Joseph Salvaraj A. Vs.
State of Gujarat & Ors.
J U D G M E N T
Deepak Verma, J.
No. 4 - complainant, Living Water Finney, lodged an FIR on 05.09.2006 at 22.15
hrs with Odhav Police Station, Ahmedabad City, complaining therein that the Appellant
has committed offences under Section 406, 420 and 506(1) of the Indian Penal Code
(hereinafter shall be referred to as `IPC').
No.4 was working as Administrative Officer in "Amaaru Family Education Trust"
at Ahmedabad and claimed that he has been residing there, leading life peacefully.
He also stated that Shri Dharmendra P. Rami @ Laldbhai was running business of Siti
Cable in Bapi Nagar area at Ahmedabad, was known to him for many years and both
of them enjoyed good relations with each other.
in the year 2005, complainant had gone to Hyderabad at his wife's place where he
had the occasion to watch "God TV" which influenced him deeply and profoundly
touching his holy spirit. He wanted to share his experience with the Christian community
of Ahmedabad so that they may also be blessed through this religious channel. On
his return to Ahmedabad, he approached cable operator Mr. Lalabhai, owner of Siti
Cable as mentioned above and requested him to have this channel also in the
bouquet of channels offered by him. He also contacted the Appellant's Company directly,
requesting it to allow broadcasting of "God TV" in certain areas of Ahmedabad
through Siti Cables, Ahmedabad.
with the aid and enterprise of Mr. Lalabhai, they were able to commence broadcasting
of "GOD TV" in the eastern zone of Ahmedabad.
Mr. Lalabhai quoted Rs. 30 lacs for persuading all the three operators to commence
the telecast of "GOD TV" in their respective areas in Ahmedabad but the
same was settled for Rs. 10 lacs. Thus, according to the complainant, Mr. Lalabhai
(and 2 other cable operators) had agreed to broadcast, religious channel "God
TV" at Ahmedabad, after the Appellant had agreed to pay a sum of Rs. 10 lacs
to Mr. Lalabhai.
it appears that there was no Agreement in writing executed and entered into between
Mr. Lalabhai and the Appellant. Furthermore, there has not been any Agreement
between complainant and either of the aforesaid two parties. According to him, on
his own, he had acted only as a mediator.
time to time, the Complainant kept reminding the appellant about payment of the
amount of Rs. 10 lacs to Mr. Lalabhai. But according to the Complainant, the appellant
deliberately avoided his communications. In the meanwhile, the cable operators who
had started telecasting "God TV" were also pressurizing the
Complainant for the said amount.
mentioned hereinabove for about five months, they enjoyed watching "God
TV" without any disruption but thereafter the reception signals of the said
channel developed some technical snag. Thus, from October 2005, on account of poor
quality of receivers, the reception was also not clear and was blurred. He once
again contacted the Appellant who agreed to send receiver to the Complainant. After
having received the said receiver, it was delivered to Mr. Lalabhai but as per
the Complainant's version, by that time the amount of Rs. 10 lacs as agreed to between
Mr. Lalabhai and the present Appellant was still not paid. Having failed to elicit
a verbal response, the Complainant thereafter wrote a series of letters and sent
e-mails to the Appellant, ultimately culminating in a notice dated 21.06.2006, to
which the Appellant replied on 18.07.2006, denying all accusations and liabilities.
Then the problem started and Respondent No. 4 lodged the FIR against the
Appellant as mentioned hereinabove.
completion of the investigation, as per the FIR lodged by the Complainant on 05.09.2006,
the Appellant was arrested at Chennai for commission of the said offences on 17.11.2006.
He was thus constrained to file an application under Section 437 of the Code of
Criminal Procedure, 1973 (hereinafter shall be referred to as the `Code') for grant
of bail to him. The same was granted to him on the conditions mentioned in the
order dated 22.11.2006.
Appellant, thereafter, was constrained to file the petition under Section 482 of
the Code in the High Court of Gujarat at Ahmedabad, with a prayer for quashing
of the FIR bearing C.R. No. I-371/2006 registered with Odhav Police Station and
to stay further investigation in the case. The said application came to be considered
before the learned Single Judge on 11.1.2007. By that time, charge sheet was
already filed before the Competent Criminal Court. Thus, learned Single Judge,
was of the opinion that it was not a fit case to be entertained and refused to hear
the petition on merits, even though the appellant was given liberty to file an
application for his discharge before the Trial Court. It may be noted that even
in its impugned order the learned Single Judge has emphasized that he had not considered
the case on merits. Thus the Appellant's petition was dismissed and interim order
granted in his favour was vacated.
the Order dated 11.01.2007 passed by the learned Single Judge of the High Court
in Appellant's Criminal Application No. 1977 of 2006, is subject matter of
challenge in this Appeal.
have accordingly heard Mr. Huzefa Ahmedi with Mr. Shamik Sanjanwala for the Appellants
Ms. Jesel, for respondent No 1,2 and 3 and Ms. Aparna Bhat for respondent No.4 -
Complainant at length. Perused the record.
counsel for the Appellant contended that even after going through the FIR, no case
under Section 406 or 420 of the Penal Code was made out. The FIR was filed by a
person who is indisputably not a contracting party and at best by his own
admission, had acted only as a mediator, and had no cause of action to file the
complaint. He has failed to produce any evidence worth the name in support of
his allegation and legally acceptable that the contract was concluded, where under
the Appellant was obliged to pay a sum of Rs. 10 lacs to Mr. Lalabhai.
allegations in the F.I.R. clearly discloses a civil dispute between the parties
and the FIR seems to have been filed only with an intention to harass and humiliate
the Appellant. This was a pre-emptive move by the Complainant.
summary Civil Suit under Order 37 Rule II of Code of Civil Procedure (hereinafter
to be referred as 'CPC') has already been filed by Dharmendra P. Rami @ Laldbhai
against the Appellant and the Respondent No.4, Complainant herein, before the City
Civil Court, Ahmedabad claiming a sum of Rs. 10 lacs together with interest
thereon. In the said suit an unconditional leave to defend has already been granted
to the Appellant and the matter is still pending. In the light of the aforesaid
submissions, it was contended that it is a fit case where the FIR deserves to be
quashed otherwise the same would amount to abuse of the process of law.
the other hand, the learned counsel for Respondents especially Respondent No. 4,
contended that intention to cheat the complainant was clearly made out by the action
of the Appellant, ultimately resulting in lodging of F.I.R. against Appellant
and Respondent No.4 both. Learned Single Judge was fully justified in rejecting
the Appellant's Petition as it was not a fit case to invoke the jurisdiction conferred
on the court under Section 482 of the CrPC. Thus, a prayer was made that no
case for interference was made out and the Appeal be dismissed.
the light of the rival contentions we have to examine whether cognizance of the
offences could have been taken by the Competent Criminal Court in the light of
the averments made by the complainant in the FIR.
though the learned counsel appearing for contesting parties have cited numerous
authorities in support of their respective contentions, but in view of the well
settled legal position of law, by long catena of cases of this Court, on this and
related points, we are not dealing with each one of them separately and independently.
However, the ratio and gist of these would be reflected in our order.
the instant case, we have to first examine whether any of the ingredients under
Section 406, 420 or 506 (1) of the IPC have been made out to enable the Court to
take cognizance thereof against the appellant or not. Bare perusal of the FIR
lodged by the complainant, would indicate that he had got in touch with the
appellant so as to extend the benefit of Appellant's Channel "GOD TV"
to his other brethren residing at Ahmedabad. For the said purposes, he had met
the owner of Siti Cable, Bapi Nagar in Ahmedabad and negotiated a settlement
for a sum of Rs. 10 lacs on behalf of the Appellant's Company as the fee to be paid
to Siti cable by Appellant for telecast of channel "God TV" in Ahmedabad.
Further grievance of the Complainant was that despite the telecast of "GOD
TV", the Appellant, as promised, failed to pay a sum of Rs. 10 lacs to the
owners of Siti cables. This is what has been mentioned in nutshell in the complainant's
FIR. We have grave doubt, in our mind whether on such averments and allegations,
even a prima facie case of the aforesaid offences could be made out against the
breach of trust is defined under Section 405 of the IPC and 406 thereof deals with
punishment to be awarded to the accused, if found guilty for commission of the said
offence i.e. with imprisonment for a term which may extend to three years, or
with fine, or with both.
420 of the IPC deals with cheating and dishonestly inducing delivery of property.
Cheating has been defined under Section 415 of the IPC to constitute an offence.
Under the aforesaid section, it is inbuilt that there has to be a dishonest intention
from the very beginning, which is sine qua non to hold the accused guilty for commission
of the said offence. Categorical and microscopic examination of the FIR certainly
does not reflect any such dishonest intention ab initio on the part of the appellant.
506 of the IPC deals with punishment for criminal intimidation. Criminal intimidation,
insult and annoyance have been defined in Section 503 of the IPC but the FIR lodged
by complainant does not show or reflect that any such threat to cause injury to
person or of property was ever given by the Appellant to the Complainant.
from the general conspectus of the various sections under which the Appellant is
being charged and is to be prosecuted would show that the same are not made out
even prima facie from the Complainant's FIR. Even if the charge sheet had been filed,
the learned Single Judge could have still examined whether the offences alleged
to have been committed by the Appellant were prima facie made out from the complainant's
FIR, charge sheet, documents etc. or not.
our opinion, the matter appears to be purely civil in nature. There appears to be
no cheating or a dishonest inducement for the delivery of property or breach of
trust by the Appellant. The present FIR is an abuse of process of law. The purely
civil dispute, is sought to be given a colour of a criminal offence to wreak vengeance
against the Appellant. It does not meet the strict standard of proof required
to sustain a criminal accusation.
such type of cases, it is necessary to draw a distinction between civil wrong and
criminal wrong as has been succinctly held by this Court in Devendra Vs. State of
U.P., 2009 (7) SCC 495, relevant part thereof is reproduced herein below:
"A distinction must
be made between a civil wrong and a criminal wrong. When dispute between the parties
constitute only a civil wrong and not a criminal wrong, the courts would not permit
a person to be harassed although no case for taking cognizance of the offence has
been made out."
fact, all these questions have been elaborately discussed by this Court in the most
oft quoted judgment reported in 1992 (Suppl) 1 SCC 335 State of Haryana Vs. Bhajan
Lal, where seven cardinal principles have been carved out before cognizance of offences,
said to have been committed, by the accused is taken. The case in hand
unfortunately does not fall in that category where cognizance of the offence
could have been taken by the court, at least after having gone through the F.I.R.,
which discloses only a civil dispute.
Appellant cannot be allowed to go through the rigmarole of a criminal
prosecution for long number of years, even when admittedly a civil suit has already
been filed against the Appellant and Complainant- Respondent No. 4, and is
still subjudice. In the said suit, the Appellant is at liberty to contest the
same on grounds available to him in accordance with law as per the leave granted
by Trial Court. It may also be pertinent to mention here that the complainant
has not been able to show that at any material point of time there was any contract,
much less any privity of contract between the Appellant and Respondent No. 4 - the
Complainant. There was no cause of action to even lodge an FIR against the Appellant
as neither the Complainant had to receive the money nor was he in any way instrumental
to telecast "GOD TV" in the central areas of Ahmedabad. He appears to
be totally a stranger to the same. Appellant's prosecution would only lead to his
harassment and humiliation, which cannot be permitted in accordance with the principles
looking to the matter from all angles, we are of the considered opinion that the
prosecution of the Appellant for commission of the alleged offences would be
clear abuse of the process of law.
FIR under the circumstances deserves to be quashed at the threshold. We
accordingly do so. The Appeal is, therefore, allowed. The order of learned Single
Judge is set aside. The FIR dated 05.09.2006 lodged by Respondent No. 4 - Complainant
with Odhav Police Station, Ahmedabad stands quashed and all criminal proceedings
emanating therefrom also stand quashed. The parties to bear their respective
Pages: 1 2