Allowed

Jalibhai Sarsangbhai Rathwa v. State of Gujarat

Gujarat HC11 Dec 2018CR.MA/12719/2013

Case brief

AI extract

What is this about?

The High Court held that the FIR lodged by the complainant against temple committee members for property-related offences constituted an attempt to convert a civil dispute into a criminal case. The Court quashed the proceedings under Section 482 Cr.P.C., citing abuse of process and malice.

What did the court decide?

The complaint CR-I No.131/2013 registered at Rajgadh Police Station is quashed and set aside. The application is allowed and the rule made absolute.

Jalibhai Sarsangbhai Rathwa Vs State of Gujarat — Cheque Dishonour | Gujarat HC (2018)

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R/CR.MA/12719/2013 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL MISC.APPLICATION NO. 12719 of 2013

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-

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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 or any order made thereunder ?	NO
==	==================================================== JALIBHAI SARSANGBHAI RATHWA	====

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Versus

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STATE OF GUJARAT

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Appearance:

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MR MA KHARADI(1032) for the PETITIONER(s) No. 1,2,3 MR P P MAJMUDAR(5284) for the RESPONDENT(s) No. 2 MR SHAMSINGH HANJRA(5426) for the RESPONDENT(s) No. 2 MS KRINA CALLA, APP for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

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Date : 11/12/2018

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ORAL JUDGMENT

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Page 1 of 9

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R/CR.MA/12719/2013 JUDGMENT

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1. The present application has been filed under Section 482 of Cr.P.C., by the applicants – accused, praying to quash and set aside the FIR being CR-I No.131 of 2013 registered at Rajgadh Police Station for the offence under Section 406, 420, 465, 467, 468, 471 and 120B of IPC.

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2. It has been alleged by the respondent No.2 –
original complainant in the said complaint
lodged by him that the ancestral property
bearing Survey No.159/2 situated at Chelavada,
belonging to his ancestors, was donated for
constructing a mandir called “Babadev Mandir”.
In the year 2006, a Committee was constituted to
construct the said temple, of which the
President was Jalibhai Sarsangbhai Rathwa
(applicant No.1), Secretary was Kesarsinh
Bharatsinh Parmar (applicant No.2), and
Treasurer was Maganbhai Nathabhai Rathwa
(applicant No.3). It was further alleged that
thereafter a Trust was created in the name of
“Shree Khanbha Babadev Trust”, which was being
managed by the said Committee. It was further
alleged that there was another land bearing
Survey No.158/1, which was also donated to the
said Trust, however, the members of the
Committee of the said Trust had, in collusion
with each other, got their names entered in the
revenue record as the owners in respect of three
gunthas out of the said lands and, thus, had
created false documents.

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Page 2 of 9

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R/CR.MA/12719/2013 JUDGMENT

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3. The application has been resisted by the respondent No.2 by filing the affidavit-in-reply reiterating the allegations made in the complaint.

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4. It is submitted by the learned Advocate Mr.Kharadi for the applicants that the applicants were only the Committee Members of the Shree Khanbha Babadev Trust and no such revenue entries in the names of the applicants as alleged in the complaint were made in the revenue record. He further submitted that the complainant and others have already filed a Regular Civil Suit being No.4 of 2012 against the applicants and others in respect of the lands in question seeking declaration that the defendants in the suit i.e. applicants and others had no right, title or interest in the said land. He also drew the attention of the Court that the said lands were in the name of Trust only in the revenue record. According to him, the dispute being of civil nature, the FIR is required to be quashed which even otherwise was lodged to misuse and abuse the process of law.

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5. However, the learned Advocate Mr.Majmudar for the respondent No.2 - complainant submitted that the names of the applicants were reflected in the complaint filed by him and all the applicants along with others had committed forgery and cheating, and hatched a criminal

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Page 3 of 9

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R/CR.MA/12719/2013 JUDGMENT

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conspiracy for getting their names mutated in
the revenue record in respect of the lands in
question.

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6. In the instant case, it appears that the
respondent - complainant, after having filed the
Regular Civil Suits being No.4/2012 and 5/2012
in the Court of Principal Civil Judge,
Ghoghamba, seeking declaration that the present
applicant No.1 and others who were the
defendants in the suit had no right, title, or
interest in respect of the lands in question and
seeking injunction for restraining them from
dispossessing the plaintiff i.e. the complainant
from the said disputed lands, and after having
failed to obtain any temporary injunction in the
said suits, had filed the complaint about after
one year of filing the said suits. It also
appears that the disputed revenue entries were
also challenged by the respondent No.2 by filing
RTS proceedings before the Revenue authorities.
The respondent No.2 also appears to have filed
another suit being Regular Civil Suit No. 218 of
2013, in the court of Principal Civil Judge,
Halol, against the present applicant No. 1 and
others seeking cancellation of the gift deed
dated 21.06.2015 by which the lands were donated
to the trust.

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7. From the said proceedings, it clearly transpires that the respondent No. 2 had tried to convert civil disputes into criminal case. Though it is

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Page 4 of 9

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R/CR.MA/12719/2013 JUDGMENT

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true that a given set of facts may make out a
civil wrong as well as criminal offence, the
Court has to see from the allegations made in
the complaint as to whether they disclose any
offence, and whether the complaint was filed
with malice or frivolous intention or ulterior
motive to harass the accused. So far as facts
of the present case are concerned, as
transpiring from the record, the respondent no.
2- complainant has already filed civil suits and
revenue proceedings in respect of the lands in
question. That apart, from the copies of
village form no. 6 produced on record, it
clearly transpires that the name of the trust
has been entered vide the Entires Nos. 528 and
529 deleting the names of the original owners
and that the applicant no. 1 is shown as only
the President of the trust. Be that as it may,
the civil and revenue litigation are already
pending between the parties, Mr. Majmudar for
the respondent No. 2 has failed to make out the
ingredients of the alleged offences. On the
contrary it appears that the respondent no. 2
after having failed to obtain any favourable
orders in the suits, had filed the complaint
giving colour of criminality to the civil
disputes.

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At this juncture, it would be beneficial to reproduce the relevant observations made by Supreme Court in case of Rajib Ranjan versus R. Vijaykumar reported in (2015) 1 SCC 513 .

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Page 5 of 9

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R/CR.MA/12719/2013 JUDGMENT

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“24. Having regard to the circumstances
narrated and explained above, we are also
of the view that attempt is made by the
respondent to convert a case with civil
nature into criminal prosecution. In a case
like this, High Court would have been
justified in quashing the proceedings in
exercise of its inherent powers under
Section 482 of the Code. It would be of
benefit to refer to the judgment in the
case of Indian Oil Corpn. v. NEPC India
Ltd., wherein the Court adversely commented
upon this very tendency of filing criminal
complaints even in cases relating to
commercial transaction for which civil
remedy is available is available or has
been availed. The Court held that the
following observations of the Court in this
behalf are taken note of:

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“13. While on this issue, it is necessary
to take notice of a growing tendency in
business circles to convert purely
civil disputes into criminal cases.
This is obviously on account of a
prevalent impression that civil law
remedies are time consuming and do not
adequately protect the interests of
lenders/creditors. Such a tendency is
seen in several family disputes also,
leading to irretrievable breakdown of
marriages/families. There is also an
impression that if a person could
somehow be entangled in a criminal
prosecution, there is a likelihood of
imminent settlement. Any effort to
settle civil disputes and claims, which
do not involve any criminal offence, by
applying pressure through criminal
prosecution should be deprecated and
discouraged. In G. Sagar Suri v. State
of U.P., this Court observed:

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“8.... It is to be seen if a
matter, which is essentially of a
civil nature, has been given a

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Page 6 of 9

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R/CR.MA/12719/2013 JUDGMENT

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cloakofcriminaloffence.
Criminal proceedings are not a
short cut of other remedies
available in law. Before issuing
process a criminal court has to
exercise a great deal of caution.
For the accused it is a serious
matter. This Court has laid
certain principles on the basis of
which the High Court is to
exercise its jurisdiction under
Section482 ofthe Code.
Jurisdiction under this section
has to be exercised to prevent
abuse of the process of any court
or otherwise to secure the ends of
justice.”

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14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC, more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may.

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25. In Inder Mohan Goswami v. State of
Uttaranchal, the Court reiterated the scope
and ambit of power of the High Court under
Section 482 of the Code in the following
words :

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23. This Court is a number of cases has

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Page 7 of 9

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R/CR.MA/12719/2013 JUDGMENT

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laid down the scope and ambit of
courts’ powers under section 482 CrPC.
Every High Court has inherent power to
act ex debito justitiae to do real and
substantialjustice,forthe
administration of which alone it
exists, or to prevent abuse of the
process of the court. Inherent power
under Section 482 CrPC can be
exercised:

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(i) to give effect to an order under the Code;

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(ii) to prevent abuse of the process of court; and

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(iii) to otherwise secure the ends of justice.

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24. Inherent powers under Section 482
CrPC though wide have to be exercised
sparingly, carefully and with great
caution and only when such exercise is
justified by the tests specifically
laid down in this section itself.
Authority of the court exists for the
advancement of justice. If any abuse
of the process leading to injustice is
brought to the notice of the court,
then the court would be justified in
preventing in justice by invoking
inherent powers in absence of specific
provisions in the statute.”

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9. In view of the above, the Court is of the
opinion that the complaint being CR-I
No.131/2013 registered at Rajgadh Police Station
deserves to be quashed and set aside, and is
accordingly quashed and set aside.

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10.The application stands allowed. Rule is

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Page 8 of 9

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R/CR.MA/12719/2013 JUDGMENT

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made absolute accordingly. Direct service is
permitted.

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Sd/- (BELA M. TRIVEDI, J)

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V.V.P. PODUVAL

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Page 9 of 9

Jalibhai Sarsangbhai Rathwa v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Jalibhai Sarsangbhai Rathwa v. State of Gujarat

Case brief

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