[1.0] Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant herein – original accused No.1 to quash and set aside the impugned FIR being C.R. No.I122/2010 registered with Adajan Police Station, Surat lodged by respondent No.2 herein – original complainant for the offences punishable under Sections 420, 468 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). [2.0] Respondent No.2 herein – original complainant has lodged the impugned FIR against the applicant herein for the offences punishable under Sections 420, 468 of the IPC alleging interalia that the applicant herein approached the complainant in November 2004 and represented to the complainant that he has agreed to purchase lands bearing survey Nos.393, 488/1,2, 380/1, 371/1,2 – Town Planning Scheme No.12 Plot Nos.129, 193, 147, 177 and 157 and other plots total admeasuring 44653 sq.yards from the original land owners and that he is having the Satakhat and Banakhat in his favour and he agreed to sell the said lands to the complainant for a total sale consideration of Rs.41 crores and he agreed to execute the sale deed after getting the title clear and on that representation, the complainant paid a total sum of Rs.12,57,001/ towards part sale consideration/Bana amount and it is further alleged in the FIR that the applicant issued receipts with forged signature. It is further alleged that when for a long time nothing was done by the applicant with respect to the said transactions, he inquired and he came to know that the applicant has shown the forged documents to him and that when he asked for the documents, no documents were given to the complainant and therefore, he gave the complaint and therefore, it is alleged that the applicant has committed offences punishable under Sections 420, 468 of the IPC. Being aggrieved and dissatisfied with the impugned FIR, the applicant has preferred the present Criminal Miscellaneous Application under Section 482 of the CrPC.
[3.0] Shri N.D. Nanavaty, learned Senior Advocate appearing on behalf of the applicant has submitted that as such applicant has not committed any offence punishable under Sections 420, 468 of the IPC. It is submitted that the impugned FIR deserves to be quashed and set aside on the ground of delay. It is submitted that the alleged transaction is of the year 2004 and the impugned FIR has been filed in the year 2010. It is further submitted that even otherwise the dispute is purely of civil nature which is tried to be converted into criminal matter which is nothing but abuse of process of law and the Court. It is further submitted that as such no steps are taken by the complainant to file the civil suit. Therefore, it is submitted that to continue the criminal proceedings against the applicant would be abuse of process of law and the Court and therefore, it is requested to quash and set aside the impugned FIR in exercise of powers under Section 482 of the CrPC.
[4.0] Application is opposed by Shri K.K. Trivedi, learned advocate appearing on behalf of the original complainant. It is submitted that there are specific averments and allegations in the impugned FIR prima facie disclosing commission of cognizable offences which are further required to be investigated by the Investigating Officer. It is submitted that as such the applicant is having a criminal background and there are in all 18 cases of theft etc. pending against him. It is further submitted that even the applicant has not produced the correct and true copy of the FIR. It is submitted that the typed copy of the FIR produced by the applicant in the present proceedings does not tally with the certified copy of the FIR and the applicant has altered the statement in the typed copy produced by him at the material place. It is further submitted that even similar other complaint is filed against the applicant with Adajan Police, Station by one Yogesh Thakarshibhai Patel for the offences punishable under Sections 406, 420, 504, 506(2) and 114 of the IPC. Therefore, it is submitted that when the averments and allegations in the FIR discloses prima facie commission of cognizable offences which are yet to be investigated by the IO, it is requested to dismiss the present application and not to quash and set aside the impugned FIR at the threshold and without permitting the IO to further investigate the case.
[4.1] Shri Dabhi, learned Additional Public Prosecutor appearing on behalf of the State has also supported the learned advocate appearing on behalf of the original complainant and has submitted that as the allegations and averments in the impugned FIR discloses prima facie commission of cognizable offences, the impugned FIR is not required to be quashed and set aside in exercise of powers under Section 482 of the CrPC.
[5.0] Heard the learned advocates appearing for respective parties at length and considered the averments and allegations in the impugned FIR. Considering the averments and allegations in the impugned FIR, it appears to the Court that there are specific averments and allegations in the FIR disclosing prima facie commission of cognizable offences which are further required to be investigated by the IO. It appears that immediately after filing of the impugned FIR and before any investigation can be carried out, the applicant has preferred the present application and since then there is a stay of further investigation.
[5.1] The documents which were alleged to have been shown to the original complainant at the time of entering into transaction and executing the receipts for payment of part sale consideration are yet to be collected by the IO during the course of investigation. It appears that applicant seems to be historysheeter and there are in all 18 cases pending against him for the offences of theft etc. It is also required to be noted that even one another complaint is filed against the applicant making similar allegations. Under the circumstances, when the allegations and averments in the impugned FIR are yet to be investigated by the IO and when a prima facie csae for investigation is made out, the impugned FIR cannot be quashed and set aside solely on the ground of delay, if any.
[5.2] Now, so far as the contention on behalf of the applicant that till date no steps are taken by the complainant to file the civil suit is concerned, on the aforesaid ground, the impugned FIR is not required to be quashed and set aside in exercise of powers under Section 482 of the CrPC.
[6.0] In view of the above and for the reasons stated above and considering the averments and allegations in the FIR which are further required to be investigated by the IO, no case is made out to exercise powers under Section 482 of the CrPC at this stage and to quash and set aside the impugned FIR at the threshold and without permitting the IO to investigate the FIR/complaint.
[6.1] In view of the above and for the reasons stated above, present Criminal Miscellaneous Application fails and the same deserves to be dismissed and is, accordingly, dismissed. Rule discharged. Adinterim relief granted earlier stands vacated forthwith.
(M.R. Shah, J.) menon