Heard Mr.Ashish B.
Desai, learned advocate for the petitioners of Criminal Misc. Application No.13802/2012 (hereinafter referred to as the said main petition ).
In view of the fact that on earlier occasion, when request for adjournment was made by the learned advocate for the petitioners and the request was vehemently opposed by the learned advocates for the respondents, i.e. the applicant in Criminal Misc. Application Nos.15145/2012, 14318/2012 and 14798/2012, order dated 30.11.2012 was passed. The said order reads thus:
Mr.
Desai, learned advocate for the applicants in Cr.M.A.No.13802 of 2012, has shown a sealed cover which, according to him, has been returned unserved to the addressee.
Mr. Desai also further submitted that he had addressed a letter to his client asking him to remain present to give necessary instructions as regards factual aspects involved in the matter, however, the said letter has been returned unserved by the postal authorities. He submitted that as of today, he does not have sufficient instructions to proceed with the hearing of the matter on merits.
On such ground, he has requested for adjournment and has clearly stipulated that if by the next date, he does not receive necessary instructions from his client, he will withdraw present proceedings.
Mr. Yagnik, learned advocate for the applicants herein, has submitted that according to his information, the applicant in Cr.M.A.No.13802 of 2012 has gone out of country without permission from the Court and despite earlier orders passed by the Court. He also submitted that in proceedings seeking bail, the Court has already issued look-out notice , in view of the fact that the petitioner has committed breach of the bail conditions. He also submitted that according to his information, presently, the applicant in Cr.M.A.No.13802 of 2012 is in U.K. and other two accused are also out of country (in Kuwait). Mr. Yagnik, learned advocate, also submitted that in the matter involving fraud of about Rs.9 crores, the applicant and other two accused have committed breach of conditions of bail atleast three times and have gone out of country without permission from the Court. He also submitted that even the condition regarding deposit/payment of the stipulated amount has also not been complied with.
The above aspects mentioned by Mr. Yagnik, learned advocate, are also reflected from the order dated 23.10.2012 (Coram: Hon'ble Mr. Justice Rajesh H. Shukla) in present matters and order dated 29.8.2012 (Coram: Hon'ble Ms. Justice Sonia Gokani) in Cr.M.A.No.10979 of 2012.
In view of the stipulation by Mr. Desai, learned advocate for the applicants in Cr.M.A.No.13802 of 2012, that if he does not receive necessary instructions on or before the next date, then, on the next date of hearing, he will withdraw present proceedings, as a last chance, time is granted.
S.O.
to 12.12.2012.
After the aforesaid order, the petition was listed for hearing on 12.12.2012. On the said date, the hearing was adjourned for the reasons recorded in the order dated 12.12.2012, which reads thus:
It is informed that learned advocates for the applicant in Criminal Misc. Application No.13802 of 2012 and the respondent No.2 in the same application (who is also applicant in Criminal Misc. Application No.15145 of 2012) have filed sick note.
Learned advocate for the applicant in Criminal Misc. Application No.14798 of 2012 is present. However, learned advocate for the applicant in Criminal Misc. Application No.14318 of 2012 is not present when the applications are taken up for hearing.
Having regard to the fact that learned advocates have filed sick note, S.O. to 27.12.2012.
In view of the said order dated 12.12.2012, the said main petition being Criminal Misc. Application No.13802/2012, along with other three applications, is listed for hearing today.
Mr.Ashish B. Desai, learned advocate for the petitioners, has appeared and submitted that as petitioners advocate, he wants to withdraw the petition and the petition may be disposed of as withdrawn.
Learned advocate for the petitioners has fairly submitted that so far as merits of the case is concerned, in view of the facts and circumstances of the case, he is not in a position to justify and support the relief prayed for in the paragraphs 7(A) to 7(D) in the said main petition being Criminal Misc. Application No.13802/2012. Accordingly, learned advocate for the petitioners has, though granted opportunity to make submissions on merits, not made any submission on merits and reiterated that he wants to withdraw the petition.
It is appropriate to note certain facts which have been urged by the learned advocates appearing for the applicants in the above referred three Criminal Misc. Application Nos.15145/2012, 14318/2012 and 14798/2012.
It is jointly submitted by the learned advocates for the applicants in the said three applications that a large scale fraud/scam was committed and perpetrated by the petitioners and several persons fell victim to the said fraud/scam totalling to a sum of more than Rs.9.00 crore. When the victims realised that they have been duped by scam/fraud, one of the victims filed complaint/FIR which is the subject of the present petition. Some other victims also filed complaints and gradually several complaints in respect of the alleged offence came to be filed. It is also submitted by the learned counsel that the said complaint/FIR is registered as I CR No.410/2011 and present two petitioners are accused No.1 and accused No.3 in the said FIR/complaint. Learned advocates for the above-mentioned three applications and also the learned advocate for the petitioners in Misc. Criminal Application No.13802/2012 have jointly submitted that accused No.2 has escaped and he is out of country.
It is also submitted that during the pendency of the said main petition, it was submitted before the Hon ble Court at the relevant time by the learned advocate for the petitioners and learned advocate for respondent No.2 in the said main petition that a compromise is arrived at. In view of the joint request by the learned advocates, the Court (Coram: Hon ble Mr.Justice Rajesh H. Shukla) passed order dated 24.9.2012 and allowed the petition whereby the said FIR came to be quashed. The said order dated 24.9.2012 reads thus:
1. Rule.
2. The present Criminal Miscellaneous Application has been filed by the Applicants under Section 482 of the Code of Criminal Procedure for the prayer that FIR being I-CR No.410 of 2011 registered with Ellisbridge Police Station, Ahmedabad may be quashed and set aside qua the Applicants on the grounds stated in the Application.
3. Learned Senior Advocate Shri Yatin Oza appearing with learned Advocate Mr. Ashish B. Desai for the Applicants and learned Advocate Ms. N.M.Shaikh for Respondent No.2-Original Complainant have stated that the parties have arrived at an amicable settlement for which affidavit of Respondent No.2 is placed on record, who is also present in the Court and identified by learned Advocate Ms.Shaikh stating that settlement is arrived at without any pressure or coercion and he has confirmed about the settlement. The declaration cum undertaking is also placed on record with regard to the issuance of the cheques.
4. Therefore, in view of these documents placed on record and in view of the affidavit as well as the guidelines laid down by the Hon'ble Apex Court in case of Madan Mohan Abbot v. State of Punjab, (2008) 4 SCC 582, wherein the Hon'ble Apex Court has observed that when the dispute is of private nature and the parties have amicably settled, then the FIR could be quashed as continuation therefore may remain an empty formality.
5. Therefore, in light of the aforesaid facts and circumstances, the present Criminal Misc. Application deserves to be allowed. The FIR being I-CR No. 410 of 2011 registered with Ellisbridge Police Station, Ahmedabad is hereby quashed and set aside qua the Applicants.
Rule is made absolute. Direct service is permitted.
It is also submitted that the term of the settlement of which reference was made before the Court and recorded in the order dated 24.9.2012, was not honoured and the cheque which was paid to respondent No.2 has been dishonoured by the bank. In view of the fact that the victims realised that they were further misled the above-mentioned three applications being Criminal Misc. Application Nos.15145/2012, 14318/2012 and 14798/2012 came to be filed.
The applicants in the said three applications have prayed, inter alia, that:
Criminal Misc.
Application No.15145 of 2012:
(A) Your Lordships may be pleased to admit and allow this application and recall the order passed in CR.Ma. Application No.13802 of 2012.
(B) Your Lordships may be pleased to allow this application and direct the learned Sessions Court Ahmedabad to release 10 Lacs deposited by way of order Cr.Ma. 1225/12 and 10979/12 in favor of the present applicant, as the respondents have admitted their liability to pay rupees 10 Lacs before this Hon ble Court by way of affidavit,declaration-cum-undertaking.
Criminal Misc.
Application No.14318 of 2012:
b. This Hon ble Court be pleased to recall the orde dated 24.09.2012 passed in Criminal Miscellaneous Application No.13802/2012, wherein this Hon ble Court (Coram: Hon ble Mr. Justice Shri R H Shukla) was pleased to quash and set aside the FIR being I CR No.410 of 2011 registered with Ellisbridge Police Station Ahmedabad against the respondent no.2-4 herein.
In the alternative this Hon ble Court be pleased to clarify and or modify the order dated 24.09.2012 passed in Criminal Miscellaneous Application No.13802/2012, wherein this Hon ble Court (Coram: Hon ble Mr.Justice Shri R H Shukla) was pleased to quash and set aside the FIR being I CR No.410 of 2011 registered with Ellisbridge Police Station Ahmedabad against the respondent no.2-4 herein, to the extent that it applies only qua the informant and not other persons (including applicant) who have been duped by the respondent no 2-4 herein;
Criminal Misc.
Application No.14798 of 2012:
(B) This Hon ble Court be pleased to recall the order dated 24.09.2012 passed in Criminal Miscellaneous Application No.13802 of 2012, wherein this Hon ble Court was pleased to quash and set aside the FIR being I-Cr No.410 of 2011 registered with Ellisbridge Police Station, Ahmedabad against the respondent no.2-3 herein;:
Thus, a request to recall the said order dated 24.9.2012 came to be made by the applicants in the said three applications.
In view of the said requests-applications, the Hon ble Court (Coram: Hon ble Mr.Justice Rajesh H. Shukla) heard the said three applications being Criminal Misc. Application Nos.15145/2012, 14318/2012 and 14798/2012, and vide order dated 23.10.2012, the said earlier order dated 24.9.2012 passed in said main petition came to be recalled. The said order dated 23.10.2012 reads thus:
1. This Court had recorded settlement arrived at by and between the parties while passing the order in Criminal Misc. Application No.13802 of 2012 dated 24.09.2012 for quashing the FIR being C.R.No.I- 410/2011 registered with the Ellisbridge Police Station, Ahmedabad. However, Criminal Misc. Application No.15145 of 2012 is filed by the applicant-original complainant, who had arrived at the settlement with regard to the aforesaid FIR being C.R.No.I-410/2011 registered with the Ellisbridge Police Station, Ahmedabad. Learned Counsel Mrs. Nasrin Shaikh has stated that the entire order passed in Criminal Misc. Application No.13802 of 2012 may be recalled as the cheque has bounced, which was the base for the order in the main matter i.e. Criminal Misc. Application No.13802 of 2012. It was submitted that as the cheque has bounced, in spite of undertaking, the original petitioners in Criminal Misc. Application No.13802 of 2012 (main matter) have not complied with the terms and conditions, subject to which the order was passed for quashing the aforesaid FIR being C.R.No.I-410/2011 registered with the Ellisbridge Police Station, Ahmedabad in the main matter.
2. Criminal Misc.
Application No.14318 of 2012 in Criminal Misc. Application No.13802 of 2012 as well as Criminal Misc. Application No.14798 of 2012 in Criminal Misc. Application No.13802 of 2012 have been filed by other applicants. According to them, they have also stake in the proceedings, subject FIR is not required to be quashed and it involves amount of many persons for which the aforesaid FIR is lodged. Therefore, both learned Advocate Shri A.J.Yajnik appearing for the applicants in Criminal Misc. Application No.14318 of 2012 and learned Advocate Shri R.R.Dholakia appearing for the applicants in Criminal Misc. Application No.14798 of 2012 have stated that the order may be recalled or it should be clarified qua the original informant.
3. However, since the subsequent development, which has been placed on record by learned Advocate Mrs.Nasrin Shaikh by way of Criminal Misc. Application No.15145 of 2012 in Criminal Misc. Application No.13802 of 2012, now, the entire matter is required to be considered on merits. Therefore, the order passed by this Court in Criminal Misc. Application No.13802 of 2012 dated 24.09.2012 deserves to be recalled for the reasons stated hereinabove.
4. Therefore, the order passed by this Court, as stated above, in Criminal Misc. Application No.13802 of 2012 dated 24.09.2012 is hereby recalled. All these matters are ordered to be posted for afresh hearing on 30th November, 2012 in accordance with law on merits.
Accordingly, and as a consequence of the order dated 23.10.2012, the order dated 24.9.2012 ceased to survive and the said main petition got restored and the Hon ble Court directed that the said petition and all applications will be considered in accordance with law on merits.
It appears that thereafter the said proceedings have continued to be adjourned from time to time and on 30.11.2012, the request for adjournment was opposed. Hence, the above mentioned order dated 30.11.2012 was passed.
At this stage, it is necessary and pertinent to mention that the above mentioned details about the proceedings of the said main petition and the said three applications are not disputed by the learned advocate for the petitioners in the main petition.
As mentioned above, in view of the orders dated 30.11.2012 and 12.12.2012, the said main petition being Criminal Misc. Application No.13802/2012 and the said three applications, i.e. Criminal Misc. Application Nos.15145/2012, 14318/2012 and 14798/2012, are listed for hearing today.
As recorded above, the learned advocate for the petitioners in the said main petition being Criminal Misc. Application No.13802/2012 has submitted that he wants to withdraw the petition and the learned advocate for the petitioners also submitted that he does not have any justification or substance to support the relief as prayed for in the said main petition.
Learned advocates for the applicants of the above referred three applications have submitted that upon recall of the order dated 24.9.2012, the original complaint/FIR and the charge-sheet bearing No.286/2011, dated 14.12.2011, is also restored and the proceedings in connection with the said FIR/complaint being I CR No.410/2011, i.e. charge-sheet No.286/2011 are in progress as of now before the learned Magistrate.
In this backdrop, learned advocate for the petitioners submitted that he wants to withdraw the petition and the petition may be disposed of as withdrawn. Since learned advocate also submitted that he has not received necessary instruction so as to proceed with the hearing of the petition on merits, it appears appropriate to examine the case on merits as well.
On consideration of the FIR/complaint and on consideration of the charge-sheet, it emerges, prima facie, that the victims/complainants have made specific allegations against the petitioners (of the said main petition) about the alleged fraud/scam and after investigation, the investigation agency has found sufficient ground and material to file charge-sheet.
Having regard to the charge-sheet and the allegations made therein, the Court finds that at this stage, there is no material on record and/or there is no convincing reason or justification to grant the relief prayed for by the petitioner in the said main petition. Moreover, in view of the fact that the charge-sheet has already been filed, the relief prayed for in paragraph 7(B) of the petition, i.e. to quash the FIR bearing I CR No.410/2011 does not deserve to be considered/granted in the said main petition. Furthermore, in view of the nature of allegations in the FIR, the Court is otherwise also not inclined to, or convinced to, grant the relief.
At this stage, the dictation of the order is deferred due to paucity of time (at closing hour) and also in view of the submissions made by the learned advocates for the above mentioned three applications with regard to the relief prayed for by the applicants in the said three applications.
As mentioned hereinabove, on 28.12.2012, the dictation of the order was differed/adjourned and thereafter, as recorded in the order dated 8.1.2013, the dictation of the order was differed/adjourned for the reasons mentioned in the said order. Accordingly, the matter was adjourned to today. Today, Mr.Desai and Mr.Yagnik, learned advocates for the petitioners in the said main petition and for the applicants in one of the said three applications are present. Ms.Shaikh, learned advocate for applicant in Misc. Criminal Application No.15145 of 2012 is not present. However, since Mr.Desai, learned advocate for the petitioner and Mr.Yagnik, learned advocate for the applicant in one of the three applications are present, the further dictation of the order is commenced today.
Before proceeding further, it is relevant and necessary to take into account the order dated 23.8.2012 passed by the Court (Coram: Hon ble Ms.Justice Sonia Gokani) in Misc. Criminal Application No.10979 of 2012, which reads thus:
Learned advocate Mr. Soeb Bhoharia appearing for the applicant urges that the applicant, who is enlarged on bail, is depositing Rs.15 (Fifteen) Lacs before the trial court and necessary receipt will be brought on record by 27th August, 2012.
Matter is, therefore, adjourned to 28th August, 2012 for verification.
Interim reliefs granted earlier shall continue till then.
Thereafter, the Court (Coram: Hon ble Ms.Justice Sonia Gokani) passed further order dated 29.8.2012 in Misc. Criminal Application No.10979 of 2012, which reads thus:
3. On hearing learned advocate Mr. Soeb Bhoharia appearing for the applicant, it has been noticed that vide order of this Court dated 23.8.2012 that he has deposited sum of Rs.15 lakhs before the trial Court out of the total amount of Rs.70 lakhs although he was to deposit the entire amount by 31.7.2012. It appears that he had for the first time deposited the said amount on 23.8.2012 before the trial Court and remaining amount of Rs.55 lakhs , which is yet to be deposited he has sought extension upto November, 2012.
In the meantime, it has come to the notice of the Court that the applicant had travelled abroad the first time with the permission of the trial Court when he was permitted to get the passport from the investigating agency and for visiting foreign country from 25.5.2012 to 24.7.2012, he was also directed to deposit amount of Rs.50,000/with the Nazir of the trial Court and was also directed to deposit his passport back to the concerned police station on or before 25.7.2012.
4. It appears that he chose not to so do it and on his own, he left the country second time. When he went this second time, he did not choose to seek permission from the Court. He, in clear violation of direction, continued to retain the passport though condition of depositing of the amount was already not complied, the concerned investigating agency did not initiate any action either to get the passport or report to the trial Court for nondepositing of the same as has been directed by order dated 22.5.2012 of the trial Court.
5. Today brother of the applicant has filed an affidavit before this Court in absence of the applicant to deposit the remaining amount of Rs.55 lakhs within 2 months from today. Learned advocate seeks extension of further 2 (two) months for the said purpose. He is unable to explain as to how the applicant could travel without seeking permission of the trial Court and what were the circumstances under which this passport was not deposited on 25.7.2012.
6. His brother has further ensured his return within a week's time. Mr.B.J.Jadeja who recently took over the charge as an Investigating Officer will investigate the case further. The period to deposit sum of Rs.55 lakhs after 31.7.2012 is being extended upto 30.9.2012. No further time shall be asked for.
7. The petitioner has on his return within 1(one) week, shall file an undertaking to that effect himself before this Court with a copy thereto to the Investigating Officer and shall surrender his passport before the trial Court as also report the same to the investigating officer. On his failure to so do it on or before 14.9.2012, the same shall be reported to the trial Court by the Investigating Officer. In the event of any default, the Investigating Officer is at liberty to move for the cancellation of bail, as directed in the order of grant of regular bail. (Emphasis supplied) Thus, in the said order, the Court took note of the factual aspect regarding the conduct of and default/s or breach (as regards bail conditions/bail order) by the petitioner and has passed above mentioned orders whereby initially the Court (Coram: Hon ble Mr.Justice Rajesh H. Shukla) recalled the earlier order. This Court is informed that subsequently the Court (Coram: Hon ble Ms.Justice Sonia Gokani) has also directed that look-out notice may be issued against the applicant/s.
The relief prayed for by the petitioner in paragraph 7(B) of the petition can be considered in the above mentioned backdrop. The relief prayed for by the petitioner reads thus:
7(B) Your Lordships may be pleased to quash and set aside the FIR being CR No.I-410 of 2011 dated 18.10.2011 registered with the Ellisbridge Police Station for the of fences punishable under sections 406, 420 and 114 of the Indian Penal Code along with all consequential proceedings.
As mentioned hereinabove earlier, on one hand the charge-sheet is filed, on the other hand, the victims have moved applications seeking direction for further investigation inter alia on the premise that the extent of the alleged fraud is to the tune of Rs.9,21,00,000/-, whereas the charge-sheet has been filed in respect of fraud to the extent of Rs.71,05,000/- only. Learned advocate for the applicants in the aforesaid three applications also submitted that not only the victims but the advocate representing the victims in the trial Court in connection with the proceedings related to the impugned FIR/complaint and charge-sheet, are also facing threats.
The allegations mentioned in the FIR and the charge-sheet prima facie give out that allegations about commission of alleged offence, i.e. of large scale scam/fraud with several persons are made against the petitioners and the extent of fraud is allegedly, to the tune of Rs.9.20 crore and several persons have fallen victim to the said fraud/scam. After investigation, the investigating agency has filed charge-sheet and the complainants have filed application for further investigation. At this stage and on the strength of the material which is available on record of present petition, it cannot be said that any case for alleged offence is not made out in the FIR/charge-sheet or that the proceedings are abuse of process or that process is initiated maliciously. Further aspects can be considered only by the learned trial Court where the material and details placed with charge-sheet are examined.
The culmination of the foregoing discussion leads the Court to conclusion, at this stage, that the relief prayed for by the petitioner does not deserve to be granted and this is not a fit case, wherein this Court should exercise the inherent jurisdiction under section 482 of the Code to quash the FIR/complaints.
It would not be out of place to mention at this stage that actually, the learned advocate for the petitioner has submitted and prayed for order to withdraw the application. He also submitted that despite his attempts, he has not received any instruction from his client (i.e. the petitioner) to proceed on merits. Ordinarily, when the learned advocate for the petitioner requests for permission to withdraw the petition, the Court would generally accept the request and allow the learned advocate for the petitioner to withdraw the petition. However, since the petitioner also annexed the rider viz. that he has not received necessary information and instruction from the petitioner so as to proceed with the matter on merits and he requests for permission to withdraw the petition, this Court considered it appropriate to also examine the facts of the petition. Upon examination of the allegations in FIR and in the charge-sheet and having regard to the nature and extent of the alleged offence and the persons affected by the alleged offence and having regard to the fact that the petitioner/s are said to have breached and flouted, on more than one occasions, the conditions of bail and the total amount as per the assurance given to the Court (and recorded by the Court in the order/s) was also not deposited by the petitioner and the cheque (which seems to have been given pursuant to Court s order) is allegedly dishonoured, this Court is not inclined to quash the FIR.
Therefore, on both the counts, i.e. in view of the submission made by the learned advocate for the petitioner to withdraw the petition and also for the reasons that the Court has not found any reason or ground or justification to exercise jurisdiction under section 482 of the Code, the relief prayed for in the petition cannot be granted.
In view of the submission made by the learned advocate for the petitioner in the main petition, i.e. Criminal Misc. Application No.13802/2012 to withdraw the petition and also in light of the view of the Court that the FIR/complaint and/or charge-sheet does not deserve to be quashed. In the result, the relief prayed for in the impugned petition, i.e. Criminal Misc. Application (for quashing and set aside FIR/Oder) No.13802/2012 is not granted and the main petition being Criminal Misc. Application No.13802/2012 stands disposed of and the relief prayed for in paragraph No.7 of the petition is rejected. It is clarified that the FIR/complaint and/or charge-sheet and/or proceedings related to the FIR/charge-sheet are not quashed and the proceedings may continue and proceed in accordance with law.
The petition accordingly stands disposed of in view of the petitioner s request as well as the foregoing reasons.
So far as the above mentioned three applications, i.e. Criminal Misc. Application Nos.15145/2012, 14318/2012 and 14798/2012 are concerned, the said three applications have been taken out in the above mentioned main petition being Criminal Misc. Application No.13802/2012. Since the said main petition is disposed of, the said applications would not survive and would automatically stand disposed of. It is, however, clarified that since in the said three applications, the applicants of the said applications have also prayed for certain additional/further relief including the relief for further investigation, it would be open to the applicants to take out appropriate application before appropriate forum at appropriate time for the said request or for any other reliefs which are considered appropriate in the facts of the case.
(K.M.THAKER, J.) Bharat* 16