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Judgment
This application has been filed under section 482 of the Code of
Criminal Procedure for quashing of FIR being C.R.No.I-159/2012 qua
the present applicants (original accused no.5 and 6) registered with
J.P. Road Police Station, Vadodara for the offences punishable under
section 409, 420, 467, 468, 471, 120(B) and 114 of the Indian Penal
Code.
The facts and circumstances giving rise to this case are that;
2.1 The father of the applicant no.1 namely Chimanbhai
Purshottambhai Patel was the owner of one building known as "C.P.
Point", which was purchased from Hindustan Earth Movers in the year
2001. That one Estate Broker namely Danabhai informed the
complainant-respondent no.2 in the year 2006 that four shops were
available for sell in C.P.Point, and therefore, the complainant was
inquired about his desire to purchase the same. The complainant also
went to the place i.e. C. P. Point and decided to purchase four shops
at around cost of Rs. 10,20,000/- (Rupees Ten Lacs Twenty thousand
only). The payment was made by the complainant categorically
mentioned in the FIR. That an amount of Rs. 6,15,000/- (Rupees Six
Lacs Fifteen thousand only) was paid, against which, Chimanbhai
Patel as well as Alpeshbhai Patel issued receipts under their
signatures. On 30.09.2006, the complainant alongwith the Estate
Broker Danabhai Bharwad as well as Kiritbhai Patel, Ajit Vaghela
alongwith Santosh Yadav went to the C.P.Point building, wherein
Chimanbhai Patel, Jayeshbhai Patel-applicant no.1 and his brother
Alpeshbhai Patel were present and thereafter, 2 cheques were also
given by the complainant. In all an amount of Rs. 4,05,000/- (Rupees
Four Lacs Five thousand only) was paid towards four shops.
2.2 Thereafter, on a request made by the complainant about the
construction of the shops and sale-deed, upon which, he was
informed that construction of the shops is likely to be taken some
time, and therefore, the complainant got a doubt that accused
persons including the applicants are not having good intention.
Thereafter, one power of attorney was prepared by Chimanbhai Patel
in favour of Mr. Santosh Yadav to make transaction of the aforesaid
shops purchased by the complainant. Further, an amount of Rs.
2,20,000/- (Rupees Two lacs Twenty thousand only) was demanded,
which was paid by the complainant. On 03.10.2008, a registered sale
deed of the aforesaid shops was executed through power of attorney
holder Shri Santosh Yadav with the office of the Sub Registrar bearing
No. 10669/2008, and thereafter, entry was also made in the property
card and city survey record on 31.08.2008 vide entry No. 3325, which
was certified on 28.11.2008. It was impressed to the complainant that
the intention of the accused persons, from the beginning, was not
good and they were making false statements on numerous occasions
that they are in financial constraints, on account of which,
construction work of the shops was not completed and they were
frequently demanding money from the complainant. The allegations
were made in the complaint that on 01.07.2010, Chimanbhai
Parsottambhai and Alpesh Chimanbhai Patel had asked the
complainant to visit their house, and thereafter, on their request, the
complainant visited their house, wherein accused persons were
present along with the present applicants and he was informed that
two showrooms and one flat on second floor were also required to be
sold by them as they were facing financial constraints, and therefore,
he was asked to make them help.
2.3 The complainant, after discussing the issue with his daughter
Naynaben as well as his wife, contacted Shri Chimanbhai as well as
his two sons including the applicant no.1. At that time, he was
informed that the flat would be sold at the rate of Rs. 16,75,000/-
(Rupees Sixteen Lacs Seventy Five thousand only) and 2(two)
showrooms will be sold at the rate of Rs. 35,00,000/- (Rupees Thirty
Five Lacs only). As it was decided by the complainant to purchase the
aforesaid flat and two showrooms from the accused, he paid an
amount of Rs. 40,55,000/- (Rupees Fourty lacs Fifty Five thousand
only) through cheuqe and cash before July, 2010. Thereafter, on
03.07.2010, one registered agreement to sell No. 8673 was executed
in favour of Naynaben, daughter of the complainant and further
power of attorney was given to him for aforesaid flat along with
possession receipts. Shri Chimanbhai also executed one affidavit
admitting registered sale deed of shop No. 1, 2, 3 and 4 and
thereafter, a registered sale deed of the flat was executed by the
complainant in favour of his daughter namely Naynaben in a capacity
of power of attorney of the aforesaid flat. The amount of Rs.
24,00,000/- (Rupees Twenty Four lacs only) was paid for
consideration of two showrooms at first floor by the complainant,
against which, Chimanbhai Patel had made an agreement to sell with
the daughter of the complainant on 31.07.2010. Thereafter, under
the shock and surprise, the complainant came to know that shops No.
3 and 4 were sold to one Ajit Sarkar and Aarti Sarkar through
registered sale deed by Shri Chimanbhai Patel, since the complainant
was not visiting the aforesaid property, and therefore, he made aware
on 31.08.2010 from the office of the Sub Registrar and came to know
that properties were sold to aforesaid persons and others, a loan of
Rs. 21,00,000/- (Rupees Twenty One lacs only) was taken through
Bank of India on 30.08.2008 by mortgaging the said flat property. He
also came to know that present applicant No.1 gave the shops No. 1
and 2 as well as two showrooms on the first floor of C.P. Point to one
Mr. Sarfaraz through registered agreement to sell no. 4074 on
11.04.2012. As all the accused have committed the offence alleged in
the complaint, this application is filed by the present applicants qua
the accused no. 5 and 6 arraigned in the complaint, with a request to
quash and set aside the complaint.
I have heard learned advocate Mr. Mahesh Bhavsar appearing
on behalf of the applicants and learned advocate Mr. Ashish M. Dagli
appearing on behalf of the respondent no.2 as well as learned APP Mr.
Rutvij Oza appearing on behalf of the respondent no.1-State.
It was submitted by Mr. Bhavsar, learned advocate for the
applicants that as per the complaint itself, all the documents alleged
to have been executed by the accused no.1. The fact remains that
the present applicants being accused no. 5 and 6 have not executed
any single document or they have not put any signatures in the
alleged document. That they are innocent and have played no role in
commission of alleged offence. Even bogus documents are generated
by the complainant himself, for which, application dated 4th August,
2011 was given, but police has not investigated the same. It is further
argued by learned advocate Mr. Bhavsar for the applicants that from
bare reading of FIR, no offence as alleged is made out against the
present applicants. That applicant no.1 has legally got the property in
his share in family partition and therefore, he gave the property on
rent. That giving property on rent can never be treated as an offence.
That even as per FIR, no documents are forged or fabricated by the
applicants. That the FIR was filed after filing the Civil Suit with the
sole intention to harass the accused persons. The action of the
complainant is not bonafide. The alleged transactions are of
completely civil nature, for which, civil suits are pending and they are
to be decided by the Civil Court. That the dispute is of civil nature and
it has been given criminal colour by the complainant, and therefore,
the FIR is required to be quashed. That the present applicant no.1
was released on bail vide order dated 27th December, 2012 by this
Hon''ble Court in Criminal Misc. Application No. 16928/201, while the
applicant no.2 was released on bail by the learned District Judge,
Vadodara in Criminal Misc. Application No. 2053/2012 by an order
dated 09.11.2011. That even if police has filed charge sheet, the FIR
can be quashed by this Court, when no prima facie case is found
against the applicants/accused. From the entire police papers, not a
single word as averred by the investigating agency about any role
alleged to have been committed by the applicant no.2 Varshaben.
That applicants were not partners of the Akash Enterprize and they
have not accepted any money, they have not given any promise to
the complainant, they have not executed any document, they have
no right or share at the relevant point of time in the disputed
properties, and therefore, they are unnecessarily dragged into the
criminal proceedings by the complainant without any fault on their
part.
That however, one complaint was submitted by the applicants
on 04.08.2011 against one Bhagubhai Mavjibhai Patel and others
before Police Commissioner, as bogus documents were prepared,
threats were given to vacate shop No. 1, 2, 3 and 4 and to kill. But, no
action was taken by the police against Bhagubhai Mavjibhai Patel and
others as the police is acting in collusion with Bhagubhai Mavjibhai
Patel-Complainant. He has further argued that accused no.6 was
arrested at 23.40 hours on 5th November, 2012 within no time after
registration of the complaint, which was against the provisions of
Section 46(4) of the Code of Criminal Procedure, and therefore, the
complaint was made before the learned Chief Judicial Magistrate,
Vadodara and on 1st December, 2012, it is observed by the Court
that the accused no.6 has not generated any document. Hence, it
was requested by learned advocate Mr. Mahesh Bhavsar appearing
on behalf of the applicants to quash and set aside the complaint
being C.R.No. I-159/2012 qua the present applicants (original accused
no.5 and 6) registered with J.P. Road Police Station, Vadodara.
Learned advocate Mr. Bhavsar for the applicants, in support of
his arguments, has relied on (1) 1992 Suppl(1) Supreme Court Cases-
335, (2) (2010)10 Supreme Court Cases-361, (3) (2009)8 Supreme
Court Cases 751-Note "C", (2000)3 Supreme Court Cases-269, (4)
(1977)1Supreme Court Cases 505 as well as unreported judgment (5)
2014(0) AIJEL-HC 232048 (Arvindbhai Shantilal Modi Versus State of
Gujarat) and (6) 2014(0) AIJEL-HC 231905 (Narendra Maganbhai Patel
Versus State of Gujarat).
On the other side, Mr. Ashish M. Dagli, learned advocate for the
respondent no.2 vehemently opposed the submissions made on
behalf of the applicants and argued that the disputed property was in
the name of Chimanbhai Patel. Management of property was done by
his two sons namely Alpeshbhai Patel and Jayeshbhai Patel-present
applicant no.1. At the time of transaction of purchasing of the
property in dispute by the complainant, the conditions were fixed and
finalized in presence of the applicants and Chimanbhai Patel and his
son Alpeshbhai and during the investigation of the offence, the police
has made detailed investigation and found sufficient evidence against
the accused. Hence, charge sheet was filed by the investigating
officer on 18th May, 2010. That sale deed of the property was
executed by Shri Chimanbhai in favour of the complainant on 3rd
October, 2008. Thereafter, one MOU was prepared by father and his
two sons to waive all the rights of the complainant from the disputed
property i.e. four shops in C.P. Point as he was the owner on the basis
of the sale deed. MOU was prepared on 19th May, 2010. That Aakash
Enterprise is a partnership firm, in which, the present applicant no.1
was having the interest. That present applicants were fully aware
with the transactions carried out by one Chimanbhai in favour of the
complainant, accepting money, issuing receipts and vouchers in
favour of the complainant. However, an agreement to rent was
executed by the present applicant no.1 in favour of Nilesh Jayantibhai
Patel, whose statement was recorded by the police during the
investigation, who had rented the shop no.1. The second agreement
was also executed by the present applicant no. 1 regarding shop
no.2, under his signature. The third agreement of the showrooms on
second floor was also executed by the applicant no.1. Before that,
equitable mortgage was executed in favour of the Bank of India by
Shri Chimanbhai and present applicant no.1-Shri Jayeshbhai Patel in
the year 2005. That another supplementary agreement in form of
equitable mortgage was also executed by father and son on 13th
August, 2008.During the investigation, the police has recorded
statements of different witnesses namely Kiritbhai, Ajitkumar, to
whom the property bearing shop No. 3 and 4, sold again by Shri
Chimanbhai, That Chimanbhai and other family members have
entered into second and third transaction of the said property after
selling it to the complainant. Another complaint was also lodged
against Chimanbhai and his family members, which is a part of
charge sheet. Detail evidence was required to be recorded before the
Trial Court as they are prima facie involved in the offence. At this
juncture, the power vested to this court under Section 482 of the
Code of Criminal Procedure would not be exercised in the facts and
circumstances of the case. In support of his contentions, learned
advocate Mr. Dagli appearing on behalf of the respondent no.2 has
relied on 2009 Criminal Law Journal-2585 (Orissa High Court) and AIR
2009 Supreme Court 2383 and requested to dismiss the present
application.
Learned APP Mr. Rutvij Oza appearing on behalf of the
respondent no.1-State has supported the arguments advanced by
learned advocate Mr. Ashish M. Dagli appearing on behalf of the
respondent no.2 and argued that approach of the court should be
very sparingly and with circumspection while exercising the power
under Section 482 of the Code of Criminal Procedure. He has further
argued that complaint has to be examined as a whole, but without
examining the merits of the allegations made therein, no final
conclusion can be arrived. That prima facie case is made out and
detail investigation was carried out by investigating officer and it is
found that there is sufficient evidence against the accused, which
may establish the charge against him. He has further submitted that
mere fact that offence committed is of a civil transaction by itself
would not be sufficient to quash the complaint. That from the facts, in
the factual matrix quashing of complaint would not be warranted.
Ultimately, it was requested by him to dismiss the present
application.
Heard learned advocates for the respective parties, learned APP
Shri Rutvij Oza for the respondent no.1-State and having gone
through the averments, documentary evidence placed on record,
charge sheet papers produced on record, it appears that land bearing
Plot No. F/41/B of survey No. 356/A out of survey No. 33 was
purchased by the accused no.1-Chimanbhai Patel from Hindustan
Earth Movers in the year 2001 by paying consideration amount of Rs.
14.50 lacs. Thereafter, upon the said piece of land building namely
C.P. Point was being constructed. It appears from the record that the
original owner of the said building was Chimanbhai Purshottambhai
Patel-accused no.1 and father of the applicant No.1 (original accused
no.5). It also appears from the contentions made in the complaint
that building of C.P.Point was under construction and complainant
Bhagubhai intended to purchase four shops situated on the ground
floor of the said building. That part payment of Rs. 6,15,000/- was
made, for which, accused no.1-Chimanbhai Patel and accused no.2
Alpesh Patel issued receipts of the payment. Thereafter, a cheque of
Rs. 2,50,000/- dated 30.09.2006 of Dena Bank, Ellisbridge Branch,
Ahmedabad being No. 361816 was issued. Total amount Rs.
4,05,000/- was paid towards sale consideration. Both the cheques
were issued in the name of Akash Enterprise. Thereafter, accused
no.1 Chimanbhai Patel executed agreement to sell, which was
notarized and one power of attorney was also executed in favour of
Santoshbhai Laxmanbhai Yadav. At the time of execution of
agreement to sell, entire amount of sale consideration was paid for
the shops by the complainant. Thereafter, market price of shops was
increased and the construction of shops was not completed. That
accused no.1, 2 and 5 were intended to get difference of market price
of the shops. On payment of an additional amount as per demand
made by them including the present applicant no.1, an agreement to
sell bearing No. 2839/2008 was executed by power of attorney
Santoshbhai Yadav in favour of the complainant on 15.03.2008.
Thereafter, the said power of attorney also executed registered sale
deed No. 10669/2008 in favour of the complainant for four shops and
entry No. 3385 was mutated in property card on 31.10.2008, which
was certified on 28.11.2008.
Thereafter, on the request made by the accused persons as
they were facing financial constraints, the complainant became ready
to purchase one flat on second floor and two showrooms. Sale
consideration of flat was fixed at Rs. 16,75,000/- and sale
consideration of two showrooms was fixed at Rs. 35,00,000/-. The
complainant paid cash and cheque amount of Rs. 40,55,000/- before
July-2010 and registered agreement to sell No. 8673 dated
03.07.2010 was executed in favour of Nayanaben daughter of
complainant and power of attorney was also executed in favour of the
complainant for the benefit of Nayanben. Even Kabja Pavti of the flat
was also issued. An affidavit was executed by the accused no.1
admitting registered sale deed of shop No. 1,2, 3 and 4 executed by
power of attorney. Thereafter, the complainant, being a power of
attorney holder of the second floor flat, executed registered sale
deed. It is also alleged that for two showrooms of first floor, sale
consideration amounting to Rs. 24,00,000/- was paid, for which,
agreement to sell was executed on 31.07.2010 in favour of daughter
of the complainant namely Nayanaben by the accused no.1
Chimanbhai. Thereafter, it appears that accused no.1-Chimanbhai
sold shop No. 3 and 4 to one Ajit Sarkar and Aarti Sarkar. Therefore,
the complainant made a search in Registrar Office on 31.08.2010 and
he came to know that accused no.1 has executed registered
agreement to sell bearing No. 6406 on 23.07.2009 in favour of Shri
Ajit Sarkar and Aarti Sarkar and also executed registered sale deed
No. 10043 dated 13.08.2010 for shop No.3 and 4. He further came to
know that on 30.08.2008 loan of Rs. 21,00,000/- was obtained from
Bank of India, Vadodara and shops were mortgaged. Even for shop
No. 1 and 2 and for two showrooms, a registered agreement to sell
was executed on 11.04.2012 in favour of one Sarfaraz. It transpires
from aforesaid transactions that fact of mortgaging the building was
suppressed while executing registered agreement to sell and sale
deed in favour of Nayanaben. It also appears that Rs. 6,00,000/-was
received while executing agreement to sell for showroom situated on
shop No. 3 and 4 in favour of Arup Ajit Sarkar.
The complainant carried out search in the office of Sub
Registrar and he came to know that agreement to sell was executed
in favour of Sarfaraz for shop no. 1 and 2 and two showrooms
situated on the first floor. However, amount of sale consideration was
duly paid for shop No. 1 to 4, the accused no.1 Chimanbhai Patel
mortgaged the property of C.P.Point in Bank of India on 30.08.2008,
which was never disclosed and informed to the complainant even in
the document executed by him. On a visit made by complainant at
the site, he found that in shop No. 1 one hotel was running and in
shop No.2, one Ice-cream shop was running. Above shops, there is a
showroom, which is rented by accused no.5 i.e. applicant No. 1-
Jayeshbhai to Dancing School. It is undisputed that shop no. 1 to 4
were purchased by the complainant from the accused No.1
Chimanbhai Patel and received full amount of aforesaid shops.
However, the accused no.1 executed registered sale deed for shop
no. 3 and 4 in favour of Ajit Sarkar and Artiben Sarkar. The entire
building was mortgaged with the Bank of India and loan of Rs.
21,00,000/- was obtained. That without getting any permission from
the bank, flat and showroom were sold to Nayanaben, daughter of
the complainant by executing agreement to sell. Even partition deed
was executed by accused no.1 in favour of the applicant no.1-
Jayeshbhai (accused no.5). It appears from the record that a meeting
was arranged at the time of first transaction as well as of the second
transaction while the complainant was intended to purchase four
shops and show rooms as well as flat. Many transactions were also
carried out in presence of the present applicant no.1 and his father
Chimanbhai Patel and his brother Alpeshbhai Patel. The applicant
no.1 was aware with the aforesaid transactions such as selling of 4
shops to the complainant, agreement to sell executed in favour of the
complainant, power of attorney executed in faour of Santosh Yadav,
money receipts issued by his father and his brother on behalf of
Akash Enterprise, meeting for discussing the sale transaction of the
property with the complainant, fixing the price, executing the
agreement to sell of the flat and showrooms, issuing cheques and
cash amount by the complainant to Shri Chimanbhai. All the facts
were under the knowledge of the applicant no.1. However, he has not
put his signature in any of the documents of the aforesaid
transactions, but all the transactions were carried out under his
guidance or instructions. Moreover, a partition deed was executed by
his father in favour of the applicant no.1 and having knowledge of the
facts that above said shops, showrooms and flat were sold to the
complainant. During the investigation, police has recorded the
statements of different witnesses and they also supported
prosecution case. From the police papers also, it transpires that prima
facie involvement of the applicant no.1 is found, however, no
signature was made by him in any of the documents. So far as the
applicant no.2 is concerned, no involvement in the offence is found
from the police papers. Therefore, so far as the applicant no.2 is
concerned, she cannot be dragged into the criminal proceedings.
Learned advocate Mr. Bhavsar appearing on behalf of the applicants
has submitted copies of the Civil Suits, pending before Civil Court at
Vadodara, filed by the either side. Pending of the Civil Suits in respect
of the same property does not itself say that the court to come to the
conclusion that civil remedy is the only remedy available to the
applicants herein. The object of the criminal law is to punish an
offender who commits an offence against the person, property or the
State for which the accused, on proof of the offence, is deprived of his
liberty and in some cases even his life. It is an anathema to suppose
that when a civil remedy is available, a criminal prosecution is
completely barred.
By placing reliance in a case of Dr. Sharda Prasad Sinha versus
State of Bihar reported in (1977) 1 Supreme Court Cases 505 , Mr.
Bhavsar, learned advocate for the applicants argued that where the
allegations set out in the complaint or chargesheet do not constitute
any offence, the High Court in exercise of its inherent power may
quash the Magistrate''s order taking cognizance of the offence. In
other case of Narendra Maganbhai Patel versus State of Gujarat
(2014(0) AIJEL-HC-231905), it is held that no case of forgery worth
the name could be said to have been made out by the original
complainant, or criminal breach of trust as defined under Section 405
of IPC and therefore, the complaint was quashed by the Court. In
another case of Arvindbhai Shantilal Modi versus State of Gujarat
(2014(0) AIJEL-HC 232048), it is held that no material was found from
the FIR constituting any cognizable offence, then it was not sufficient
ground that the police to proceed with the investigation without there
being any order of the Magistrate as per Section 155(2) of Code of
Criminal Procedure as observed by the court. It was further found that
no offence of forgery could be said to have been committed even if it
is accepted case of the first informant to be true. The complaint was
quashed and application was allowed.
Each case would required to be considered on factual facts. In
the instance case, prima facie, involvement of the present applicant
no.1 namely Jayeshbhai Patel is found by this court from the facts of
this case. There is no restriction in quashing the FIR, if the charge-
sheet is filed by the investigating agency during the pendency of this
application.
In a case of "State of Haryana and others V/s. Bhajanlal
and others" reported in 1992 Supp(1)Supreme Court Cases-
335, it is observed that in the following categories of cases, the
extra-ordinary power under Article 226 or the inherent powers under
Section 482 of the Code of Criminal Procedure, can be exercised by
the High Court either to prevent abuse of the process of any Court or
otherwise to secure the ends of justice, though it may not be possible
to lay down any precise, clearly defined and sufficiently channelized
and inflexible guidelines or rigid formulate and to give an exhaustive
list of myriad kinds of cases wherein such power should be exercised:
(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (3) where the uncontroverted allegations made in the FIR or ''complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (6) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
In a case of Padma Charana Behera v. State of Orissa and
others reported in 2009 Criminal Law Journal-2585 (Orissa High
Court) relied by Mr. Ashish Dagli, learned advocate for the respondent
no.2, it is held that the prayer of quashing criminal proceedings has
to be exercised very sparingly and with circumspection and that too
in the rarest of rate cases and the court cannot be justified in
embarking upon made in the FIR or complaint and the extraordinary
and inherent powers of the Court do not confer an arbitrary
jurisdiction on the court to act according to its whims and caprice.
From the facts of this case, it is evidence that there is sufficient
evidence against the applicant no.1, which may establish the charge
against him even if the malafide is established, the proceedings
cannot be quashed.
In a case of Ravindra Kumar Madhanlal Goenka and Another
versus M/s. Rugmini Ram Raghav Spinners P. Ltd. Reported in AIR
2009 Supreme Court 2383, Hon''ble Supreme Court observed that
while considering the facts that the defence case may be pleaded,
but said defence was required to be considered at the later stage and
not at this stage. The appellants would have ample opportunity to
raise all the issues urged in this appeal at an appropriate later stage,
where such pleas would be and could be properly analyzed and
scrutinized. Whatever defence or arguments canvassed by the
learned advocate for the applicants, he can be urged and provided an
opportunity to raise issue during the course of trial. This court is of
the opinion that while entertaining this application under Section 482
of the Code of Criminal Procedure, the materials furnished by the
defence cannot be looked into at this stage, but at the time of trial.
In this case, the investigation officer has completed the
investigation and found substance during the investigation and
hence, has filed the charge-sheet before the lower court and it would
be premature to say that applicant no.1 is not involved in the offence
or is an innocent.
In view of the aforesaid position, this Court has declined to
interfere with the criminal proceedings initiated at this stage qua the
applicant no.1 Jayeshbhai Chimanbhai Patel is concerned, and
therefore, the present application shall be allowed qua the applicant
no.2-Varshaben Jayeshbhai Patel and dismissed qua the applicant
no.1 Jayeshbhai Chimanbhai Patel.
The observations made by this Court would not affect any other
criminal proceedings against the present applicant no.2 or any other
accused pending before any other Court. It is clarified that concerned
court, in such an event, would decide the said proceedings without
influence of this order and on its own merits.
Rule is made absolute qua applicant no.2 and is discharged qua
applicant no.1. Direct Service is permitted.