HASUBHAI BHURABHAI THAKKAR & ANR. vs STATE OF GUJARAT & ANR.

Section 482 of the Code of Criminal Procedure is

invoked by the applicants praying that the First

Information Report being C.R. No-I-30/2010 registered

at ''A'' Division Police Station, Bhavnagar, against the

applicants be quashed.

Respondent No.2 Ushaben Ratibhai Bhurabhai, has

filed the aforesaid complaint against the present

applicants on 03.02.2010. According to the complaint,

the applicants have by their acts, committed offences

under Sections 341, 452, 427 and 114 of the Indian

Penal Code. The complaint is annexed as Annexure-''A''

to the present application.

On reading of the complaint, the following

factual scenario emerges:

3.1 According to the complaint, she is the owner

of two shops, shops Nos. 156 and 157 situated

at "Madhav Darshan". In the complaint she

states that, the shop has been given on rent to

''Ace Tele Services'', rent agreement of which is

produced on record. The applicants herein, have

been shown as accused Nos. 1 and 2 respectively

alleging that litigations between the

complainant and the accused pertaining to the

said shops is pending. Pending such

litigations, the accused have sold the shops to

anti social elements. She does not know the

names of such purchaser. Shop No. 157 has been

sold and as far as shop No 156 is concerned, it

is a matter pending litigation in Court. The

complaint further states that the shops have

been sold in violation of a Family Agreement,

according to which, the shops were to be in the

ownership of the complainant. The grievance in

the complaint appears to be that between shops

Nos. 156 and 157 a wall has been erected. The

tenant on repeated complaints to the police has

failed to gain appropriate relief. According to

the complainant, in spite of pending

litigations between her and the accused, no

panchnamas are being made to show the correct

position and the accused are continuing to

commit fresh offences. Repeated representations

to the Deputy Inspector General Of Police have

fallen on deaf ears, hence, the present

complaint.

In order to appreciate the complainant''s

grievance and whether the First Information Report so

lodged deserves to be quashed pending civil

litigations between the parties needs a brief

reference.

The complainant Ushaben, prior to filing of the

present First Information Report, filed a Civil Suit

before the Bhavnagar Principal Senior Civil Judge,

being Civil Suit No. 49 of 2010 dated 29.01.2010. The

plaint and the suit is annexed as Annexure ''B'' to the

paper book. The present applicants are the original

defendants in the civil suit. The prayer in the suit

filed by the complainant is that the shops is question

namely shop Nos. 156 and 157 at "Madhav Darshan" are

of the ownership of the original plaintiff and a

declaration accordingly be issued that she being the

owner of the shop. The accused-original defendants

have no right, title or interest over such shops.

Perusal of the plaint so filed also reveals the

same narrative as in the First Information Report.

Respondent No.2 herein, in her plaint has stated that

the shop, particularly, shop No.157 has been sold by

the defendants/accused to one Kamleshbhai

Pravinchandra Shah, which is illegal, and therefore,

she has given appropriate notices to the purchaser.

The sale is in violation of a family arrangement,

according to which, such shops should have come to her

and therefore, she be declared owner of shops Nos. 156

and 157. The complaint also mentions of certain

pending litigations between the parties. Fruitful it

will be also to mention that the plaint talks of a

criminal case No. 790 of 2007 invoking sections 465,

467, 406, 420, 419 and 471 read with Section 114 of

the Indian Penal Code, filed before the Judicial

Magistrate First Class.

It appears that, pending the First Information

Report and the suit, panchnama has been drawn and a

Court Commissioner has also taken a visit and filed a

report. The Court Commissioner''s Report dated

21.02.2010 indicates that, shop No. 157 is locked. It

has a board in the name of ''Shah Enterprises''. Shop

No.156 shows some construction material and bricks

lying around. The keys of shop No. 156 were found from

one Nishant Vinubhai Patel, whereas, the keys of shop

No. 157 were neither with the plaintiff, nor with the

defendants. Also annexed to the Additional Affidavit

filed by the applicant herein is an order dated

30.04.2010 passed below Exh. 5. application in regular

civil suit No. 49 of 2010 of the complainant-

plaintiff. Injunction has been refused by the

aforesaid order.

The complainant appears to have also filed a

Civil Suit being Special Civil Suit No. 190 of 2012 in

the Court of the Principal Civil Judge, Senior

Division, Bhavnagar, against the accused-applicants as

defendants Nos. 1 and 2 and against the purchaser of

shop No. 157 Shri Kamleshbhai Pravinchandra Shah as

defendant No.3 and Nishith Mehta, the tenant of Shop

No.156 as defendant No.4 and Madhav Darshan Non

Trading Corporation as defendant No.5. The prayer in

the suit is to set aside the sale of shop No. 157 in

favour of defendant No.4, which according to the

plaintiff/ original complainant was entered into by a

Sale Deed dated 27.10.2009.

Also on record in the paper book is a Caveat No.

11 of 2010 filed by the purchaser Kamelshbhai Shah of

Shop No. 157 dated 25.10.2010. The Caveat lodged

against the complainant Ushaben and two others namely

the son and the husband of Ushaben indicates that shop

No. 157 has been purchased by Kamleshbhai. He needs to

make alteration in the shop and such alteration and in

order that such alteration and repairing is carried

out smoothly without hindrance from the complainant

herein, in the event any proceedings are filed to stop

such alteration / construction through Kamleshbhai

Shah, the owner of the shop be heard.

Mr. S P Kotia, learned advocate for the

applicants, through oral as well as written arguments,

contends as under:

(i) According to Mr.Kotiya, a bare reading of

the First Information Report, by which the

applicants have been accused of having committed

offences under Sections 341, 452, 427 read with

Section 114 of the Indian Penal Code shows that

the complaint on the face of it does not

disclose the commission of such offences.

Ingredients necessary to make the accused guilty

of such offences are not stated in the

complaint.

(ii) Mr Kotia, further, contended that on

5.02.2010, the complainant had received a Caveat

from purchaser Kamleshbhai Shah, who wanted to

carry out alterations and renovation in shop No.

Anticipating obstructions, he has filed such

Caveat. Civil Suit no. 49 of 2010 was filed by

the complainant on 29.01.2010. On receipt of such

a Caveat wherein the plaintiff-complainant sought

a declaration that shops Nos. 156 and 157 be

declared to be of her ownership and possession.

(iii) Knowing fully well that Kamleshbhai was the

owner of the shop by virtue of the sale dated

27.10.2009, which knowledge was apparent from the

averment in the plaint, wherein, the complainant

Ushaben had named the purchaser. The First

Information Report, was not filed with clean

hands by stating that the purchaser was an

unknown individual, particularly, when she was

aware of the transactions as disclosed in the

plaint filed a few days before filing of the

complaint.

(iv) Mr Kotia, further, contended that documents

of record strictly pointed out that the ownership

of Shop No.156 was not that of the complainant-

plaintiff, while shop No. 157 was undisputedly

even according to the complainant in possession

of Kamleshbhai Pravinchandra Shah. Civil disputes

regarding ownership and possession were pending

between the parties. Subsequent conduct of the

complainant in filing a Civil Suit No. 190 of

2012 against the owner of Shop no. 157 and the

tenant of shop no. 156 and the Non Trading

Corporation indicated that civil remedy had been

invoked and the adjudication regarding ownership

and possession was at large in a civil litigation

pending inter -se between the parties.

(v) With reference to the criminal complaint No.

790 of 2007, of which the complainant had made

reference in her civil suit no. 49 of 2010 is

concerned, Mr. Kotia has placed on record a

report filed by the police authorities under

Section 173 of the Code of Criminal Procedure. It

appears on reading such report that on a

complaint filed invoking Sections 465, 467, 468,

419, 420 and 406 of the Indian Penal Code by the

complainant, the police authorities had prima

facie found that the ownership and possession of

shops Nos. 156 and 157 was that of the accused

Hasubhai and civil litigation was pending. That,

the accused Hasubhai has produced documents,

which prima facie discloses his ownership whereas

the complainant could not produce documents

purportedly on the ground that she has lost such

documents. On 09.11.2005, therefore, a Summary

Report was filed by the police.

Mr. S P Kotia, learned advocate for the

applicants, has relied on the following judgements to

contend that when essentially civil suit is pending,

criminal proceedings should be quashed and that this

is the fit case in the parameters as laid down in the

judgement of the State of Haryana Vs. Bhajanlal and

others reported in 1992 SCC (cri) 426 are met and the

court should invoke its jurisdiction and quash the

complaint. The judgements relied by Mr. Kotia are as

under:

1 Apurva Navnitlal vs. State of Gujarat, reported

in 2013(3) GLH 358.

2 Paramjeet Batra Vs. State of Uttrakhand,

reported in (Supreme Court) JT 2012(12)SC 393.

Jitendra Laljibhai Vs. State of Gujarat,

reported in 2011 JX (Gujarat) 1369.

M/s Thermax Ltd. Vs. K M Johny, reported in

(Supreme Court) 2011(13) SCC 421

Mohanlal Yadram Khandelval Vs. Kantibhai

(Gujarat High Court) 2010 JX (Gujarat) 529.

Sumitraben Vs. State of Gujarat, reported in

(Gujarat High Court) 2008 JX (Gujarat) 630.

S P Godrej Vs. Hasmukhlal, reported in 2007 (4)

GLR 2864.

Nilesh Mansukhlal Vs. State of Gujarat, reported

in 2006 (1) GLH 683.

Jagdish Chandra vs. S K Saraf, reported in AIR

1999 SC 217.

George Zacharia Vs. T K Varghese, reported in

1994(4) scale 694.

Thakarsi Lallubhai Vs. State of Gujarat,

reported in 1993(1) GLH (U.J) 21.

Order passed in Cri. Misc App. No. 2599/2013.

Narendrakumar Jaynti Vs. State of Gujarat,

reported in 1996 GLR 835.

Kumar Debashish Vs. State of Orrissa, reported

in 2008 CRLJ 2397.

State of Haryana Vs. Bhajanlal and Others,

reported in 1992 SCC(Cri)426

Kishan Singh (D) Through L.Rs. Vs. Gurpal Singh.

In the submission of Mr Kotia, therefore, looking

to the aforesaid circumstances, the First Information

Report was nothing but one more attempt to pressurize

the accused. According to Mr Kotia, the complainant

Ushaben was in the habit of filing successive

litigations civil as well as criminal, including one

under Domestic Violence Act. This was an of frustrated

litigant and she having failed to secure appropriate

relief under a civil suit of 49 of 2010 has resorted

to the filing of the present First Information Report,

which is nothing but an abuse of process and even

otherwise a civil dispute, and therefore, this Court

should in exercise of powers under Section 482 of the

Cr.P.C should quash the complaint. Mr Kotia further

contended that what also needs to be appreciated is

that in the complaint she has not named the purchaser

of the shop, though, she was aware of as is evident

from the suit she filed a few days prior to her filing

of the complaint. In the suit she has specifically

named Mr. Kamlesh Pravinchandra Shah as a subsequent

purchaser. When faced with a situation that the suit

could fail as a subsequent purchaser was not joined as

a party, a civil suit being civil suit No. 190 of 2012

was filed, wherein apart from the present accused

being defendants Nos. 1 and 2, the tenant of Shop No.

156 and the subsequent purchaser of shop No. 157 of

the Non Trading Corporation namely Madhav Darshan have

been arrayed as defendants. Obviously, therefore, that

the dispute is civil in nature, which also is an

additional factor, the Court should rule in favour of

the applicant.

Mr S M Kikani, learned advocate has appeared on

behalf of Mr Premal Rachh, learned advocate for

respondent No.2-original complainant and contended

that from the panchnama filed on the basis of the

complaint, it is evident that construction had been

carried out in the immediate past in the disputed

shops which was evident enough to show the intention

of the accused to take law in their hands. Mr Kikani,

further contended that in the year 2007 also a

criminal complaint had been filed against the present

accused being Criminal Complaint No. 790 of 2007,

which showed the conduct of the accused in repeatedly

circumventing the law and interfering with the

possession of the complainant.

Mr. Kotia, further contended that the complaint

so filed on 03.02.2010 categorically discloses the

pending civil litigation, and therefore, they had

disclosed this in the complaint and merely because

such civil suit was pending, it cannot be held to be a

cause against the complainant.

Lastly Mr Kotia contended that on reading the

complaint, ingredients fit enough to disclose

commission of offence under Sections 341, 451, 427,

read with Section 114 of the Indian Penal Code were

made up and the Court, therefore, should not exercise

its extraordinary power and quash the complaint.

Mr. Himanshu Patel, learned APP has also taken me

through the contents of the complaint and submitted

that prima facie, case has been made out against the

applicants and original-accused. Reading of the First

Information Report dated 03.02.2010 and the panchnama

and the Commissioner''s Report do suggest the

complicity of the applicants in commission of the

offence. The Commissioner''s Report shows carrying out

of construction in the disputed shops, and therefore,

even if the Court was to come to a conclusion that

Section 341 was not attracted, enough it was to

satisfy the ingredients for offences under Sections

452 and 457, and therefore, the complaint need not be

quashed.

Having heard learned advocates for the respective

parties, the question that needs to be addressed is,

whether the First Information Report so filed deserves

to be quashed.

. Let us appreciate the facts, which has led to the

filing of the present complaint. The reading of the

complaint itself first suggest that what the complaint

makes out on a bare reading is that disputes regarding

the ownership and possession of shops Nos. 156 and 157

are pending between the parties. The complaint further

discloses that shop No. 157 appears to have been sold

according to the complainant to some unknown person in

violation of family agreement, according to which, the

shops should have come to the complainant-Ushaben. A

close scrutiny of the complaint further reveals that

the grievance appears to be that some glass panes have

been removed from the shop. According to the

complainant, she has approached the police

authorities, but has failed to draw their attention.

The shop has been sold to anti social element.

. Sections 341, 452, 451 and 427 have been

mentioned in the complaint. Section 341 pertains to

wrongful punishment for wrongful restraint. According

to the Section, whoever wrongfully restrains any

person shall be punished with a simple imprisonment

for term as sought in the said section. Section 339 is

defined as wrongful restraint as when a person is

prevented from proceeding in any direction in which

such person has a right to proceed, person wrongfully

restrains the other.

. Section 452 of the Indian Penal Code speaks of

house tress pass. According to this section, one who

commits house tress pass having made preparation for

causing harm to any person or for assaulting any

person or for wrongfully restraining any person or for

committing any fear of harm or of assault of wrongful

restraint shall be punished. The term is laid down in

the section. 427 of the I.P.C, which is also invoked

by the complainant, speaks of mischief causing damage

or loss to the amount of Rs.50/- or upwards.

. Bare reading of the complaint, when read in line

with the sections invoked, suggests that the complaint

neither discloses as to how and in what manner the

action / omission of the accused brings them within

the purview of having committed such offences.

Nothing is shown in the First Information Report, to

satisfy this Court that the ingredients of the

sections so invoked are made out.

. This Court is aware of the fact that merely

because civil proceedings are pending criminal

proceedings need not be truncated and quashed. It is

not within the jurisdiction of this Court to analyze

and compare the set of facts, which may be revealed on

examination of a complaint viz-a-viz a plaint in a

civil dispute, particularly when in a civil dispute

and in a criminal complaint the examination of

evidences and the procedure is different. Keeping this

yardstick in mind, at the same time, one can not loose

sight of the fact that when the dispute as presented

on reading of the First Information Report essentially

reveals that such a dispute is of a civil nature and

has been given a cloak of a criminal offence, before

issuing a process invoking criminal jurisdiction the

Court needs to exercise a great deal of caution.

. On reading of the complaint in hand, what becomes

apparent is that the complaint intermingles and is

over powered in its averments to suggest that

ownership and possession of shops Nos. 156 and 157 are

pending. Though, merely civil suit being Civil Suit

No. 49 of 2010 has been filed by the complainant would

not automatically oust her right to file such a

complaint. However, from the averments in the

complaint, what reads out and what appropriately seems

to pain the complainant is wrongful deprivation of her

ownership to the shops Nos. 156 and 157 in question.

The averments of the civil suits overlap into the

averments made in the complaint.

. This Court, in the facts of the present case,

merely because a criminal complaint is filed invoking

Sections 341, 452 and 451 of the Indian Penal Code

cannot permit such a complaint to be proceed with.

When in addition to the bare ingredients of such

Sections are missing from the complaint. Moreover on

reading the complaint it becomes clear that the

complaint is nothing but mirror image of the plaint of

the civil suit filed against the applicants-accused.

That the dispute is of a civil nature is writ large on

the reading of the complaint.

. Even, when this is examined in light of the past

history of the complainant invoking the criminal

machinery, the Final Report filed under Section 173 of

the Code of Criminal Procedure in the complaint lodged

being 790 of 2007, the reading of the Summary Report

indicates that the simmering dispute between the

parties was regarding the ownership of the shops. The

police authorities have not prima facie found that the

ownership of the shops was of those of the accused. A

Summary Report was then filed.

. Mr S P Kotia''s submission, therefore, that the

dispute essentially revolves around possession and

ownership, which is of a civil nature and therefore

the criminal complaint needs to be quashed deserves

attention. Reliance has been placed by Mr. Kotia in

the judgement of the Supreme Court in the case of M/s

Thermax Ltd. Vs. K M Johny, reported in 2011(13)SCC

pg 412 supports his case. The Hon''ble Supreme Court

in the aforesaid case, relying in the earlier decision

in case of Alpic Finance Ltd., Vs. P Sadasivan &

Anr., reported in 2001 (3)SCC 513 observed that, when

there are situations where the dispute is

predominantly a civil wrong and when material produced

lead the Court to a conclusion that such facts do not

amount to a criminal offence as the ingredients of

criminal offences are wanting, the Court should in

exercise of its power under Section 482 quash such

complaint.

. Needless to refer to all the judgements which

Mr.Kotia has sought in support of his contention. Even

in the case of Anil Mahajan vs. Bhor Industries Ltd.,

reported in 2005 10 SCC 228, though while dealing

with a complaint lodged for an offence of cheating the

Hon''ble Supreme Court referred to the earlier decision

and held as under:

"11 In Madhavrao Jiwajirao Scindia & Ors Vs. Sambhajirao Chandrojirao Angre & Ors. (1988)1 SCC 692, this Court, after pointing out the grounds on which the criminal proceedings be quashed under Section 482 of the code at preliminary stage by the High Court highlighted that a case of breach of trust is both a civil wrong and a criminal offence. While elaborating the same, this Court further held that there would be certain situations where it would predominantly be a civil wrong and may or may not amount to criminal offence. Based on the materials in that case, the Court concluded that the case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are

wanting."

. Having examined the facts of the present case,

and having found that even the basic reading of the

complaint discloses that the dispute is essentially of

a civil nature, a conclusion which this Court has

arrived at on examination of the complaint, past

history of the litigations that are pending, it is a

fit case in which extraordinary powers under Section

482 of the Cr.P.C be exercised and the complaint so

made be quashed. Accordingly, this application is

allowed and the FIR being C.R. No-I-30/2010 registered

at ''A'' Division Police Station, Bhavnagar, dated

03.02.2010, against the applicants is hereby quashed

and set aside. Rule is made absolute to the above

extent.