JINOFER BHUJWALA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), wherein, the petitioner has prayed that the FIR being C.R.No. I136/2011 filed by the respondent No. 2, registered at Shahpur Police Station be quashed and set aside qua the petitioner.

(2.) Heard learned Senior Counsel Shri P.M.Thakkar with learned Advocate Mr. P.P.Majmudar for the petitionr, learned Advocate Mr. Dharmesh Shah for respondent No. 2 and learned APP Ms. Punani for respondent No. 1 - State of Gujarat.

(3.) Learned Senior Counsel for the petitioner submitted that the FIR bearing C.R.No. I136/2011 is registered with Shahpur Police Station against the petitioner and others for the offences punishable under Sections 406, 420, 467, 468, 471, 474, 409, 120B and 114 of the Indian Penal Code. The said FIR is filed on 29.09.2011 for the alleged transactions which had taken place during the period between 11.10.2003 to 22.09.2006. Learned Senior Counsel further submitted that the petitioner deals in the business of marine electronic, communication and navigational equipments. He is in the said business since last more than 20 years. The petitioner was dealing with Gujarat Maritime Board, Gujarat Mineral Development Corporation Ltd. Gujarat Narmada Valley Fertilizers Ltd., Police Department of Gujarat and Port Trust of Calcutta. In the year 2002, the Gujarat Maritime Board floated tender and invited bids from the concerned parties for the purpose of awarding the work of upgrading the Vessel Traffic Management System at Hazira/Magdella Port. The petitioner was interested in availing the said work from Gujarat Maritime Board. At that time, petitioner came to know that respondent No. 2 also deals in the business of supply of Radar, in the name and style of "Elektronik Lab" at Mumbai and therefore he approached respondent No. 2 for the purpose of negotiating the terms and conditions. Initially, the respondent No. 2 executed a power of attorney in favour of petitioner on 28th March 2002, which is produced at page 384 of the compilation. Learned Counsel further submitted that thereafter another Power of Attorney was executed on 11.10.2003, which is produced at page 57 of the compilation. Learned Counsel submitted that in pursuant to the said Power of Attorney executed by the partners of the Elektronik Lab, the petitioner opened the account in the Union Bank of India and transacted on behalf of respondent No. 2. Learned Counsel further referred to Suit No. 1262 of 2007 filed by M/s. Elektronik Lab and others against the petitioner and others before the High Court of Judicature at Bombay. From the averments made in the said civil proceedings, learned Counsel pointed out that in the said civil proceedings the case of the respondent No. 2 is that the respondent No. 2 has executed the power of attorney on 11.10.2003 in favour of the petitioner. Learned Counsel referred to para 14, 24 to 26 of the plaint and submitted that it is the specific case of the respondent No. 2 that a power of attorney dated 11.10.2003 was executed by the plaintiff Nos. 2 and 3 as partners of plaintiff No. 1 firm on one hand and defendant No. 1 (present petitioner) on the other hand. Learned Counsel further submitted from the averments made in the said plaint that it is the case of the respondent No. 2 herein in the said proceedings that the petitioner was not acting in the interest of the respondent No. 2 and therefore the said power of attorney came to be terminated by letter dated 25.05.2005. Learned Counsel thereafter referred to the criminal complaint filed by M/s. Elektronik Lab against the petitioner and others before the learned Chief Metropolitan Magistrate Court, Bombay. The said complaint is filed for the offences punishable under Sections 403, 405, 406, 418, 419, 420 read with Section 34 and 120B of the Indian Penal Code. Learned Counsel referred to para 7 and 14 of the said complaint, wherein the present respondent No. 2 - the original complainant has stated that relying upon the representation made by the present petitioner, the complainant firm executed a power of attorney dated 11.10.2003 in favour of accused No. 1 i.e. the present petitioner. In the said proceedings also it is further stated that the complainant was left with no choice but to terminate the power of attorney given to the accused No. 1 by letter dated 25.05.2005. Relying upon the said averments made by the respondent No. 2 complainant before the Bombay High Court in civil proceedings in the civil suit as well as before the Chief Metropolitan Magistrate Court, Bombay in the complaint, learned Counsel submitted that the allegations made by respondent No. 2 in the impugned FIR against the present petitioner that he has forged the power of attorney dated 11.10.2003 are prima facie not believable and these allegations are nothing but an afterthought. Learned Counsel further submitted that when the civil proceedings initiated by the respondent No. 2, which have been now transferred to the concerned Arbitrator for deciding the dispute between the parties, are pending before the Arbitrator, the impugned FIR is nothing but the gross abuse of process of the Court and therefore the impugned FIR be quashed and set aside qua the petitioner. From the proceedings pending before the Arbitrator, learned Counsel pointed out the reply submitted on behalf of the firm Elektronik Lab, wherein, in para 15, it is specifically stated that "it is true that the power of attorney dated 11th October 2003 was executed." Learned Counsel further referred to the counter claim filed by the respondent No. 2 on behalf of M/s. Elektronik Lab and referred to para 13 of the said counter claim, wherein also the respondent No. 2 has admitted that the power of attorney was executed on 11th October 2003 in favour of the resent petitioner. Learned Senior Counsel further submitted that respondent No. 2 complainant has suppressed this material fact in the impugned FIR i.e. the pendency of civil proceedings before the learned Arbitrator as well as the criminal complaint pending before the concerned Court at Bombay and therefore on the ground of suppression of material fact, the impugned FIR be quashed and set aside.