Devendrakumar Radhakishan Lahoti vs State of Gujarat

A.Y. Kogje, J. - This petition under Article 226 of the Constitution of India and Section 482 of Criminal Procedure Code is filed for quashing of F.I.R. being I-CR No.32 OF 2013 registered with DCB Police station, Ahmedabad on 24.07.2013. The said F.I.R. was registered for offences under Sections 384 and 114 of IPC and Section 66(A) and 66(B) of the Information Technology Act.

This Court on 14.10.2016 had passed an order recording absence of the complainant-respondent No.3 and that on the next date, the matter to proceed peremptorily. Today also, on behalf of respondent No.3, none is present. Therefore, the Court is left with option but to proceed with the matter with the assistance of learned APP, instructed by the Investigating Officer.

The brief facts necessary for disposal of this petition are as under:-

3.1 The petitioners and respondent No.3 appear to be in the same business as contractors with ONGC.

3.2 It is alleged in the complaint that during the period in question, the petitioners had met the complainant and represented him that he desires to have share in the tender of supply of 15 Diesel Generator Sets to ONGC and for that purpose, forced the complainant to enter into an agreement. It is also alleged that the petitioners had also forced the complainant to give contract of annual maintenance at the rate of 13.10% for maintenance of those DG Sets. It is contended that under the guise of maintenance contract, a bill of huge amount was raised, which was alleged to be a false bill and for extracting money, the petitioners have committed offence.

3.3 If the FIR is perused, the allegations made therein indicate that between 07.02.2012 to 26.04.2012, the petitioners visited Ahmedabad office of the informant and expressed their desire that in the tender, contract of supply of 15 DG Sets at Khambhat ONGC, should be given to the petitioners. It is alleged that they conveyed to the informant that the informant himself should not get the entire contract. The petitioners should also get chance to invest and earn and the informant himself should not corner the entire business. In this regard, it is alleged that they issued disguised threats and perforce got the agreement signed.

3.4 It is alleged that on 09.05.2012, the petitioners came to the office of the informant with absolutely frivolous accounts and again perforce got the signature on the accounts pertaining to the Annual Maintenance Contract at the rate of 13.10% for maintaining the DG Sets. It is alleged that huge amount is received by the petitioners under the guise of maintenance bills.

3.5 It is further alleged that on 09.07.2013, while the informant had to go to Ankleshwar for some work in his private car, at that time, the petitioner No.1, informing him that he also has some work at Ankleshwar, joined the informant in his car and while they were travelling, the informant was in continuous fear that the petitioner would do something untoward during the trip. While returning to Ahmedabad, the petitioner showed some concocted copies of the draft applications and warned the informant that the informant should give him 50% share or else he will make his life miserable.

3.6 It is alleged that on 1.07.2013, again petitioner No.1 came to the office of the informant and threatened him to give him 50% share in the business of ONGC. He said that if he is given 50% share then the business of the informant would run very smoothly and if there is any obstacle, the petitioner would be able to use his good offices to over come such obstacle. He also threatened that if the informant does not do as he is told to, he would lose his business and would be finished. The petitioners threatened that the petitioner himself had stayed in jail for 9-10 days.

3.7 It is alleged that the petitioner No.2 on 23.07.2013 had changed his "WhatsApp" status as "Hum to Dubenge or Tumko Bhi Le Dubenge", which "WhatsApp" status was brought to the notice of the informant by his coordinator. It is alleged that the petitioner No.1 was associated with ULFA, which is known for its extortion activities.

3.8 It is in the aforesaid set of circumstances that the respondent No.3 instituted the FIR on 24.07.2013 invoking offences under Section 384 and 114 of the Indian Penal Code and Section 66(A)(b) of the Information Technology Act, 2000.

3.9 Based on such allegations, the FIR came to be registered.

Heard learned Advocate Shri Haruskar for the petitioners.

Learned Advocate for the petitioners has contended that a clear civil dispute is sought to be given a criminal colour by the respondent No.3 with a view to escape his civil liability. He has submitted that the entire transaction is on paper and the payments made and received in connection with the transaction are all through Bank transactions. In support of his submissions, he has referred to the agreement entered into between the parties. He has submitted the complainant is also in the same business and carrying on the business in the name and style of "Akash Oil Fields Services Pvt. Ltd.". It is pursuant to this work, the petitioners have shared supply of 5 DG Sets for total requirement of 15 DG Sets to the respondent No.3. He has further submitted that the tender was opened in May 2012 and a tender of 15 DG Sets in respect of Cambay was awarded to petitioners'' "Akash Oil Fields Services Pvt. Ltd." on 16.05.2012. Thereafter, to honour the tender terms with ONGC, one of the requirements was, DG Sets must not be older than 48 months at the time of filling of the tender and therefore, new DG Sets were required, which the complainant purchased from the petitioners and petitioners tendered 5 DG Sets to the complainant by selling their 2 DG Sets and giving finance for arranging total 5 DG Sets for complying with the necessary paper formalities for the purpose of executing the contract. It is pertinent to mention here that petitioner No.1 vide loan agreement on 09.05.2012 has also given a sum of Rs.15 lacs against proportionate share of 5 DG Sets out of 15 DG Sets for the performance bank guarantee of Rs.43,43,491/- for a period of 38 months which is inclusive of 2 months observing period and 3 years contracting period.

5.1 Learned Advocate for the petitioners has submitted that for sharing the profit for 5 DG Sets with the petitioners, an annual maintenance contract has been entered into on 09.05.2012 between both the parties for entire tender period of the year. The profit of proportionate share of 5 DG Sets has also been continuously and regularly paid to the petitioner No.1 from June 2012 till December 2012 totalling to Rs.31,59,026/-. It is this amount which the complainant is alleging, inter alia, that is given to the petitioner without any consideration and it is also alleged that it is this amount which being extracted and extorted by the petitioners from the complainant. Learned Advocate for the petitioners further submitted that it is pertinent to note that for some ulterior motive, complainant started avoiding proportionate shares of profit to the petitioner for 5 DG Sets for January 2013. Petitioner No.1 repeatedly asked for his share and on every occasion, under one or other pretext, complainant informed that since he is undergoing financial crisis, petitioner should bear with him.

5.2 The version of the petitioners is that the complainant further conveyed to the petitioners that he would be withholding the proportionate share for three months of the petitioner and will return back Rs.15 lacs which would be given to him by the petitioner No.1 against bank guarantee because the petitioner No.1 and complainant are the competitors and book should not show any amount of each other. Learned Advocate for the petitioners submitted that petitioner No.1 agreed upon the arrangement as business gesture and accordingly, Rs.15 lacs with interest in three months instalments were given by March 2013. Thereafter, waiting for quite long time, when there were no payment received from the complainant, petitioner No.1 went to the office of the complainant on 13.07.2013 and requested for the payment, whereupon the complainant abused the petitioner No.1 and said that he would not pay anything and would rather ensure that petitioner No.1 would be ruined and would not be able to get any business in Ahmedabad. Since then, petitioner No.1 had been trying in vain to retrieve the business relations with the complainant. On 18.07.2013, all of a sudden, petitioner No.1 came to know that complaint has been lodged by the complainant alleging altogether twisted version of the real facts, wherein thecomplainant has alleged that in order to forcibly taking the work and for siphoning out of Rs.31,59,026/-, petitioners have committed an offence as alleged in the complaint.

5.3 Learned Advocate for the petitioners therefore contended that it was purely a commercial /business transaction between the petitioners and the respondent No.3, which is given a colour of criminal prosecution, would amount to abuse of process of law.

5.4 Learned Advocate for the petitioners contended that insofar as allegation with regard to petitioners having connection with ULFA activists, he referred to and relied upon the final report under Section 173 being No.4 of 2008 filed in connection with FIR No.36 of 2007 by Nasira Police Station, Dist. Shivsagar, Assam, wherein it is indicated that the petitioners have not been even remotely connected with the offence.

The case of the complainant is supported by the affidavit in reply of the complainant-respondent No.3 and in such affidavit, reiterating the contents of the FIR, with special emphasis on the alleged connection of the petitioners with ULFA organization, it is contended that the threats issued by the petitioner No.1 while he had visited office of the informant, was recorded in the mobile phone and such recording has been handed over to the Investigating Agency.

Learned APP, on the basis of the investigation papers available with the attending officer, opposed the petition by contending that the ingredients of cognisable offences are present in the FIR and therefore, the Investigating Agency must be permitted to proceed with the investigation and file appropriate report after such investigation. He submitted that on account of stay granted by this Court at the time of admission, investigation is not concluded. He submitted that from the investigation papers available, it appears that amount is transferred from the account of the informant to the account of the petitioners by way of cheque transaction and such transaction is there along with account statement on the record of the investigation.

Considering the rival submissions, this Court finds that upon perusal of the FIR, ingredients of Section 384 of IPC are not made out. It appears that transaction of money has taken place through Bank and there are documents in support of such transaction. Therefore, this appears to be a dispute which is civil in nature.

Section 383 of IPC defines extortion being an act intentionally to put a person in fear of any injury to that person or to any other and thereby dishonestly induce such person to deliver any property or valuable security or anything signed or sealed which may be converted into a valuable security is said to have committed the offence of extortion. The allegations levelled in the instant case do not indicate that the informant was put to any fear of injury for receiving signature on certain agreements. Moreover, such agreements cannot be termed to be a valuable security or documents capable of being converted into valuable security.

Insofar as the argument of learned APP regarding there is issuance of threat and that such threat is recorded in the mobile phone, which is part of the investigation is concerned, even if such contention is taken at its face value, such recording of threat, according to the informant is with regard to submission of tender for service maintenance contract floated by ONGC in July 2013. Documents in the form of statement of account and the cheques issued by the complainant in favour of the petitioners are ranging from 31.08.2012 to 31.05.2013, during which transaction of money has taken place between the two parties to establish that there was an ongoing business relation between the two. Therefore, recording in the mobile, even if it is a part of investigation, would not support the case insofar as extortion is concerned. It is found that except for Sections 384 and 114 of IPC, no other Section is invoked in this offence. Therefore, this Court is of the opinion that the FIR and the investigation done so far is not attracting ingredients of offence under Sections 383 of IPC and therefore, offence under Section 384 of IPC is not made out.

Insofar as offence under Section 66(A) of the Information Technology Act, 2000 is concerned, which pertains to punishment for sending offensive messages through communication service, the Apex Court in the case of Shreya Singhal v. Union of India, reported in (2015) 5 SCC page No.1, in para-124.1 has struck down the same in its entirety being violative of Article 19(1)(a) and also not saved under Article 19(2) of the Constitution of India. The Court, therefore, is not required to dwell upon inclusion of such Section in the FIR. Any further proceeding in connection with the Section which is struck down by the Apex Court is of no consequence as any proceeding in this direction should necessarily fail. Hence, the FIR insofar this Section, is also required to be quashed.

This Court is of the opinion that continuance of the proceedings pursuant to the impugned FIR would be abuse of the process of law. For the foregoing reasons, the petition succeeds. The FIR being CR No.I-32 of 2013 lodged with DCB Police Station, Ahmedabad is quashed and set aside. Rule is made absolute.