Quashed

Jayeshbhai Chandulal Rana v. State of Gujarat

Gujarat HC12 Feb 2015CR.MA/11639/2009

Case brief

AI extract

What is this about?

In this criminal miscellaneous application, the High Court of Gujarat quashed an order directing the issue of process against society officials. The court held that the discrepancy in bank balances arose from a bona fide accounting mistake regarding promised donations, which was corrected and approved by the General Board. As no misappropriation occurred, continuing criminal proceedings was an abu

What did the court decide?

The impugned order dated 17/08/2009 directing issue of process and the subsequent criminal proceedings initiated thereunder are quashed and set aside. Rule is made absolute.

Jayeshbhai Chandulal Rana Vs State of Gujarat — Property and Title | Gujarat HC (2015)

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R/CR.MA/11639/2009 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 11639 of 2009

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE M.R. SHAH

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1	Whether Reporters of Local Papers may be allowed to see the judgment?	NO
2	To be referred to the Reporter or not?	NO
3	Whether their Lordships wish to see the fair copy of the judgment?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or anyorder made thereunder?	NO
5	Whether it is to be circulated to the civil judge?	NO

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==================================== JAYESHBHAI CHANDULAL RANA & 5....Applicant(s)

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Versus

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STATE OF GUJARAT & 1....Respondent(s)

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Appearance:

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MR TEJAS M BAROT, ADVOCATE for the Applicant(s) No. 1 - 6 MR DG SHUKLA, ADVOCATE for the Respondent(s) No. 2 MS BHARTI H RANA, ADVOCATE for the Respondent(s) No. 2 MS NISHA M. THAKORE, APP for the Respondent(s) No. 1

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R/CR.MA/11639/2009 JUDGMENT

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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH

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Date : 12/02/2015

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ORAL JUDGMENT

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Present application under Section 482 of the Criminal Procedure Code, 1973 ( for brevity, 'Code' ) has been preferred by the applicants herein – original accused to quash and set aside the impugned order dated 17/08/2009 passed in Criminal Case No. 3236 of 2009 (Initially, Inquiry Case No. 36 of 2008) by the learned 2^nd Additional Civil Judge and Judicial Magistrate First Class, Anand by which, the learned Magistrate has directed to issue process against the applicants herein – original accused for the offences punishable under Sections 406, 465, 468, 471 and 114 of the Indian Penal Code ( for brevity, 'IPC' ).

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Facts in nutshell of the case on hand are that the applicants herein – original accused belong to Charotar Rana Samaj, Dakor ( for brevity, 'Samaj' ). That at the relevant time, the applicant No. 1 was the President of the said Samaj, the applicant No. 2 was the Secretary and the applicant No. 4 was the Vice President and the applicant Nos. 3, 5 and 6 were the members of the said Samaj. It appears that, in the year 2006-2007, there was a Mass

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R/CR.MA/11639/2009 JUDGMENT

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Marriage ( Samooh Lagna ) organized by the aforesaid Samaj and for that, the Samaj received the donations. The people of the Samaj / donors promised the donations. That after completion of the Mass Marriage, the accounts were prepared and placed before the General Board and from the Balance Sheet, it was found that an amount of Rs.2,63,741/- was wrongly mentioned in the bank account of the Samaj lying with UCO bank and it was found that only a sum of Rs.1,23,741/- was the balance. Therefore, apprehending that the balance amount was misappropriated by the office bearers of the Samaj i.e. the applicants herein, after a period of approximately one year, the respondent No. 2 herein – original complainant filed the complaint before the learned Magistrate against the applicants herein – original accused for the offences punishable under Sections 406, 465, 467, 468, 471 and 114 of the IPC, which was initially registered as Inquiry Case No. 36 of 2008. That, initially, the learned Magistrate sent the complaint for inquiry to the Police Inspector, Anand Town Police Station in exercise of powers under Section 202 of the Code. After completion of inquiry, the Investigating Officer ( for brevity, 'IO' ) of Anand Town Police Station submitted the report along with the statements recorded by him during the course of the inquiry. That,

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R/CR.MA/11639/2009 JUDGMENT

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thereafter, considering the above, by the impugned order, the learned Magistrate has directed to issue process against the applicants herein – original accused for the offences punishable under Sections 406, 465, 468, 471 and 114 of the IPC. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Magistrate directing to issue process against the applicants as aforesaid, the applicants herein – original accused have preferred the present Criminal Misc. Application for quashing and setting aside the said impugned order.

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Shri Tejas Barot, learned advocate appearing for the applicants herein – original accused, has vehemently submitted that the learned Magistrate has materially erred in directing to issue process against the applicants. It is submitted that, as such, there was no question of any misappropriation by the applicants. It is further submitted that even the IO has, in his report, specifically mentioned that it was a sheer bona fide mistake of accounts and nothing further than that. It is submitted that despite the above, the learned Magistrate has directed to issue process against the present applicants. It is further submitted by Shri Barot, learned advocate appearing for the applicants herein – original accused, that at the relevant time, when the Balance Sheet was prepared

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R/CR.MA/11639/2009 JUDGMENT

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and accounts were produced before the General Board showing Rs.2,63,741/- in the bank account of the Samaj, it was a bona fide mistake as the donation of amount of Rs.2,63,741/-, which, as such, was a promise by the respective donors, was shown as a receipt though, at the relevant time, the amount of Rs.1,23,741/only was received. It is submitted that, having realized the said mistake, in the meeting of the General Board, it was decided to prepare the correct Balance Sheet and thereafter, the corrigendum / fresh Balance Sheet was prepared, which came to be placed before the General Board and the General Board approved the same and even, fresh Balance Sheet was also circulated to the members of the Samaj. It is submitted that, thereafter, after a period of approximately one year and without disclosing the correct facts that subsequently the accounts were corrected and fresh Balance Sheet was prepared and placed before the General Board and the General Board approved the same, the original complainant filed the impugned complaint. It is submitted that, therefore, the impugned order passed by the learned Magistrate directing to issue process against the applicants herein – original accused for the offences punishable under Sections 406, 465, 468, 471 and 114 of the IPC would be abuse of process of law and the Court and as such, the applicants

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R/CR.MA/11639/2009 JUDGMENT

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have not committed any offence as alleged, for which, the process is directed to be issued by the learned Magistrate and the applicants will have to face the trial unnecessarily, which would cause undue hardship to the applicants. Making above submissions, it is requested to allow the present applications.

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Per contra , Shri D. G. Shukla, learned advocate appearing for the original complainant, opposed the present application. He vehemently submitted that though there was a balance of Rs.1,23,741/- in the bank account in UCO bank of the Samaj, in the Balance Sheet, the bank balance was mentioned as Rs.2,63,741/-. It is submitted that only when the grievance the was raised in the General Board, subsequently, the same was tried to be corrected. It is submitted that, therefore, the balance amount can be said to be misappropriated by the applicants herein and/or it can be said that the applicants, the office bearers of the Samaj, misused the balance amount.

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4.1 It is further submitted by Shri Shukla, learned advocate appearing for the original complainant, that when the learned Magistrate has directed to issue process against the present applicants after considering the report submitted by the IO and

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R/CR.MA/11639/2009 JUDGMENT

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considering the statements recorded him during the course of inquiry, the same is not required to be interfered with by this Court and all the defence, which would be available to the applicants herein, are now, required to be considered during trial. Making above submissions and relying upon the affidavitin-reply filed on behalf of the original complainant, it is requested to dismiss the present application.

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Ms. Nisha M. Thakore, learned Additional Public Prosecutor, appearing on behalf of the respondent – State, has submitted that the concerned Police Officer of Anand Town Police Station submitted the report before the learned Magistrate pursuant to order passed by the learned Magistrate in exercise of powers under Section 202 of the Code and thereafter, the learned Magistrate, on due application of mind, has directed to issue process against the present applicants and the same is not required to be interfered with by this Court and therefore, it is requested to dismiss the present application.

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Heard, the learned advocates appearing for the respective parties at length and perused the impugned order passed by the learned Magistrate and the averments made in the complaint as well as

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R/CR.MA/11639/2009 JUDGMENT

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the report submitted by the IO dated 23/08/2008 which was submitted after holding inquiry, as directed by the learned Magistrate in exercise of powers under Section 202 of the Code.

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6.1 At the outset, it is required to be noted that by the impugned order, the learned Magistrate has directed to issue process against the applicants for the offences punishable under Sections 406, 465, 468, 471 and 114 of the IPC. However, it is required to be noted that as such, the IO of the Anand Town Police Station has, in his report, specifically mentioned and submitted that there was a bona fide mistake in the accounts only. It is required to be noted that the allegations against the applicants herein – original accused seem to be that, in the bank account of the Samaj lying with the UCO bank, though the bank balance was Rs.1,23,741/-, in the Balance Sheet which was produced before the General Board after the Mass Marriage ( Samooh Lagna ) was over, the bank balance was mentioned as Rs.2,63,741/-. Therefore, it is the case of the complainant that the applicants, the office bearers of the Samaj, have misappropriated the balance amount. However, it is required to be noted and it has come on record that in the meeting of the General Board, it was decided to prepare fresh accounts / Balance Sheet accepting the

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R/CR.MA/11639/2009 JUDGMENT

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explanation given by the applicants that certain amounts towards donations, which were promised by the concerned donors, though not received, were shown as received by mistake. It appears that, subsequently, the corrigendum / fresh Balance Sheet was prepared and the same was placed before the General Board and the General Board also approved the same and even fresh Balance Sheet / corrigendum was circulated to the members of the Samaj, however, after a period of approximately one year and without disclosing the aforesaid facts, the respondent – original complainant has filed the complaint in which, the learned Magistrate has directed to issue process against the applicants herein – original accused. From the aforesaid, it cannot be said that the applicants herein – original accused have committed any offence as alleged for which, the learned Magistrate directed to issue process against them. By no stretch of imagination, it can be said that the applicants have misappropriated any amount. From the impugned order it appears that, even the learned Magistrate has not properly considered the report submitted by the IO. Therefore, the learned Magistrate has committed a grave error in directing to issue process against the applicants herein for the offences punishable under Sections 406, 465, 468, 471 and 114 of the IPC

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R/CR.MA/11639/2009 JUDGMENT

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and the same cannot be sustained and deserves to be quashed and set aside as to continue criminal proceedings against the applicants herein – original accused and to compel the applicants to face the trial for the offence which, as observed herein above, have not committed by them, would be abuse of process of law and the Court and would cause undue hardships to the applicants and therefore, this Court is of the considered opinion that this is a fit case to exercise discretionary powers conferred under Section 482 of the Code and quash the impugned order.

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In view of the above and for the reasons stated above, present application succeeds and impugned order passed by the learned 2^nd Additional Civil Judge and Judicial Magistrate First Class, Anand in Criminal Case No. Criminal Case No. 3236 of 2009 (Initially, Inquiry Case No. 36 of 2008) dated 17/08/2009 is hereby quashed and set aside and subsequently, criminal proceedings initiated against the applicants pursuant to the original inquiry case as aforesaid, which is now registered as Criminal Case No. 3236 of 2009, are hereby quashed and set aside. Rule is made absolute accordingly.

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[ M. R. Shah, J. ]

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hiren

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Jayeshbhai Chandulal Rana v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Jayeshbhai Chandulal Rana v. State of Gujarat

Case brief

What is this about?

What did the court decide?

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