Gujarat High Court
Shailendrasinh Ghanshyamsinh Jhala vs State Of Gujarat on 8 August, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
R/CR.MA/13257/2022 ORDER DATED: 08/08/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13257 of 2022
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SHAILENDRASINH GHANSHYAMSINH JHALA
Versus
STATE OF GUJARAT
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Appearance:
MR TEJAS M BAROT(2964) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR.HARDIK SONI, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 08/08/2022
ORAL ORDER
1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant has prayed for quashing and setting aside the Criminal Case No. 14951 of 2019 pending in the Court of the Learned Additional Civil Judge and JMFC, Court No.24, Vadodara arising out the FIR being I -C. R. No. 17 of 2019 registered with Harni Police Station, District :- Vadodara for the offences punishable under Sections 406, 420 and 114 of the Indian Penal Code.
2. Heard learned advocate Mr. Tejas Barot for the petitioner and Page 1 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 learned APP Ms. M. D. Mehta for the respondent - State.
3. It is the case that the impugned FIR was registered by one Bhanwarlal Laxminarayan Gaud wherein he has alleged that he was into business of transportation and he is an agriculturist as well and he is having various parcels of lands at Village:
Vaghodiya, Gajadhara and Vemali. One Nayanaben @ Nasimbanu Firojkhan wanted to sell her ancestral land bearing survey nos. 52, 54 and 191 situated at Village: Vemali, out of which the land bearing survey no. 191 was decided to be sold at price of Rs. 72/- per sq. feet and survey no. 54 was decided to be sold at Rs. 350/-, for which on 08.04.2010 registered agreement to sale was executed and the complainant paid sum of Rs.10,00,000/- by way of two separate cheques of Rs.5,00,000/- each, whereas for survey no. 52, the partner of the complainant executed an agreement to sale and paid a consideration of Rs.5,00,000/- by two different cheques. That some revenue proceedings were pending against said Nayanaben @ Nasimbanu as her name was not entered into revenue record and therefore, some litigation took place. Page 2 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 However, upon order dated 14.02.2018 passed by this Court, name of Nayanaben @ Nasimbanu was entered into revenue records vide Mutation Entry No. 2845. Thereafter, the complainant paid on different dates total sum of Rs.16,00,000/- to the said Nayanben @ Nasimbanu and got the land cleared. However, as she did not execute the sale deed in favour of the complainant and without even knowledge of the complainant got the agreement to sale which was in favour of the complainant cancelled. In the cancellation of agreement to sale deed, there is signature of only Nayanaben and two witnesses and ultimately said Nayanaben @ Nasimbanu sold the land bearing survey nos. 52 and 54 by way of a registered sale deed executed on 02.01.2019 in favour of the present petitioner and thereby, cheated the complainant. In the complaint, it is alleged that though the present petitioner was having knowledge about the aforesaid facts, despite that he purchased the land in question and thereby, abetted Nayanaben in cheating the complainant and therefore, FIR under sections 406, 420 and 114 of the Indian Penal Code was registered. Page 3 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022
4. Though the FIR was registered on 27.02.2019 and thereafter, in the month of April 2019, on 27.04.2019 the charge-sheet was filed against the present petitioner alongwith other accused and thereafter, it was culminated into Criminal Case No.14951 of 2019 which is pending before the Court of learned Additional Civil Judge and JMFC, Court No. 24, Vadodara.
5. Learned advocate Mr. Tejas Barot appearing for the petitioner submitted that the petitioner is a bonafide purchaser and as such in cheating the complainant, he has not played any role.
6. In the morning, the matter was called out in the first session. Learned advocate Mr. Tejas Barot made submissions and ultimately as the Court was not inclined to entertain this petition, he ultimately requested the Court to keep the matter in the second session so as to enable him to take necessary instructions from the petitioner as to whether he intends to withdraw the petition or he is inviting the order. Page 4 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022
7. In the second session, learned advocate Mr. Barot requested for time by stating that now the charge is framed and therefore, he wants to place on record the order whereby charge is framed and to amend the petition.
8. The request of learned advocate Mr. Barot was rejected by this Court for adjournment as the complaint was originally filed in the month of February, 2019 for which the charge-sheet was already filed on 29.04.2019 whereas the petition was preferred only after three years after the charge-sheet was filed in the year 2022. In the petition, nowhere it is stated that the charge has already been framed though the petition was filed after framing of the charge which amounts to suppression of material fact.
9. Ultimately, as the Court found that the petitioner suffers from the vice of suppression and refused to adjourn the matter, the matter was argued by the learned advocate Mr. Barot. Learned advocate Mr. Barot submitted that though the charge-sheet was filed in the year 2019, all throughout the present petitioner Page 5 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 has remained present before the Trial Court and it is the complainant who has constantly remained absent. Learned advocate Mr. Barot by relying upon the decision of the Hon'ble Supreme Court in the case of Satish Mehta V/s. State of (NCT of Delhi) and Another reported in (2012) 3 SCC 614 submitted that powers of this Court to quash the proceedings even after framing of charge is wider as the evidence adduced while submitting the charge-sheet papers can be looked into for determining the disclosure of offence and therefore, he requested for time to place on record the order of framing of charge and other necessary documents by amending the petition. Since, the adjournment was not granted, learned advocate Mr. Barot made following submissions:-
1. Learned advocate Mr. Barot read over the FIR and upon reading of the FIR, he submitted that no offence can be said to have been committed by the petitioner. He further took the Court to the four different sale deeds executed in favour of the petitioner and submitted that all four sale deeds were executed by the petitioner by Page 6 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 paying the amount of consideration by cheque and no cash component was there in paying the consideration as alleged in the FIR.
2. Learned advocate Mr. Barot further submitted that the petitioner carried out the search from the office of the Sub Registrar and it is only after due verification that the land was purchased by the petitioner and sale deed was executed in favour of the petitioner.
3. Learned advocate Mr. Barot drew attention of this Court to the sale deed whereby agreement to sale was cancelled and submitted that after the agreement to sale deed was cancelled, the petitioner purchased the parcel of land thereafter and therefore, if the first informant had any grievance the same could have been only against the accused no. 1 and 2 and not against the present petitioner.
10. Learned advocate Mr. Barot also relied upon the judgment in case of Prof. R. K. Vijaysarthy and Another V/s. Sudha Seetharam and Another reported in (2019) 16 SCC Page 7 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 739 and by relying upon paragraphs no. 12, 13, 22 and 23 of the said judgment submitted that in view of the observations of the Hon'ble Supreme Court in the aforesaid judgment, necessary ingredients of sections 406 and 420 of the Indian Penal Code are missing qua the present petitioner in the impugned FIR and hence, the impugned FIR and all consequential proceedings are required to be quashed and set aside.
11. No other or further submissions were made by the learned advocate Mr. Tejas Barot nor any other judgments were relied upon by him.
12. Learned APP Mr. Hardik Soni appearing for the respondent - State vehemently opposed this petition and submitted that the present petitioner has past antecedents of committing such kind of offences and there are three more FIRs registered against the present petitioner wherein the allegations are of similar nature are there. Further, learned APP Mr. Hardik Soni, upon instructions, points out that deed Page 8 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 of agreement to sale was cancelled on 01.01.2019 which does not bear the signature of the complainant and on the same day four different parcel of lands including the parcel of lands for which the FIR was registered by the complainant where executed in favour of the present petitioner.
13. He further submitted that the petitioner has approached this Court by suppressing the fact that the charges are already framed. He further submitted that during the course of investigation, as some material was found against the present petitioner, the charge-sheet was filed and on the basis of charge-sheet, the Criminal Case was registered and now even, the charges are framed which would indicate that there is substantial material against the present petitioner and therefore, this Court may not exercise the powers under section 482 of the Criminal Procedure Code in favour of the petitioner.
14. Learned APP Mr. Hardik Soni for the respondent - State further submitted that even, it seems that there are some Page 9 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 tampering in the sale deed as well, as the date of issuance of certificate of stamp duty indicates that certificate was issued on 01.01.2019 whereas in one of the sale deed, the date of the sale deed shows as 02.01.2019 which would indicate that even before the sale deed was executed, the certificate of stamp duty was issued and therefore, submits that the defence of the petitioner which has been raised before this Court can be raised before the Trial Court as well and further all the documents relied upon by the petitioner are matter of evidence and once when the charge-sheet is filed against the present petitioner and prima facie, it is believed that there is some role attributable to the petitioner in respect of commission of offence, this Court may not exercise the powers under section 482 of the Criminal Procedure Code and dismiss this petition.
15. I have heard the learned advocates for the parties. I have also perused the documents available on record and have considered the judgments cited by learned advocate for the petitioner and also perused the police report dated 08.08.2022 submitted by the Police Inspector, Harni Police Station, Page 10 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 Vadodara. The same is taken on record.
16. As far as the request of the advocate for the petitioner to grant time for placing on record the order whereby the charge was framed is concerned what is important is the fact that the FIR was originally registered in month of February, 2019 and charge-sheet was filed in the month of April, 2019, all throughout thereafter, it seems that the petitioner did nothing and waited till the charge was framed.
17. The present petition is filed on 18.07.2022 as can be seen from the affidavit accompanying alongwith the petition. When this Court, put a query to learned advocate Mr. Barot on which date the charge was framed, learned advocate Mr. Barot was not able to provide the specific date, however, from the status report downloaded from the official website of Civil Court, Vadodara, learned advocate Mr. Barot submitted that it seems that on 23.01.2020, the charge was framed. When the charge was framed before more than two and half years and matter is listed for evidence, it is expected that at the time of Page 11 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 filing the petition, such disclosure should have been there in the petition. Merely because, after arguing the matter for some time, after knowing that the Court is not favourably considering the petition, if an adjournment is sought only with a view to place on record the documents related to framing of charge and thereby, to amend the petition would only amount to abuse of process of law at the instance of the petitioner as well as it also establishes that the petitioner has deliberately suppressed the fact that the charge was framed on 23.01.2020 and yet the aforesaid fact is not disclosed in the petition.
18. If in such circumstances, a lenient view is taken and the matter is adjourned and the petitioner is permitted to place on record the order whereby the charge was framed and to amend the petition that would not only set a wrong precedent but also would encourage the litigant to file the petition at any stage and thereafter, the aforesaid request was rejected.
19. It is expected that if the charge was framed long back, such averments must be the part of the petition which is filed Page 12 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 after two and half years after the charge was framed.
20. In the instant case, though on the basis of status report from the concerned Court, it was submitted that charge seems to have been framed in the month of January, 2020, which would indicate that the charge was framed long back, despite that in the petition or prayer there is no mention about the same.
21. As far as the merits of the matter are concerned, this Court has considered the FIR and has also taken into consideration the documents relied upon by the petitioner which are sale deeds executed in favour of the petitioner, search taken by the petitioner before executing sale deed and also the deed whereby the agreement to sale was cancelled. As rightly pointed out by the learned APP Mr. Hardik Soni what is important is the date on which the agreement to sale deed was cancelled and the sale deeds were executed. Both documents (in all total five documents, one canceling the agreement to sale and four sale deeds) were executed on the Page 13 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 same day, further cancellation of agreement to sale deed does not bear the signature of the complainant which would indicate that the intention of the accused persons was to cheat the complainant. Intention is something which can be inferred only by leading the evidence, merely by looking at the documents, it would be difficult to infer the intention of the petitioner, more particularly when the same date the agreement to sale deed was cancelled and sale deed were executed in favour of the petitioner.
22. More particularly, when there are three more offences registered against the present petitioner of similar nature, this Court do not deem it appropriate to infer that the petitioner was a bonafide purchaser in respect of the land in question.
23. As far as the judgments cited by the learned advocate Mr. Barot are concerned, by relying upon the judgment in case of Satish Mehra (supra), learned advocate Mr. Barot tried to canvass that powers to quash the proceedings after charges were framed is wider as evidence adduced while submitting Page 14 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 the charge-sheet can be looked into for determining the disclosure of offence against the accused persons. However, alongwith the petition, a number of documents are annexed. Therefore, this Court put a query to the learned advocate Mr. Tejas Barot as to whether all the documents that where relied upon by the learned advocate Mr. Barot were part of the charge-sheet or not? Learned advocate Mr. Barot pointed out that a few documents from the page no. 29 to 38 were forming the part of the charge-sheet and documents whereby the agreement to sale was cancelled on 01.01.2019 was also a part of the charge-sheet, rest of the documents those he is relying upon were not forming part of the charge-sheet.
24. Learned advocate Mr. Barot further clarified that date of execution of sale deed in favour of the petitioner was 02.01.2019 and not 01.01.2019 as stated in the chage-sheet.
25. Now the judgment cited by the learned advocate Mr. Barot in case of Satish Mehra (supra) was required to be considered in light of the aforesaid documents which are on Page 15 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 record. In fact as per the ratio laid down in case of Satish Mehra (supra) as submitted by the learned advocate Mr. Barot that once the charge is framed and as the petitioner would be having at its hands more evidence then at the time of registration of the FIR and that would help the Court in determining the role of the petitioner and to determine as to whether it discloses any prima facie offence or not.
26. In the instant case, the documents relied upon by the petitioner, some of which are in form of statement of the witnesses indicate that the present petitioner despite having knowledge that the agreement to sale in respect of the land in question was executed in favour of the complainant got executed the sale deed in his favour. Further even the date on which the sale deeds were executed in favour of the petitioner and the agreement to sale in favour of the complainant were cancelled also would indicate prima facie involvement of the petitioner in commission of crime and therefore, the judgment relied upon by learned advocate Mr. Barot in case of Satish Page 16 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 Mehra (supra) would not help the petitioner.
27. Second judgment that was relied upon by learned advocate for the petitioner in case of Professor R.K.Vijaysarthy and Another (supra) wherein the petitioner relied upon the paragraphs no. 12, 13 , 21 and 23. Paragraphs no. 12 and 13 of the said judgment speak about ingredients of the criminal breach of trust i.e. section 405 of the Indian Penal Code whereas paragraphs no. 21 and 23 is in respect of dishonest inducement by the accused persons.
28. In the instant case, prima facie, this Court is of the view that considering the past of the petitioner as there are three more FIRs of similar nature of offence are filed against the petitioner as well as filing of the documents, sale deeds executed in favour of the petitioner would indicate that the petitioner had dishonest intention. Further, at the end of the investigation, even the Investigating Officer has found some material against the present petitioner which can be dealt only by leading the evidence. This Court prima facie of the view Page 17 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 that the charge-sheet was filed on the basis of some material against the petitioner whereby it is believed that the petitioner has committed an offence or whereby it is believed that the offence can be said to have been committed by the petitioner.
29. Further the petitioner though was aware about the fact that the charge-sheet was filed in the month of April, 2019 and charges were framed in the month of January, 2020, yet for all the time, throughout till the petition was filed in the year 2022 by suppressing the fact that charge is already framed, the petitioner set idle, he did not prefer any application for quashing the FIR before this Court during the course of investigation or after filing of charge-sheet nor he did file any application for discharge after filing of the charge-sheet before the Trial Court. It is only after the charge is framed, the petitioner preferred this petition and that also without disclosing the fact that charges have been framed long back. Therefore, since the petition has been preferred belatedly, apart from the merits, even otherwise, at this stage, when the trial is already going on, this Court would not exercise its Page 18 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022 R/CR.MA/13257/2022 ORDER DATED: 08/08/2022 powers under section 482 of the Criminal Procedure Code.
30. Further the Hon'ble Supreme Court has in all uncertain terms in case of State Of Haryana And Ors V/s. Ch. Bhajan Lal And Ors reported in 1992 AIR 604 as well as in case of M/s Neeharika Infrastructure Pvt. Ltd. V/s. State of Maharashtra and others has held that under which circumstances, the FIR can be quashed. The present case certainly would not fall within those parameters which the Court would consider to quash the FIR and all consequential proceedings. Therefore, the petition is required to be dismissed and the same is dismissed. No order as to costs.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 19 of 19 Downloaded on : Sat Dec 24 23:05:20 IST 2022