ISMAIL VALIBHAI MOMIN Vs. STATE OF GUJARAT
LAWS(GJH)-2016-12-10
HIGH COURT OF GUJARAT
Decided on December 16,2016

Ismail Valibhai Momin Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

- (1.) The petitioner by way of present petition has questioned the complaint being C.R. No. I-158 of 2009 lodged before Khatodara Police Station, Surat for the offences punishable under Sections 406, 409, 420 and 120(B) of Indian Penal Code.
(2.) The case of the petitioner is that, petitioner no.1 had purchased a property being Shop Nos. 105 and 106 in Surya Plaza near Udhna Darwaza, Surat and the builder has issued possession receipt in favour of petitioner no.1 on 24.11.2005. The petitioner no.1 had paid full consideration towards the said purchase of shops and the registered sale-deed has been executed for the said shops later on after a period of three years in May 2008 as certain formalities were pending with the builder. It is the further case of petitioner that petitioner no.1 wanted to start a restaurant business in the name and style of Sunrise Restaurant in this property and therefore, immediately after purchase of the shops in November 2005 he applied for license under the Prevention of Food Adulteration Act, 1954 before Surat Municipal corporation and same was issued on 06.01.2006. Petitioner no.1 has also got BSNL telephone connection in March 2006 and all required necessary licenses have also been obtained later on from Police commissioner office as well as the other authorities. It is further the case of the petitioner that petitioner nos. 1, 2 and 3 have entered into a partnership with other seven persons including respondent no.2, who is the original complainant and the deed was executed on 21.04.2006, wherein the shares of petitioner nos.1, 2 and 3 and the profit and loss was also fixed at 8%, 30% and 4% respectively, aggregating to 42% shares and rest of 58% were to be divided amongst other seven partners and it has been ascertained that respondent no.2, original complainant, had only 8% in profit and loss of the partnership business. It is also the case of the petitioner that in view of stipulation contained in partnership deed the working partners were petitioner no.1 and 3 on whose shoulder the overall responsibility of managing the affairs of the restaurant and hotel was lying during the passage of time. It is the case of the petitioner that since restaurant / hotel was running smoothly, respondent no.2 herein wanted to take over the management of the restaurant and wanted to kick out petitioner nos. 1, 2 and 3 from managing the affairs of restaurant and hotel and therefore, has started interference and creating troubles. The case of the petitioner further is that respondent no.2 herein was harassing the petitioner nos.1 to 3 while they were returning their home in night from the business place as the normal routine hours were up to 11.30 in night. Petitioner no.3 was returning in the mid-night after finishing the work of restaurant by 12.30 in the night. On 18.02.2007, petitioner no.1 was in a suspicious manner met with an accident and since then was bed-ridden was not even able to perform his day to day routine work. Taking advantage of this situation, respondent no.2 and colleagues were neither partners nor in any way connected with the business which petitioners were handling on account of which the complaint came to be filed by petitioner nos. 2 and 3 before Police Commissioner on 29.01.2009 and subsequently, on account of intervention of police it is the case of the petitioner that they were compelled to make compromise so much so that petitioner no.3 had to file a Regular Civil Suit No.63 of 2009 before the Civil Court on 02.02.2009 against other partners including respondent no.2 for declaration and permanent injunction restraining the defendants including respondent no.2 from taking over the management of hotel. However, interim injunction application Exh.-5 is stated to have been pending though submitted in 2009.
(3.) It is further the case of the petitioners that to circumvent that other proceedings, respondent no.2 had filed a complaint before Police Commissioner against the petitioners by making frivolous allegation on 11.02.2009 immediately after the returning date of the aforesaid suit and subsequently, on 21.05.2009 the present complaint came to be lodged by respondent no.2 against petitioner before Khatodara Police Station, Surat for the offences punishable under Sections 406, 409, 420 and 120(B) of Indian Penal Code and by stating to be a case of counter blast against this complaint the petitioners have preferred present Criminal Misc. Application for quashment of the complaint being C.R. No.158 of 2009 lodged before Khatodara Police Station.;


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