Gujarat High Court
Vinubhai Haribhai Patel (Malavia) vs State Of Gujarat on 7 November, 2023
NEUTRAL CITATION
R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 620 of 2010
With
CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 1 of 2014
In R/SPECIAL CRIMINAL APPLICATION NO. 620 of 2010
With
R/CRIMINAL MISC.APPLICATION NO. 780 of 2010
With
CRIMINAL MISC.APPLICATION (FOR DIRECTION) NO. 1 of 2014
In R/CRIMINAL MISC.APPLICATION NO. 780 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
VINUBHAI HARIBHAI PATEL (MALAVIA)
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance in SCR.A No.620 of 2010:
MR ND NANAVATY, SR. ADVOCATE with MR NM KAPADIA(394) for the Petitioner
Appearance in SCR.A No.780 of 2010
MR RJ GOSWAMI, (1102) for the Petitioner Nos.2 to 4
MR DHAVAL D VYAS(3225) for the Ori. Complainant
MS SHRUTI PATHAK, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 07/11/2023
Page 1 of 27
Downloaded on : Fri Nov 10 20:52:55 IST 2023
NEUTRAL CITATION
R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023
undefined
COMMON ORAL JUDGMENT
[1.0] As common question of law and facts arise and since both these petitions arise from the same FIR, both these petitions and connected applications are heard and disposed of together. For the sake of brevity, Special Criminal Application No.620 of 2010 is taken as a lead matter.
[2.0] Special Criminal Application No.620 of 2010 is filed by the petitioner herein - original accused No.6 under Articles 14, 19, 21, 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") seeking following reliefs:
"[A] YOUR LORDSHIPS be pleased to admit and allow this Application;
[B] YOUR LORDSHIPS be pleased to quash and set aside the complaint being I-CR No.504/2009 registered with Umara Police Station, Surat for the offences punishable under Sections 420, 465, 467, 468, 471, 504, 120-B, 384, 511 and 114 of the Indian Penal Code qua the present petitioner in the interest of justice;
[C] Pending admission, hearing and final disposal of the present petition, YOUR LORDSHIPS be pleased to stay the further proceedings of complaint being I-CR No.504/2009 registered with Umara Police Station, Surat for the offences punishable under Sections 420, 465, 467, 468, 471, 504, 120- B, 384, 511 and 114 of the Indian Penal Code qua the present petitioner in the interest of justice;"Page 2 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023
NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined [2.1] Criminal Misc. Application No.780 of 2010 is filed by the petitioners herein - original accused Nos.1, 3, 4 and 5 under Section 482 of the CrPC seeking similar reliefs but qua original accused No.1, petition being CR.MA No.780 of 2010 is abated vide order dated 27.07.2023 and qua original accused No.2 also, petition being Special Criminal Application No.459 of 2010 is disposed as having become abated vide order dated 07.11.2023.
[3.0] The brief facts of the case are as under:
[3.1] An FIR being I-CR No.504 of 2009 came to be registered with Umra Police Station, Surat for the offences punishable under Sections 420, 465, 467, 468, 471, 504, 120-B, 384, 511 and 114 of the IPC alleging therein that the present petitioner is the holder of power of attorney, which was executed by accused Nos.1 to 5 in favor of the present petitioner i.e. accused No.6. That, accused Nos.1 to 5 (accused Nos.3, 4 and 5 are the petitioners of Criminal Misc. Application No.780 of 2010 and accused No.2 expired during pendency of his petition) and original complainant are the owners of a ancestral property out of which dispute is with regard to property situated at village Panas bearing Revenue Survey No.157 which was partitioned and decreed by way of settlement in the year 1987 vide decree drawn in Special Civil Suit No.339/1985 on the basis of settlement which took place on 21.07.1987 and therefore, the competent Civil Court was pleased to partition the suit property and pursuant to the said decree, the father of complainant and complainant became the absolute owners of the suit property bearing R.S. No.157 situated at village Panas and since then the petitioner (accused No.6) is the owner and in possession of the suit land and in this regard, entry Page 3 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined came to be mutated in the revenue record vide Entry No.2183 dated 01.06.1991. The accused Nos.1 to 5 were not having any right, title or interest in the said property and though pursuant to the said settlement, the property which came in the share of accused Nos.1 to 5, was sold without any authority due to escalation in the land price so as to snatch the suit property bearing R. S. No.157. Further, the accused Nos.1 to 5 forged and prepared one power of attorney in collusion and connivance with accused No.6. Further, it is alleged that accused No.6 is having habit to create false litigation and to put the titles of the property under cloud and by forging documents, he is taking undue advantage from the property by forcibly extorting huge amount. Further, it is alleged that accused No.6 is not having any relation with accused Nos.1 to 5 but due to his influence, accused No.6 filed one false litigation being Special Civil Suit No.377/2000 with a view to usurp the said property without any authorization from the present complainant and in the guise of the said power of attorney, accused persons have created in collusion and connivance civil, criminal and revenue litigation and put the title of the said property under cloud and they have executed one sale deed of the said property and issued the public notice also in daily newspapers and mislead the public and tried to sell out the property of the complainant without any authorization in the guise of bogus power of attorney and forged documents without any authorization though having no any right, title or interest in the suit property and in this regard the impugned complaint came to be filed.
[3.2] The accused Nos.1, 3, 4 and 5 (petitioners of CR.MA No.780 of 2010) and accused No.6 (petitioner of SCR.A No.620 of 2010) Page 4 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined approached this Court for quashing of the impugned complaint. That, initially interim relief was granted but subsequently it was modified vide order dated 14.02.2014 and the Investigating Officer was directed to carry out the investigation but shall not arrest the accused and no charge-sheet be filed without permission of this Court. Upto that extent ad-interim relief was modified vide order dated 14.07.2014 and since then the petitioners are being protected. It is worth to mention that during the pendency of Criminal Misc. Application No.780 of 2010, accused No.1 - Dayarambhai Nemabhai Patel expired and hence, now CR.MA No.780 of 2010 is considered qua petitioner Nos.2, 3 and 4 only i.e. accused Nos.3, 4 and 5 only.
[4.0] Learned Senior Advocate Mr. N.D. Nanavaty assisted by learned advocate Mr. N.M. Kapadia appearing for the petitioners has mainly contended that the impugned complaint is filed with ulterior motive and no offence is disclosed and impugned complaint is sheer abuse of process of law filed with a view to pressurize the petitioners. Further, as the civil suit is filed, with a view to circumvent the civil proceedings, short-cut tactics is being adopted by way of filing the impugned complaint. The dispute is purely a civil dispute which is given criminal color. Further, no any explanation is given to file the impugned complaint belatedly as there is a delay of about 9 years in registering the complaint and no ingredients of the offence punishable under Sections 467, 468 and 471 of the IPC are attracted. Insofar as the petitioner of SCR.A No.620 of 2010 viz. Vinubhai Malavia is concerned, it is Page 5 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined submitted that he is the only power of attorney holder and donor of the power of attorney are accused Nos.1 to 5 i.e. petitioners of CR.MA No.780 of 2010, who have never disputed their signatures on the said document. Hence, question of forging document does not arise as accused No.6 acted as per his authority as a power of attorney holder of accused Nos.1 to 5. The accused have not committed any offence of cheating and no any property is entrusted to the present petitioner.
[4.1] Further, he has relied on the fact that one civil suit is filed and against rejection of interim injunction, Appeal Form Order was filed and interim relief was granted in favor of the present petitioners. Even, in the ULC proceeding it reveals that 1/3 rd share came to the petitioner and said ULC proceedings are also culminated in favor of accused Nos.1 to 5 and hence, they were the owner of 1/3rd share of the suit property and hence, impugned complaint is nothing but abuse of process of law. Present petitioner i.e. accused No.6 is not having any past antecedent. Even if it is believed that there are antecedents, same is not having any relevance in connection with the present quashing petition under Section 482 of the CrPC. In this regard, he has relied on an oral order passed by the coordinate Bench of this Court in Criminal Misc. Application No.17096/2015.
[4.2] Further, he has argued that merely because High Court has permitted investigation to continue and it is completed and Investigating Officer is about to file the charge-sheet is neither a Page 6 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined ground to dismiss present petitions nor to relegate the present petitioners to file discharge application before the learned trial Court. In support of his above submissions, learned Senior Counsel has relied on the decisions of Hon'ble Apex Court in the case of Abhishek vs. State of Madhya Pradesh reported in 2023 SCC OnLine SC 1083 and Salib alias Shalu alias Salim vs. State of U.P. and Others reported in 2023 SCC OnLine SC 947 and argued that the Court owes a duty to look into the FIR with care and a little more closely when proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance.
[4.3] Further, it is submitted that no any ingredients of the offence of cheating and extortion punishable under Sections 420 and 384 of the IPC are made out in absence of offence having been completed or any money being extorted. In support of his submissions as regards the contention that no offence of extortion is made out in the present case, learned Senior Advocate has relied on the decision of the Hon'ble Apex Court in the case of Isaac Isanga Musumba and Others vs. State of Maharashtra and Others reported in (2014)15 SCC 357 In the present case, to circumvent the civil proceedings, impugned complaint is filed and hence, learned Senior Counsel has requested to allow the present petitions.
[5.0] Per contra, learned APP Ms. Shruti Pathak has vehemently opposed the present petitions and submitted that present Page 7 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined petitions are filed with ulterior motive to scuttle the proceedings and fair investigation of the impugned complaint. She has stated that it is an admitted fact on the record that the original complainant and accused Nos.1 to 5 are members of one family and their ancestral joint ownership properties which belonged to one Chimanhai Nemabhai Patel. In respect of the said property, accused No.5, who happens to be the cousin of the complainant, had filed a Special Civil Suit No.339/1985 in the Civil Court, Surat and settlement took place between the complainant and accused Nos.1 to 5 and one compromise purshis came to be filed before the Civil Court and the learned Civil Court was pleased to pass the decree on 21.07.1987 and pursuant to the said settlement and decree, the disputed land being R. S. No.157, which is subject matter of present case, and R. S. No.191/3 situated at Katargam and City Survey No.195 and other lands came to be divided. The accused Nos.1 to 5 have already sold out their properties which came into their respective shares and the complainant has mutated his name qua the respective property which came to his share in the year 1991.
[5.1] Thereafter, qua the suit land bearing Survey No.157, one Agreement to Sell came to be executed by the present complainant in the year 1994 in favor of one Murli Fatandas Savlani and others but no sale deed came to be executed however, in the year 2000, accused Nos.1 to 5 filed one suit being Special Civil Suit No.377 of 2000 before the Civil Court creating dispute that they had 1/3rd share in the suit property and Page 8 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined executed the power of attorney in favor of accused No.6 (petitioner of SCR.A No.620 of 2010) without any authority by getting the consideration and tried to put the title of the suit property under cloud and in connivance and collusion of the co- accused, they have started to extort money and to snatch the property from the complainant. Nonetheless, the accused Nos.1 to 5 and 6 have also threatened the complainant and stated that they have invested 1.50 Crores and hence, the complainant should either to part the amount of 1.5 Crores or to make the accused No.6 a partner in the suit property. Hence, the complaint is registered and during the investigation the material is collected which suggests the involvement of the present petitioner. The bogus power of attorney was executed and given to accused No.6 by accused Nos.1 to 5 in connection of R.S. No.157 for administration of the suit land and false claim of 1/3rd share in the property has been raised. Hence, the impugned complaint is filed and prima facie it appears that in the guise of the said power of attorney, without any authority one sale deed also came to be executed qua the suit land in favor one Dimple Texo Filament in collusion and connivance of accused persons.
[5.2] Further, she has submitted that petitioner - accused No.6 is having criminal past antecedents and total 8 complaints of similar nature are registered with different police stations out of which 6 complaints are quashed by way of consent quashing and thus, present applicant is in habit of creating such litigation to coerce the individuals to enter into compromise and then to file consent Page 9 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined quashing petitions. Further, out of 8 complaint, 2 complaints are still going on. In view of the above, she has requested to dismiss Special Criminal Application No.620 of 2010 and Criminal Misc. Application No.780 of 2010 and allow Criminal Misc. Application (For Direction) No.1 of 2014 in Criminal Misc. Application No.780 of 2010.
[5.3] Further, the offence is committed and charge-sheet is prepared but due to interim protection granted by the coordinate Bench, the charge-sheet could not be filed and hence, learned APP has requested to allow Criminal Misc. Application (For Direction) No.1 of 2014 in Criminal Misc. Application No.780 of 2010 and grant permission to file the charge-sheet.
[6.0] Learned advocate for the original complainant has also vehemently opposed the present petitions by adopting the submissions made by the learned APP. He has further argued that petitioner - accused No.6 is a kingpin and is habitual of putting the title of the properties under the cloud so as to snatch the properties and to extort money. Herein, though the competent Court has passed decree in the year 1987, subsequent frivolous litigation is filed. Nonetheless, under the guise of said litigation false right and claims are created and tried to claim 1/3rd share contrary to the decree of competent Civil Court, which is passed in the year 1987. Even, subsequently, ex parte interim relief was granted by this Court in favor of the accused persons in Appeal From Order proceeding filed in connection with Special Civil Suit No.377/2000, which came to be assailed Page 10 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined before the Hon'ble Apex Court and as the matter came to be remanded by the Apex Court, this Court in Appeal From Order No.100/2002, filed by accused persons, has been pleased to dismiss the same vide judgment dated 11.09.2014 wherein it is clearly observed about the partition and consent decree and equal share in the ancestral property. Insofar as past antecedent of the applicant is concerned, it is relevant criteria to consider the said fact for which learned advocate for the original complainant has relied upon the decision of the Hon'ble Apex Court in the case of Parbatbhai Aahir and Ors. vs. State of Gujarat and Ors. reported in (2017)9 SCC 641. Further, it is the modus operandi of the present petitioner that for the purpose of grabbing the valuable parcel of land for which 8 offences of similar nature are registered and subsequently, 6 complaints have been quashed on the ground of settlement. In view of above, he has requested to dismiss the present petitions only considering the tendency of the petitioners.
[7.0] Heard the learned Counsel appearing for the respective parties at length and given thoughtful consideration to the arguments canvassed on behalf of the respective parties.
[8.0] At the outset it is worth to mention that in connection with the impugned FIR the investigation is over and charge-sheet is ready to be filed but as interim relief is granted by the coordinate Bench vide order dated 14.02.2014, charge-sheet is not filed and therefore, application for direction being Criminal Misc. Application No.1 of 2014 in Criminal Misc. Application No.780 of Page 11 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined 2010 is filed by the State.
[8.1] Going through the complaint and allegations made against the accused persons, it appears that the suit property is ancestral property and it came into share of the father of the complainant, pursuant to the decree passed in Special Civil Suit No.339 of 1985 and in terms of said consent decree, mutation entry came to be made in the year 1991. Thus, the present complainant become the absolute owner of the suit property.
[8.2] Without any right, title or interest and authority, accused Nos.1 to 5 (petitioners of CR.MA No.780 of 2010) have tried to snatch the said property and put the title of the suit property under cloud in connivance and in collusion of accused No.6 (petitioner of SCR.A No.620 of 2010) and hence, they have executed the power of attorney. Also, the bogus power of attorney for administration of the suit property came to executed in favor of accused No.6 (petitioner of SCR.A No.620 of 2010) without any authority and under the guise of the said power of attorney, Special Civil Suit No.377/2000 was filed and interim injunction application was filed which came to be dismissed and A.O. was preferred. Subsequently, the said order of interim injunction was assailed by way of Appeal From Order No.100 of 2002 and the coordinate Bench of this Court vacated the earlier interim relief as earlier partition took place and suit property was in possession of the present complainant. Thus, prima facie, it appears that the civil suit was filed by the accused Page 12 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined persons with a view to circumvent the original decree passed way back in the year 1987 and property was in possession of respondent No.2 herein - original complainant.
[8.3] Further, going through the record, it appears that petitioners of CR.MA No.780 of 2010 i.e. accused Nos.1 to 5 have also sold out the property without any right, title or interest to one Dimple Texo Filament. Nonetheless, subsequently, they have executed the power of attorney on 01.11.2001 though sale deed was executed on 23.02.2000. Considering the aforesaid facts, prima facie involvement of petitioners in the offence of forgery and cheating in connivance and collusion with the accused persons is found. Nonetheless, accused Nos.1 to 5 in connivance and in collusion of accused No.6 tried to grab the suit property pursuant to the said settlement and thus, the accused persons have camouflaged decree of the competent Court and tried to create their right over final plot of Survey No.157. It is needless to say that only civil Court is competent to decide the share and to adjudicate about the civil rights which was already decided in the year 1987.
[8.4] Further, it reveals that the accused No.6 (petitioner of SCR.A No.620 of 2010) is having criminal past antecedents and as many as eight complaints were registered against him. It appears that the petitioner (accused No.6) is having habit of creating false litigation so as to put under the cloud the title of the property and to obtain share in the property or to extort the money. That, out of 8 complaints, 6 complaints have been quashed by the Page 13 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined coordinate Bench by consent. The details of said complaints and corresponding petitions and their status are as under:
FIR No. & Date Police Station Status of FIR Date of disposal of quashing I-CR No.9/2009 DCB Quashed by this 27.08.2012
07.05.2009 Court in CR.MA No.12522 of 2012 I-CR No.10/2009 DCB Quashed 22.05.2009 I-CR Umra Quashed by this 02.11.2012 No.475/2009 Court in CR.MA 11.12.2009 No.15463 of 2012 I-476/2009 Umra (IO-SOG) Quashed by this 07.05.2013 11.12.2009 Court in CR.MA No.7196 of 2013 I-257/2009 Puna Directions by 22.12.2009 (IO-Khatodra) Supreme Court against complainant to file cross FIR I-504/2009 Umra (IO-SOG) Present petition 31.12.2009 I-CR No.3/2010 Adajan Quashed by this 05.04.2013 03.01.2010 (IO-Rander) Court in CR.MA No.1540 of 2013 I-CR No.64/2011 Chok Quashed by this 24.04.2011 (IO - DCB) Court in SCR.A No.3384 of 2013 At this stage, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Parbatbhai Aahir and Ors. wherein the Hon'ble Supreme Court in paragraph 16 has held as under:
"16. Bearing in mind the above principles which have been Page 14 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined laid down in the decisions of this Court, we are of the view that the High Court was justified in declining to entertain the application for quashing the First Information Report in the exercise of its inherent jurisdiction. The High Court has adverted to two significant circumstances. Each of them has a bearing on whether the exercise of the jurisdiction under Section 482 to quash the FIR would subserve or secure the ends of justice or prevent an abuse of the process of the court. The first is that the appellants were absconding and warrants had been issued against them under Section 70 of the Code of Criminal Procedure, 1973. The second is that the appellants have criminal antecedents, reflected in the chart which has been extracted in the earlier part of this judgment. The High Court adverted to the modus operandi which had been followed by the appellants in grabbing valuable parcels of land and noted that in the past as well, they were alleged to have been connected with such nefarious activities by opening bogus bank accounts. It was in this view of the matter that the High Court observed that in a case involving extortion, forgery and conspiracy where all the appellants were acting as a team, it was not in the interest of society to quash the FIR on the ground that a settlement had been arrived at with the complainant. We agree with the view of the High Court. The present case, as the allegations in the FIR would demonstrate, is not merely one involving a private dispute over a land transaction between two contesting parties. The case involves allegations of extortion, forgery and fabrication of documents, utilization of fabricated documents to effectuate transfers of title before the registering authorities and the deprivation of the complainant of his interest in land on the basis of a fabricated power of attorney. If the allegations in the FIR are construed as they stand, it is evident that they implicate serious offences having a bearing on a vital societal interest in securing the probity of titles to or interest in land. Such offences cannot be construed to be merely private or civil disputes but implicate the societal interest in prosecuting serious crime. In these circumstances, the High Court was eminently justified in declining to quash the FIR which had been registered under Sections 384, 467, 468, 471, 120-B and 506(2) of the Penal Code.Page 15 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023
NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined In view of above, past antecedents of accused No.6 deserve to be considered and argument canvassed by learned Senior Advocate Mr. Nanavaty is not sustainable.
[8.5] Insofar as allegation of the offence of extortion is concerned, going through the complaint as well as the investigation papers, it appears that from the complainant and a witness in whose favor Agreement to Sell was executed i.e. Murli Fatandas Savlani, the accused No.6 threatened him to vacate the property and demanded Rs.1.50 Crores and accused Nos.1 to 5 have without any authorization sold out 1/3rd share by way of registered sale deed and therefore, considering the aforesaid facts, prima facie, the ingredients of the offence punishable under Sections 384 and 506(2) of the IPC are made out as the accused No.6 has put the complainant in fear and dishonestly tried to snatch the property and tried to extort the money.
[8.6] So far as reliance placed on the case of Isaac Isanga Musumba and Others is concerned, it is needless to say that criminal case is required to be decided on its own merits. In this regard, it will be worth to refer to the decision of the Hon'ble Apex Court in the case of Parasa Raja Manikyala Rao And Anr vs State Of A.P reported in AIR 2004 SC 132, wherein it has been observed and held as under:
"...Each case, more particularly a criminal case depends on its own facts and a close similarity between one case and another is not enough to warrant like treatment because a significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one Page 16 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
[8.7] Herein, as discussed in earlier part of the judgment, investigation is conducted and sufficient material is collected which indicates prima facie involvement of the present accused persons. Merely due to interim relief granted by the coordinate Bench, charge-sheet is not filed. In view of the above, authorities viz. (1) Abhishek (Supra); (2) Salib alias Shalu alias Salim (Supra) and (3) Isaac Isanga Musumba and Others (Supra) relied upon by the learned Counsel for the petitioners would not be of any help to the petitioners in view of the law laid down by the Hon'ble Apex Court in the case of Iqbal @ Bala and Others vs. State of Uttar Pradesh and Others reported in (2023) 8 SCC 734 wherein the Hon'ble Apex Court in paragraph 7 has observed as under:
"7. It is relevant to note that the victim has not furnished any information in regard to the date and time of the commission of the alleged offence. At the same time, we also take notice of the fact that the investigation has been completed and charge sheet is ready to be filed. Although the allegations levelled in the FIR do not inspire any confidence more particularly in the absence of any specific date, time, etc. of the alleged offences, yet we are of the view that the appellants should prefer discharge application before the Trial Court under Section 227 of the Code of Criminal Procedure (CrPC). We say so because even according to the State, the investigation is over and charge sheet is ready to be filed before the competent court. In such circumstances, the Trial Court should be allowed to look into the materials which the investigation officer might have collected forming part of the charge sheet. If any such discharge application is filed, the Trial Court shall Page 17 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined look into the materials and take a call whether any case for discharge is made out or not."
[9.0] Earlier, based on 1976 existing possession of land, the proceeding under the ULC Act came to be initiated based on record as on date 17.08.1976 and based on revenue record existing as on 1976 but subsequently the civil proceedings came to be filed and settlement took place and in this regard, as earlier scheme was prescribed in the year 1986 and draft scheme was floated and then government issued notification on 19.12.1987 and then in the year 1991, based on the settlement arrived at between the parties and decree of the competent Court, the name of the father of the complainant came to be entered in the revenue record and then subsequently amendment is also carried out in this regard and re-distribution statement was prepared in the year 1989-90 and in this regard, necessary amendment was carried out under Rules 17 and 29 of the Town Planning and Urban Development Act, 1954 wherein name of father of the complainant Chhaganbhai Nemabhai Patel is mentioned and said document is produced at Annexure-R9. In view of the above, by virtue of ULC proceedings, present accused Nos.1 to 5 are the owners and having an interest and right, the said argument canvassed on behalf of the learned Senior Counsel for the petitioners is not acceptable as it was erstwhile proceeding prior to partition proceeding took place and the compromise decree passed by the competent Civil Court.
[9.1] After the judgment and decree passed by this Court, Page 18 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined subsequent civil suit came to be filed and injunction was refused then the original plaintiff approached this Court and status quo / ad-interim relief was granted. The said order came to be assailed by the original defendants by way of Special Leave Petition and as directed by the Hon'ble Apex Court, the Appeal From Order came to be heard finally on merits and ultimately it was dismissed. Hence, the argument on behalf of the petitioners that interim relief was in favor of petitioners is also not sustainable. So far as argument canvassed by the learned Counsel for the petitioner that to circumvent the civil proceedings, criminal complaint is filed as a shield and to be saved from the criminal proceedings, the suit was filed in advance and that too by present accused persons. Hence, the said argument is also not sustainable in view of the fact that respondent No.2 herein - original complainant is the absolute owner of the suit property since 1987 and mutation entry in that regard is also made in his favor in the year 1991.
[10.0] In the present case, complaint is filed for the offences under sections 420, 465, 467, 468, 471, 504, 120-B, 384 and 114 alongwith section 511 of the IPC. Section 511 of the IPC provides punishment for attempting to commit offences. It is worth to mention that under section 463 of the IPC, the intention is essential. The intention is the essence of the offence of forgery. To constitute it, some damage or injury must be intended to be caused by the false document to an individual or to the public. Herein, present accused Nos.1 to 5 without any authority have Page 19 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined executed the documents without any title and put under the cloud the title of the property of the present complainant though they were fully aware that the competent Court has passed decree in favor of respondent No.2 - original complainant. In the aforesaid background, as accused Nos.1 to 5 were fully aware of the fact that they are not the owners and title is not in their favor still however, they have acted in connivance and in collusion with accused No.6 by hatching conspiracy with a view to grab the land and they have acted dishonestly and fraudulently and hence, prima facie, offences under Sections 465 and 467 of the IPC are made out. Nonetheless, the execution of the document which is a valuable security under section 467 of the IPC dishonestly by committing fraud and the said document was executed without any legal right, title or interest. In view of the above, intention of accused persons clearly culls out from the allegations leveled against them in the impugned complaint.
[11.0] In order to establish the offence of cheating under Section 420 of the IPC, one of the most important ingredients is making of a false representation. It is not enough to show that a false representation was made to establish a case under Section 420 of IPC for cheating but, it must be shown that the knew since inception the representation to be false and that it was made with the intent to deceive. In the present case, sufficient material is on record to come to a prima facie conclusion that false representation was made despite knowing since inception that such representation was made to deceive the complainant.
Page 20 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined [11.1] Insofar as offence of conspiracy punishable under Section 120(B) of the IPC is concerned, the first ingredient of criminal conspiracy is agreement between two or more persons. This agreement is the crux of the offence and can be explicit or implicit, written or oral. The second essential component is the intention to commit an illegal act or a legal act by illegal means. The intent should directly related to the outcome that the conspirators plan to achieve. It is very difficult to collect any direct evidence of conspiracy. Further, it is pertinent to note that, to establish criminal conspiracy charges under section 120 of the IPC, there must be an agreement, either expressed or implied. And for that, no proof of direct meeting or communication is needed. There must be active cooperation. In other words, joint evil intent is mandatory. When any act is done even though it is lawful but done by illegal means, it constitutes criminal conspiracy. The essential ingredients of criminal conspiracy are:
(i) An agreement between two or more persons; (ii) The agreement must be related to doing or causing to be done either
(a) an illegal act and (b) an act that is not illegal in itself but is done by illegal means; (iii) The agreement may be expressed or implied or partly expressed and partly implied; (iv) As soon as the agreement is made, the conspiracy arises, and the offence is committed and (v) the same offence is continued to be committed so long as the combination persists. From the material collected or the evidence adduced on record, inference of conspiracy is required to be drawn. Herein, the Investigating Officer has collected voluminous documentary evidences which Page 21 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined prima facie substantiates the offence of conspiracy having been committed by the accused persons.
[12.0] Considering overall facts and attending circumstances more particularly peculiar facts of the present case, when investigation is completed and charge-sheet is ready to be filed, it appears from the investigation papers that the present petitioners have modus operandi which has been followed as noted above and therefore, merely because earlier proceedings are quashed on the basis of settlement, same is not a ground to discard the proclivity of accused persons present petitions. At this stage, it will be profitable to refer to the decision of the Hon'ble Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra reported in 2021 SCC OnLine SC 315, wherein it is observed and paragraph 57 of which reads as under:
"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing Page 22 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;..."
Herein, it emerges that prima facie cognizable offence is committed.
[12.1] So far as the allegation of extortion is concerned, present case is involving the allegation of extortion, forgery and conspiracy and where accused persons have acted as a team with a view to extort money and create forged claim over the property though already the competent Court has been pleased to pass the decree in the year 1987, prima facie this Court is of considered view that the offence is made out against accused persons which is vital and against societal interest and considering the secured probity of title and interest of the complainant in the valuable land, the said offence cannot be Page 23 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined construed to be merely a private or civil dispute. The accused persons have acted in connivance and in collusion of each other by using tricks and dishonestly filed a litigation and raised claims for making personal gain and to cause loss to the complainant which is nothing but fraud and forgery. In these circumstances, relying on the law laid down by the Apex Court in the case of Neeharika Infrastructure Pvt. Ltd. (Supra), while examining the complaint, this is not a case to scuttle the criminal proceedings when at the initial stage prima facie offence is made out and complaint does not fall within the purview of exception and rarity than the original rules. Ordinarily, the Courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the Court is, however, recognized to secure the ends of justice or prevent the above of the process by Section 482 of the CrPC.
[12.2] So far as the delay in lodging of the complaint is concerned, learned Senior Counsel as well as the affidavit in rejoinder filed on behalf of the petitioners clearly state that a Notification was been issued by the State Government on 23.07.2003 wherein all police authorities of the State were directed not to register the complaint pertaining to civil disputes and due to this standing order, the Police Commissioner, Surat gave instruction to its subordinate Officers not to take any action on the complaint and due to this the delay has occurred though present complainant tried get register his complaint and after Page 24 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined thorough investigation the complaint came to be registered. Considering the aforesaid fact, there is no deliberate delay on the part of the complainant. Even, in light of the law laid down in the case of Mohammed Wajid vs. State of U.P. rendered in Criminal Appeal No.2340 of 2023, mere delay is not a ground to quash the complaint and antecedents cannot be sole criteria to dismiss quashing. Herein, this Court has closely examined the allegations made against the accused persons in the complaint and prima facie offence is made out. The Hon'ble Apex Court in the case of Manendra Prasad Tiwari vs. Amit Kumar Tiwari reported in 2022 SCC OnLine SC 1057 has clearly held that delay in registration of FIR is not a ground to quash the same. As stated above, case is squarely based on documentary evidences and during the investigation, sufficient material has been collected and involvement of present accused persons is found. In view of the above, prima facie it appears that the accused persons - petitioners herein are involved in the present offence.
[13.0] Further, it is worth to mention that this Court has not taken the criminal past antecedents of the petitioner as a sole criteria to dismiss the present petition. Considering the allegations leveled in the complaint, prima facie offence is made out and allegation leveled against the present petitioners qua proclivity to grab the land by creating forged documents or bogus transactions and to extort the money and to substantiate the aforesaid allegation the complainant has relied on the past antecedents of accused No.6 and said fact substantiates the Page 25 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined allegation about proclivity and clearly reveals from that without any remorse present petitioner - accused No.6 has done such act and after getting involved in such illegal activity, knowing fate or outcome of proposed litigation, he has continued to indulge in such illegal activity and consent quashing proceeding has already boosted his endeavor in indulging in such illegal activities. This Court cannot shut eyes and ignore the aforesaid fact at this stage as specific allegation qua accused No.6 is leveled in this regard which are substantiated by aforesaid fact.
[14.0] In wake of aforesaid discussion, present Special Criminal Application No.620 of 2010 as well as Criminal Misc. Application No.780 of 2010 stand dismissed. Consequently, Criminal Misc. Application No.1 of 2014 in Criminal Misc. application No.780 of 2010, whereby the State Government has sought prayer to permit the prosecuting agency to file charge- sheet against the accused persons is hereby allowed in view of the decision of the Hon'ble Supreme Court in the case of Siddharth Mukesh Bhandari vs. State of Gujarat & Anr. reported in 2023 (4) GLR 2661 following the decision in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (Supra).
[15.0] At this stage, learned Advocate Mr. Kapadia for the petitioners requests to continue the interim protection granted by the coordinate Bench, which has been operating in favor of the accused persons since long, for a period of three weeks so as Page 26 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023 NEUTRAL CITATION R/SCR.A/620/2010 JUDGMENT DATED: 07/11/2023 undefined to enable the petitioners to assail the present judgment before the Hon'ble Supreme Court.
[15.1] In view of the fact that initially interim protection was granted in favor of the present petitioners - accused persons and further modified since 14.02.2014, this Court deems it just and proper to continue the said protection in favor of the petitioners for a period of three weeks from today meaning thereby the petitioners shall not be arrested for a period of three weeks however, the prosecuting agency shall be at liberty to file the charge-sheet without any delay.
[16.0] Rule is hereby discharged insofar as Special Criminal Application No.620 of 2010 and Criminal Misc. Application No.780 of 2010 are concerned whereas Rule is made absolute qua Criminal Misc. Application No.1 of 2014 in Criminal Misc. application No.780 of 2010.
(HASMUKH D. SUTHAR, J.) Ajay Page 27 of 27 Downloaded on : Fri Nov 10 20:52:55 IST 2023