We have heard learned counsel for the parties at some length.
The examination of the common impugned judgment dated
05.05.2017, passed by the High Court of Gujarat at Ahmedabad in
Special Criminal Application (Quashing) No. 4758 of 2015 and
Special Criminal Application No.4759 of 2015, allowing and
accepting the prayer for quashing of First Information Report1
No.CR I/2/2015 dated 23.01.2015 registered at Police Station
Gandhinagar Zone, District – Gandhinagar, Gujarat, would show that
a detailed factual examination and evaluation has been undertaken.
We are of the opinion that the said examination and evaluation
should not have been done by the High Court. There are disputed
questions of fact, as the private respondent(s) have taken a plea
SignaturethatNot Verified the two agreements dated 25.07.2013 and 13.08.2013 are not
1 For short “FIR”
2 For short “GJRL”
which is a subsidiary of Gitanjali Gems Limited. Learned counsel
appearing on behalf of the appellant – Digvijaysinh Himmatsinh
Jadeja in fact submits that the agreements are valid and binding.
It is also submitted that in terms of the agreement dated
13.08.2013, the private respondent(s) had agreed to return 24 karat
pure gold bars for which the consideration or price stood paid, but
were in deposit with GJRL in fiduciary capacity.
Learned counsel for the appellant – Digvijaysinh Himmatsinh
Jadeja has also drawn our attention to documents in the form of
confirmation letters, which are signed by Mr. Santosh Srivastava as
the Managing Director at GJRL and Mr. Shivendra Singh, Associate
Vice-President (Finance), on behalf of GJRL, as well as the
statement of accounts, which again is signed by the aforesaid
persons. These documents, it is submitted, confirm the fiduciary
nature of the deposit.
The stand of the private respondent(s) is that Mr. Santosh
Srivastava had resigned on 09.12.2013, and the agreements executed
by him were without authority.
But these assertions noted above are disputed factual
questions. The private respondents have not disputed the signatures
of Mr. Santosh Srivastava or Mr. Shivendra Singh, or their
designation. Some documents are also signed by Mr. Shivendra Singh
The impugned judgment refers to the requirements of Sections
406 and 420 of the Indian Penal Code, 18603. We are not examining
the said aspects in detail, as first, facts have to be ascertained,
including the nature and character of the deposit.
3 For short “IPC”
We must also take note of the contention raised by the
learned counsel for the private respondent(s) that there are
contradictions emerging in the stand taken by the appellant –
Digvijaysinh Himmatsinh Jadeja in the notice dated 15.07.2014,
which refers to breach of contract and another notice/letter dated
23.08.2014.
We should not go into these aspects, as it is a matter to be
considered and examined in the investigation. A wrong may be civil
wrong, or in a given case be a civil wrong and equally constitute a
criminal offence. The ingredients of a criminal offence should be
satisfied. We would refrain to make detailed observations in this
regard, though we have considered the said notice before passing
this order. The contention of the appellant - Digvijaysinh
Himmatsinh Jadeja is that assertions and all allegations have to
read holistically and not in a pedantic manner.
Another contention raised by the learned counsel for the
private respondent(s) is that the appellant – Digvijaysinh
Himmatsinh Jadeja has not accounted and paid for the sale proceeds
in terms of the agreement dated 13.08.2013, which has been
described as “Operational and Commercial Agreement.” This
submission on behalf of the private respondent(s) has been accepted
in the impugned judgment.
The appellant – Digvijaysinh Himmatsinh Jadeja has taken an
exception to the said reasoning on several grounds. One of the
arguments is that the reasoning does not take into account the
specific clause in the agreement dated 13.08.2013, which agreement
in fact accepts the agreement dated 25.07.2013, but does not, in
any way, override the fiduciary relationship with respect to the
gold bars. Set off, it is submitted, is not available. Suffice it
is to observe that the High Court should not have examined and
recorded conclusion on the disputed fact to quash the FIR. At this
stage, we record that pursuant to the registration of the FIR, the
investigation had proceeded. The order dated 14.09.2016 passed by
the High Court states that 17 persons had been examined by the
investigating officer(s) and statements under Section 161 of the
Code of Criminal Procedure, 19734 had been recorded. The High Court
notes that statements under Section 164 of the Code had also been
recorded. These were not considered.
Our attention is drawn to paragraph 49 of the impugned
judgment, with specific reference to respondent – Priti Mehul
Choksi. We believe that these observations are general observations
to the effect that a wife/spouse could not be said to be involved
vicariously. The appellant – Digvijaysinh Himmatsinh Jadeja submits
to the contrary. We would not like to make any comments as it is
only upon investigation, that a specific role attributable to
respondent – Priti Mehul Choksi, if any, would be ascertained.
In view of the aforesaid, the impugned judgment is set aside
and the appeal is allowed in the above terms.
The observations in this order will not be read as comments
or observations on the merits of the case. Investigation will
continue without being influenced by any of the findings or
observations made in the impugned judgment or in the present order.
We also clarify that while conducting the investigation, the
4 For short “Code”
Investigating Officer(s) will keep in mind the rulings of this
Court and High Courts interpreting Sections 406, 420, 464 and 465
etc. of the IPC.
Pending application(s), if any, shall stand disposed of.