CHELARAM AMBALAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petition is directed against the issuance of process by the learned Judicial Magistrate First Class at Surat for the offences punishable under section 406, 408, 420, 423, and 468 of the Indian Penal Code in relation to inquiry No.15 of 2008. The case of the petitioner is that on 21.11.2005, the complainant was given a work contract by S.R.Construction Limited for deepening a pond and bund making at Village:Kherva, District:Mehsana. In response thereto, the respondent No.2complainant was in need of some land near the place of work order at Village:Kherva. The complainant had contacted petitioner No.1 and some other persons. In deliberation pertaining to that, the petitioner had agreed to sell his property and in lieu thereof, as a consideration of sale, the petitioner had also agreed to purchase seven dumpers of the complainant i.e. respondent No.2. It is the case of the petitioner that after purchasing the land on 08.12.2006, the complainant also executed an agreement for sale with some other persons who were the original owners of the land viz. One Kuvarji Keshaji Thakore and Rupsangji Keshaji Thakore. It is the case of the petitioner that these persons had mortgaged their land by taking loan from Gujarat State Cooperative Bank, but the land of these original owners having been sold, they had paid their account of loan and therefore, the complainant had purchased these parcels of land and further executed an agreement for sale with others. This transaction has been reduced in writing on a stamp paper, wherein, it is the case of the petitioner that he was merely one of the witnesses. It is the case of the petitioner that he merely stood as a witness and not beneficiary of the transaction in question and the complainant has unnecessarily dragged the petitioner in prosecution. The petitioner has pointed out that a private complaint came to be filed before the learned Judicial Magistrate First Class at Surat for the offence punishable under sections 406, 408, 420, 423 and 468 of Indian Penal Code, which was upon an order of inquiry registered as Criminal Case (Inquiry) No.15 of 2008. Based upon the said case, the matter was sent for police inquiry and upon an inquiry on 05.08.2008, a report came to be submitted by the concerned police authority, inter alia, postulating that petitioner is merely a witness and transaction in question appears to be of a civil nature. This report is submitted before the learned Magistrate. Surprisingly, upon a brief objection of the complainant i.e. the respondent No.2, without proper application of mind, without examining the report submitted by the concerned police authority, the learned Magistrate in casual manner has issued process under section 204 of Code of Criminal Procedure vide order dated 07.02.2009. The said order by virtue of which the process is issued under section 204 for the offence punishable under sections 406, 408, 420, 423 read with section 468 of Indian Penal Code. Feeling aggrieved by the said order, the petitioner was constrained to file an application for seeking discharge from the prosecution on 11.05.2010. The said application for discharge came to be contested by the respondent No.2 by filing a reply. Ultimately vide order dated 07.09.2010, the said application came to be dismissed by a cryptic order without independent application of mind and without looking at the record which ultimately compelled the petitioner to approach this Court by way of Special Criminal Application No.2019 of 2010. It is the case of the petitioner that the said matter came up for consideration before this Court and upon perusal of the circumstance prevailing on record, the Hon'ble Court has permitted the petitioner to file an independent petition for seeking quashing of the complaint and the process. Accordingly the said petition came to be disposed of on 13.10.2010. In the background of this circumstance referred to above, the petitioner has presented this petition invoking jurisdiction under section 482 of the Code of Criminal Procedure.

(2.) On perusal of the relevant papers, it appears that respondent No.2original complainant had submitted in his complaint that for the purpose of doing business, the petitioner has approached respondent No.2 complainant and in response thereto the land in his possession was offered. It was also deliberated between them that in lieu of that requirement of land, 7 dumpers were also to be purchased by the petitioner and for that purpose, various power of attorney documents came to be executed in favour of the complainant. It is the case of the complainant that by passage of time, he came to know about the fact that the land bearing survey No.531 stood in the name of the petitioner, whereas, other survey numbers were belonging to a different person and the said portion of land was mortgaged with Gujarat State Cooperative Agricultural and Rural Development Bank limited at Visnagar branch. Having found that the transaction was to be completed, it is the case of the complainant that the said mortgage was released by him by making payment as mentioned in the complaint. It is the case of the complainant that since relying upon the representation and promise of the petitioner, the complainant entered into transaction which ultimately led him to a serious prejudice. As complainant realised that fraud is committed with him which tantamounts to criminal breach of trust, therefore, before launching prosecution through advocate, the complainant had issued notice on 11.04.2008. In the said notice, it was specifically mentioned that if the accused failed to pay the amount as mentioned appropriate legal action including criminal prosecution will be initiated. Having not complied with the notice, it is the case of the complainant that the complainant is dragged to and compelled to file a criminal prosecution on 13.06.2008. In the background of aforesaid circumstance, the petitioner has challenged the order of issuance of process. The petitioner had also filed a discharge application, but then on account of technical ground, ultimately had to file present petition for quashing the complaint independently.

(3.) The learned advocate Mr.P.S.Chaudhary appearing on behalf of the petitioner submitted that petitioner has not committed any offence as alleged and has contended that he merely remained as a witness in an agreement which took place between the complainant and the third party. Learned counsel further submitted that the petitioner has nothing to do with the transaction in question and has wrongly been dragged into prosecution. The counsel submitted that the allegations which are levelled in the complaint, are exfacie of civil nature and therefore, with a view to apply pressurizing tactics, the complaint came to be filed. It has been contended that the complaint has been filed only against the present petitioner, who merely remained as a witness and surprisingly respondent No.2 has chosen not to proceed ahead with the ultimate culprit. The counsel for the petitioner has categorically submitted that he being merely a witness, exfacie, the ingredients of an offence as alleged in the complaint are not established. The averments contained in the complaint are also too vague and general in nature, not even elementary suggesting any offence having been committed by the petitioner.