused. She also submitted that from investigation papers it is clear that the goods in question is pledged with ICICI Bank and one of the accused Mr.Baldevbhai is a guarantor for the same. It is also submitted that said Baldevbhai executed power of attorney in favour of the complainant and also gave security of the properly, which belonged to Govindbhai Patel, who is one of the accused in F.I.R. It is submitted by her that in view of the above factual background it is clear that all the accused are involved in the alleged offence and there is a conspiracy by all the accused in the matter of committing fraud and cheating.