NAGJIBHAI BABUJI VANJHARA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an application filed under section 482 of the Code of Criminal Procedure, 1973 [referred to as the 'Code'] for quashing and setting aside the FIR being C.R.No.I386 of 2011 registered with the Naranpura Police Station, Ahmedabad as well as for quashing and setting aside the Criminal Case No.85 of 2012 pending in the Court of the learned Chief Judicial Magistrate, Ahmedabad (Rural) at Mirzapur.

(2.) The facts in brief are as under: 2. 1 On 21/10/2011, the respondent no.2 herein lodged the FIR being C.R.No.I386 of 2011 with the Naranpura Police Station for the offences under Sections 406, 420 and 114 of the I.P.C. against the present applicants, in which, it has been mainly alleged that the complainant and the accused entered into an agreement, by which, the complainant agreed to purchase the shop belonging to the ownership of original accused no.1 viz.Nagjibhai for an amount of Rs. 17,00,000/in pursuant thereof the complainant paid an amount of Rs. 25,000/to original accused no.1 in cash. Thereafter, on 07/03/2011, the complainant paid a total sum of Rs. 5,00,000/by issuing three different cheques in the sum of Rs. 1,50,000/and Rs. 2,00,000/respectively. Thereafter, on making such payment, an Agreement to Sale was executed between the parties on the same day i.e.07/03/2011. Thereafter, on 17/03/2011, the complainant paid further a sum of Rs. 5,00,000/to original accused no.1 by way of cash and in proof thereof, a receipt dated 17/03/2011 was also issued in favour of the complainant. Therefore, in all, the complainant had paid a sum of Rs. 10,25,000/to the original accused no.1 by 17/03/2011 and in the said Agreement to Sale, it was decided that the balance amount of Rs. 6,75,000/shall be paid on or before 07/05/2011. However, when the complainant went to make the remaining payment of Rs. 6,75,000/to original accused on 01/05/2011, she found that the accused no.1 had sold the shop in question to one Kantibhai Patel for an amount of Rs. 20,00,000/. 2. 2 The complainant, therefore, went to the Police Station on 01/07/2011. At that time, the concerned police officer called the accused no.1 in the police station and accused no.1 has shown willingness to pay the amount received by him from the complainant. It is further alleged in the FIR that on the very same day, the accused no.1 has given Rs. 5,00,000/in cash and also gave five different cheques totalling Rs. 5,25,000/. It is further alleged that when the said cheques were deposited in the account of the complainant, the same were disnohoured with the endorsement of "insufficient funds" and therefore, the impugned FIR came to be registered for the offences under Sections 406, 420 and 114 of the IPC.

(3.) It is stated that no role is attributed to the applicant no.2, who is the wife of the applicant no.1 and the entire transaction was entered into between the complainant and the respondent no.2 - applicant accused no.1 and therefore, the applicant no.2 is falsely implicated in the impugned FIR and hence, the FIR be quashed qua the applicant no.2. It is further stated that the respondent no.2 entered into an Agreement to Sale with the applicant no.1 on 07/03/2011 and as per the terms and conditions of the Agreement, the respondent no.2 - complainant was required to pay the remaining amount of Rs. 6,75,000/within a period of two months. However, she could pay the remaining amount and thereby, violated the conditions of the Agreement to Sale. It is further averred in the complaint that in the agreement to sale, it is stated that if the saledeed is executed, the respondent no.2 - complainant shall be at liberty to file a Civil Suit for specific performance. It is further revealed that the complainant went to the Naranpura Police Station and without registration of the FIR, the applicant no.1 was called at the Police Station and Rs. 5,00,000/in cash was given by the applicant no.1. It is alleged in the application that the cheques were forcibly obtained in the presence of the police. It is further stated that for the same cheques, which are referred to in the impugned FIR, the respondent no.2 - complainant has already filed complaint under Section 138 of the Negotiable Instrument Act against the applicant no.1, which are registered as Criminal Case No.258 and 259 of 2011 registered before the Court of the learned Metropolitan Magistrate, Ahmedabad.