1. The present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure has been preferred by the applicant-original accused no. 4 to quash and set aside the impugned FIR, being C.R. No. 198/2010 registered with Adipur Police Station, Kutch for the offence punishable under Sections 306, 114 and 406 of the Indian Penal Code.
2. Respondent no. 2-original complainant has lodged the impugned FIR against the applicant-original accused nos. 4 and original accused nos. 1 to 3 (the applicants of Criminal Miscellaneous Application No. 639/2011, which is withdrawn today) for the offence under Sections 306, 114 and 406 of the Indian Penal Code alleging interalia that original accused nos. 1 to 3 agreed to sell the disputed property in question and in fact respondent no. 2-original complainant paid the total sale consideration and on that the other accused persons executed the agreement in favour of respondent no. 2-original complainant, which was notarized and respondent no. 2- original complainant was informed that out of the amount of sale consideration the accused persons shall clear the loan, which was taken on the said bungalow/property in question. It is further alleged that subsequently the accused persons have not repaid the loan amount though the amount was paid by respondent no. 2-original complainant and the Bank Officers are now pressurizing respondent no. 2-original complainant to repay the loan amount and, therefore, under the pressure even respondent no. 2-original complainant tried to commit suicide. During the course of the investigation the Investigating Officer has also submitted the report to the concerned Magistrate for the offence under Section 406 of the Indian Penal Code also. It is alleged in the FIR that at the time when the amount was paid to other three accused persons the applicant was also present at that time and, therefore, the applicant is also arraigned as an accused in the said FIR. Being aggrieved and dissatisfied with the impugned FIR, the applicant-original accused no. 4 has preferred the present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure.
3. Shri Rushab Shah, learned advocate appearing on behalf of the applicant-original accused no. 4 has vehemently submitted that as such the applicant has not committed any offence as alleged. It is submitted that except the fact that original accused no. 1 was an employee of the applicant the applicant is not a party to any transaction. It is submitted that except the fact that the amount was paid to the other accused persons in the presence of the applicant there are no other allegations and averments in the FIR. It is further submitted by Shri Shah, learned advocate appearing on behalf of the applicant that earlier with respect to the transaction respondent no. 2-original complainant filed a private complaint in the Court of learned Additional Chief Judicial Magistrate, Gandhidham, Kutch being Criminal Inquiry Case No. 127/2010 however, in the said Complaint there were no allegations against the applicant at all. It is submitted that thereafter as an afterthought and only with a view to pressurize the applicant and to get the money from other accused persons, the applicant has been arraigned as an accused, which is nothing but an abuse of process of law and Court and, therefore, it is requested to allow the present application.
4. Shri Gaurav Mehta, learned advocate has appeared on behalf of the respondent no. 2-original complainant. He has tried to oppose the present application by submitting that in fact the applicant promised that he will see to it that the amount, which was taken by other accused persons, shall be repaid by him and, therefore, it is requested not to exercise the powers under Section 482 of the Code of Criminal Procedure and not to quash and set aside the impugned FIR at this stage. Making the above submission, it is requested to dismiss the present application.
5. Shri L.B. Dabhi, learned APP has requested to pass an appropriate order considering the facts and circumstances of the case.
6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that transaction with respect to the property in question was between respondent no. 2-original complainant and other accused persons. Even as per the Complaint also the entire amount of sale consideration was paid to other accused persons. Even the documents/agreement was entered into by other accused persons. It is required to be noted that with respect to the very transaction in question respondent no. 2- original complainant filed a private Complaint in the Court of learned Chief Judicial Magistrate, Gandhidham, Kutch and there were no allegations made against the applicant at all. Considering the averments and allegations made in the FIR, it appears that the only allegation in the FIR against the applicant is that at the time when the amount was paid to other accused persons the applicant was present. By that itself, it cannot be said that the applicant has committed any offence alleged. Under the circumstances, to continue the criminal proceedings against the applicant would be abuse of process of law and Court, which deserves to be quashed and set aside in exercise of the powers under Section 482 of the Code of Criminal Procedure.
7. In view of the above and for the reasons stated hereinabove, the present application succeeds. The impugned FIR, being C.R. No. 198/2010 registered with Adipur Police Station, Kutch for the offence punishable under Sections 306, 114 and 406 of the Indian Penal Code is hereby quashed and set aside so far as the applicant-original accused no. 4 is concerned. However, the same shall be without prejudice to the rights and contention of respondent no. 2-original complainant as well as the prosecution against other accused persons and they shall be tried by the concerned Court in accordance with law and on its own merits, without, in any way, being influenced by the present order. Rule is made absolute to the aforesaid extent.
(M.R. SHAH, J.) siji