Gujarat High Court
Viral Kiranbhai Shah vs State Of Gujarat on 3 January, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/11992/2018 ORDER DATED: 03/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11992 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 11883 of 2018
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VIRAL KIRANBHAI SHAH
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR UMANG R VYAS(5595) for the Applicant(s) No. 1
MR.DHAWAN JAYSWAL APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 03/01/2023
COMMON ORAL ORDER
1. By way of the present petitions under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the Petitioners have prayed for quashing and setting aside the impugned FIR bearing I-C.R.No.188 of 2018 registered with Sola High Court Police Station, Ahmedabad for the offence punishable under Sections 120(B), 405, 418, 466, 467, 468, 471 of the Indian Penal Code as well as other consequential proceedings arising out of the aforesaid FIR qua the Page 1 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 petitioners.
2. Heard learned Senior Counsel Mr.Nirupam D. Nanavaty, Senior Counsel Mr.Prakash Jani, Advocate Mr.Yogesh N.Ravani, Advocate Mr.Hriday Buch, Advocate Mr.Umang R.Vyas, Advocate Mr.Brijesh K.Ramanaji for the petitioners and Mr.Dhawan Jayswal, learned APP, for the respondent State.
3. Senior Advocate Mr.Nanavaty submits that the petitioners are practicing Advocate of this Hon'ble Court and were panel Advocate of the Central Government are challenging the FIR being C.R.No.I- 188 of 2018 dated 23.06.2018 registered with Sola High Court, Ahmedabad for the offence punishable under Sections 120(B), 405, 418, 466, 467, 468, 471 of the Indian Penal Code.
3.1 Senior Advocate Mr.Nanavaty submits that the complainant, who has alleged that Advocate Ankit S.Shah and Advocate Viral K.Shah, both Page 2 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 Central Government Standing Counsel in connivance with each other have forged the signature of Secretary of NCMEI on the Vakalatnama and had tendered the same before the Hon'ble High Court and thereby committed alleged offences as narrated in the FIR.
3.2 Senior Advocate Mr.Nanavaty submits that essential ingredients of the alleged offence are not made out in the FIR and submitted that the complainant had filed one writ petition before this Court and had challenged the 'Status' of a school in which he was initially working as a Teacher. In the said writ petition being Special Civil Application No.20948 of 2016, in all there were four respondents. The said writ petition was presented on 08.12.2016, which was registered on 15.12.2016 and on different dates various orders were recorded. Senior Counsel Mr.Nanavaty further submitted that during pendency of the matter, the FIR came to be registered against the Advocate on 23.06.2018, while the Special Civil Application No.20948 of 2016 with Civil Application Page 3 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 No.2 of 2018 came to be disposed of on 16.10.2018 and in that matter, the present petitioners had represented respondent No.1.
3.3 Senior Advocate Mr.Nanavaty submits that the complainant has falsely implicated the petitioners in the alleged FIR since no offence has been committed. The ingredients of Section 405 of the Indian Penal Code are not made out in the alleged FIR since the entire body of the FIR does not reflect any allegation about entrustment, even if the case of complainant who is present respondent No.2 is to be considered then the authority i.e. NCMEI has not suffered any wrongful loss, and therefore, there would not be any offence as alleged under Section 418 of the Indian Penal Code.
3.4 Senior Advocate Mr.Nanvaty submits that the Vakaltnama on which the signature is purported to have been forged is not a valuable security and no legal right is transferred or extended with the help of Vakalatnama. He further submits that the Page 4 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 documents would not fall within the definition of 'valuable security' as requiring legal right to be created, extended, transferred etc., whereas Vakalatnama will only authorize Advocate to represent the case and will not create any absolute legal right which can be termed as valuable security. Thus, no offence under Section 467 of the Indian Penal Code is made out.
3.5 Senior Advocate Mr.Nanavaty submits that for the offence to be considered as forgery of a documents, the ingredients under Section 463 of the IPC are required to be made out, and, for the purpose of committing forgery there has to be a 'false document' as defined under Section 464 of the Indian Penal Code and person is said to make a false document when alleged act is with dishonest and fraudulent intention and in absence of the same, document though created, cannot be termed as false document more particularly as 'criminal act of creating false document' and under the definition of 'dishonesty', wrongful gain and wrongful loss are the Page 5 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 necessary ingredients. Thus, no offence under Sections 467, 468 & 471 of the Indian Penal Code are made out.
3.6 Senior Advocate Mr.Nanavaty submits that the Vakaltnama filed by the applicants on behalf of the authority i.e. NCMEI while the FIR is filed on the basis of assumption, while the author granting the Vakaltnama is not making any complaint, and the complaint would be barred in view of the provision of Section 195 of the Criminal Procedure Code.
3.7 Referring to Rule 432 of the Gujarat High Court Rules, 1993, Mr.Nanavaty submits that the Rules permit an Advocate on record to instruct another to appear on his behalf where an advocate appointed in any of the proceedings is prevented by reasonable cause from appearing and conducting the proceedings at any hearing. He further submits that by way of Notification issued by the Ministry of Law & Justice Department of Legal Affairs, both the Page 6 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 Advocates Mr.Viral Shah and Mr.Ankit Shah were appointed as Standing Counsels of the Central Government. Hence, in a case where instruction is given by one panel Advocate to another, the same act would be protected under The Gujarat High Court Rules, 1993.
4. The complaint dated 23.06.2018 registered before the Sola High Court Police Station, Ahmedabad City is with the facts and allegations that the complainant at the time of the complaint, was unemployed and earlier he was a teacher in St.Xavier's Loyola School, Naranpura. He has alleged that he was wrongly suspended from the school in the year 2013, and therefore, he had filed appeal being Appeal No.146 of 2016 before the Tribunal, where the order was passed in his favour in December, 2015, against that, St. Xavier's Loyola School, Naranpura, Ahmedabad had preferred an Appeal as SCA No.1069 of 2016 and against that, LPA No.1237 of 2016 was moved, whereby the matter was remanded back to the Education Page 7 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 Tribunal.
4.1 The complainant further states that since he wanted to inquire whether St. Xavier's Loyola School has Minority status he had procured necessary documents from the Charity Commissioner. He further states that in the matter filed by him as Special Civil Application No.20948 of 2016, for National Commission Minority Education Institution (NCMEI), Advocate Ankit Shah was appointed, who had filed Vakalatnama on 05.06.2017, and on that Vakalatnama produced at Gujarat High Court, Dy. Secretary Sandip Jain had put his signature and seal for NCMEI. It is alleged that inspite of knowing the fact that the matter was listed before a particular Bench, Vakaltnama was produced in the said Court. The complainant further stated that 'Not Before Me' note was placed, thus in Special Civil Application No.20948 of 2016, Advocate Mr.Viral K. Shah, on 06.11.2017 appeared on behalf of NCMEI in place of Mr.Ankit S. Shah, and thereafter on 16.11.2017 had produced his Vakaltnama and on the said, 'No Page 8 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 Objection' endorsement was placed by Advocate Mr. Ankit S. Shah on 15.11.2017.
4.2 It is alleged by the complainant that on the Vakaltnama dated 16.11.2017, there was signature of the authority of NCMEI which was similar to the signature of Sandip Jain, Dy. Secretary placed on Vakaltnama in favour of Ankit Shah dated 05.06.2017. The complainant alleged that Vakalatnama which was produced by Advocate Viral K. Shah was found doubtful by him since below the signature, the expression of words 'Secretary, National Commission for Minority Education', respondent No.1 was handwritten and thus, he applied for the certified copy of both the Vakalatnama, and thereafter he applied before the NCMEI under the Right to Information Act and as per the reply of Secretary, Smt. Saroj Punhani correspondence No.10-17/2017-NCMEI/1707 dated __/04/2018 correspondence sent to him on 06.04.2018 by email, and letter was also received by post, wherein the complainant states that Saroj Punhani Page 9 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 has clarified that on behalf of Commission, Dy. Secretary, Shri Sandip Jain with the signature and seal dated 30.05.2017 has appointed Ankit Shah as an Advocate for NCMEI, and Advocate Viral Shah was never appointed by them, and no such Vakaltnama was given in his favour and that she had not put her signature on Vakaltnama and any such signature is false. Thus, according to the complainant when no such authority had been given to Advocate Viral Shah and when appointment was only of Advocate Ankit Shah by NCMEI, and when the authority does not affirm the signature, both the Advocates with an ill intention to cheat and to defraud has produced the Vakaltnama dated 16.10.2017 with the forged signature and though both Advocates Ankit Shah and Viral Shah have been appointed as Standing Counsel of Hon'ble Gujarat High Court by Central Government, they have committed a serious offence, and inspite of the fact that no oral/written communication was with Ankit Shah by NCMEI, it is alleged that Advocate Ankit Shah on the Vakaltnama dated 16.11.2017 had put Page 10 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 up his endorsement by putting NOC dated 15.11.2017 and has committed criminal breach of trust with NCMEI.
4.3 The complainant has relied on certain documents of his RTI application and sample signature of the Secretary of NCMEI. The Notification dated 21.08.2017 appointing Smt. Saroj Punhani as Secretary of NCMEI along with charge assumption report dated 14.07.2017.
5. Mr.Dhawan Jayswal, learned APP submits that as per the practice adopting the Rules of The Gujarat High Court, when appointed Advocate is representing the matter in the Court as a matter of practice, convenience and respect to the authority and commitment to the profession when because of same reason the Advocate on record cannot appear before the concerned Court would instruct another Advocate to appear on his behalf and conduct the proceedings at any hearing and thus, submitted that adherence to Rule 432 is mandated, and therefore, any act of instructing other Advocate to represent him would Page 11 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 not be any professional misconduct nor would be against professional ethics. Signature authorising an Advocate to represent the matter is transaction between the client and Advocate and he submitted that it is a work of entrustment and thus, would be governed by the provisions under Section 126 of the Indian Evidence Act, 1872, but however submits that if at all any fact is brought to the notice of the police of any forgery or cheating, then FIR is required to be filed and thus, urged that the FIR should not be quashed at the initial stage.
6. The Notification being F.No.36(8)/2015-Judt. issued by the Ministry of Law & Justice, Department of Legal Affairs, Judicial Section by an order dated 06.04.2015 in super-session of all earlier orders relating to Senior Panel Counsels and Central Government Counsels in High Court of Gujarat at Ahmedabad and Senior Central Government Standing Counsel in Central Administrative Tribunal, Ahmedabad Bench, the President was pleased to engage 31 Advocates for conducting the Central Page 12 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 Government litigations before the High Court of Ahmedabad with immediate effect for a period of three years or until further orders and had appointed about five advocates as Additional Central Government Standing Counsel for Central Administrative Tribunal, Ahmedabad Bench. The name of the present petitioners Mr.Ankit Shah and Mr.Viral Shah reflect at Serial No.1 & 5 respectively. By order dated 06.04.2015, the petitioners were appointed on panel for representing the Central Government litigations in the Central Administrative Tribunal, Ahmedabad. As per the complaint, Advocate Ankit Shah was authorised by way of Vakaltnama to represent the matter in Special Civil Application No.20948 of 2016 on behalf of National Commission for Minority Education. The complaint suggests that the matter came up before a Court where panel Advocate Mr.Ankit S.Shah could not appear though was authorised by way of Vakaltnama, the matter was thereafter transferred as was under the note 'Not before this Court' and it is alleged that without instruction on 06.11.2017, Advocate Viral K. Page 13 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 Shah appeared for NCMEI. On 16.11.2017, Advocate Ankit Shah had put his endorsement as NOC.
7. Senior Advocate Mr.Nanavaty had submitted that Mr.Ankit S. Shah could not appear before that particular Court, Mr.Viral K.Shah, who was at the panel was instructed by Mr.Ankit S.Shah to represent the matter before another Bench and not even before the same Bench, ultimately, Mr.Nanvaty submitted that on 16.10.2018, Special Civil Application No.20948 of 2016 came to be disposed of and Notice was discharged and connected Civil Application was found to be disposed of as did not survive and during that continuous period, Advocate Mr.Viral Shah represented NCMEI.
8. Rule 432 of The Gujarat High Court Rules, 1993, reads as under:-
'432. An Advocate may instruct another to appear:- Where an advocate appointed by a party in any of the proceedings is Page 14 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 prevented by reasonable cause from appearing and conducting the proceedings at any hearing, he may instruct another advocate to appear for him at that hearing.'
9. Rule provides that in case where an Advocate appointed by a party in any of the proceedings is prevented by reasonable cause from appearing and conducting the proceedings and he may instruct another Advocate to appear for him at any hearing. Here, in this case, Advocate Mr.Ankit S. Shah could not appear though was instructed by NCMEI by way of Vakaltnama to represent before the Court but he had reasonable cause not to appear before the said Court, where the matter was placed for hearing and since Advocate Viral Shah was also panelist and has authority to conduct the Central Government litigation before the High Court of Gujarat at Ahmedabad, he was instructed to appear and conduct the proceedings.
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R/CR.MA/11992/2018 ORDER DATED: 03/01/2023
10. The act of Mr.Ankit Shah petitioner of Criminal Misc. Application No.11883 of 2018, appointing Advocate Mr.Viral Shah petitioner of Criminal Misc. Application No.11992 of 2018, is in consonance with the Rules of the Gujarat High Court. There is no any case of misconduct or misbehavior nor could be considered as against the professional ethics or even further it could not be considered as was against the order of the Department of Legal Affairs, Law & Justice, Judicial Section. It is also to be noted that during the whole process till the disposal of the matter on 16.10.2018, NCMEI had not objected to the representation made by advocate Mr.Viral K.Shah on their behalf. 10.1 Appearance of Advocate Mr.Viral Shah is reflected in the order of Special Civil Application No.20948 of 2016. The complaint is dated 23.06.2018 for the offence punishable under Sections 120(B), 405, 418, 466, 467, 468, 471 of the Indian Penal Code. Reliance has been placed by Mr.Nanavaty in the case of Avadhoot Vishwanath Sumant Vs. State of Gujarat & Page 16 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 Ors. decided on 27.10.2021 in SCA No.2424 of 2016, whereby this Court had an occasion to deal with the matter by a practicing lawyer.
10.2 Referring to the facts of the case, this Court has dealt with the case where the allegation was that the party had never engaged the petitioner as a lawyer and under Sections 406, 420, 465, 467, 470, 471 and 114 of the Indian Penal Code, complaint came to be filed before the Police Station. 10.3 Observation made in the case of Mohammed Ibrahim & Ors. Vs State of Bihar & another reported in (2009) 8 SCC 751, has been reflected. Relevant paras of Mohammed Ibrahim's case are 13, 14, 15, 16, 17, 18 19, 20, 21 & 22 as under:
"13. The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question Page 17 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
14. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without Page 18 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
15. The sale deeds executed by first appellant, Page 19 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 clearly and obviously do not fall under the second and third categories of `false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category.
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property Page 20 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 describing it as his, there are two possibilities. The first is that he bonafide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a Page 21 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted.
18. Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows:
(i) deception of a person either by
making a false or misleading
representation or by dishonest
concealment or by any other act or
omission;
(ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is Page 22 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 likely to cause damage or harm to that person in body, mind, reputation or property.
19. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the accused should have dishonestly induced the person deceived
(i) to deliver any property to any person, or
(ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
20. When a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed, to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this Page 23 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 case the complaint is not by the purchaser. On the other hand, the purchaser is made a co- accused.
21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant allege that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, it cannot be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused, by reason of being the witness, scribe and stamp vendor in regard Page 24 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 to the sale deeds, deceived the complainant in any manner.
22. As the ingredients of cheating as stated in section 415 are not found, it cannot be said that there was an offence punishable under sections 417, 418, 419 or 420 of the Code.
11. The definition under Section 470 of the Indian Penal Code, clarifies about the forged documents. The term 'forgery' is made explicit under Section 463 of the Indian Penal Code which explains that whenever any forged documents is made with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied, contract or with intent to commit fraud or that fraud may be committed, would be considered as forgery.
12. Here, in this case, the Vakalatnama which had been produced, is alleged to be under the forged Page 25 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 signature of the authority, whereunder through RTI the complainant had tried to sought clarification from the authority concerned about signature on the Vakaltnama produced by Advocate Mr.Viral K. Shah and the information sought through RTI, was replied by the Information Officer, Ms. Saroj Punhani informing that she had not put her signature on the Vakaltnama and she has further clarified to the complainant that it is not her signature and that NCMEI has not appointed Advocate Mr.Viral K.Shah. 12.1 The FIR does not disclose the fact of any information sought for from Dy. Secretary Sandip Jain, under whose signature Vakalatnama of Advocate Mr.Ankit S.Shah dated 05.06.2017 was produced, and as alleged, the Vakaltnama of Advocate Mr.Viral Shah was with forged signature of the authority and thereunder 'Secretary, National Commission for Minority of Education', respondent No.1 herein, was handwritten. The very fact does not disclose any forgery, since the signature on the Vakaltnama, as alleged, was not disputed nor any Page 26 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 forgery could be considered by making false document. The only fact which would be of concern is the signature put on the Vakaltanam of Advocate Mr.Viral K. Shah. While the RTI reply suggests that Advocate Mr.Viral K. Shah was not appointed. The said reply would run contrary to the order dated 06.04.2015 of Ministry of Law and Justice, Department of Legal Affairs, since all the panel Advocates were engaged to conduct the litigation pertaining to Central Government before the High Court of Gujarat. Name of petitioner Mr. Ankit S. Shah reflects at Serial No.1 and Petitioner Mr.Viral K. Shah reflects at serial No.5.
13. Rule 432 of the Gujarat High Court Rules, 1993 itself directs an Advocate to instruct another to appear in the proceedings in case of reasonable cause preventing from appearing and conducting the proceedings. Therefore, the instruction given by Advocate Mr.Ankit Shah to Advocate Mr.Viral Shah to appear is neither illegal nor would be against the provisions of law nor would be even consider as Page 27 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 against the professional ethics, rather the Act is as mandated by the Rules of this Court.
14. In the case of Dr. Vimla Vs. Delhi Administration, reported in 1963(2) CRI.L.J. 434: AIR 1962 SCC 157 (2), the Apex Court had dealt with the meaning 'Defraud'. A Division Bench of the Bombay High Court in Sanjiv Ratnappa Vs. Emperor, AIR 1932 Bom 545 at page 550 had also occasion to consider the scope of expression "fraudulently" in Section 464 of the Indian Penal Code. The Court held that for an act to be fraudulent, there must be some advantage on the one side with a corresponding loss on the other.
15. Here, in this case, the complainant has failed to show or demonstrate as to how the appearance of Advocate Mr.Viral K. Shah instead of Advocate Mr.Ankit S. Shah has caused any loss to him or for that matter to NCMEI. Both the petitioners are authorised by way of order of the Ministry of Law & Justice, Department of Legal Page 28 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 Affairs, Judicial Section, dated 06.04.2015 to appear and conduct the Central Government's litigation before the High Court of Gujarat. Even without any Vakaltnama signed himself by NCMEI, Advocate Viral K. Shah would have appeared upon instruction of Advocate Ankit S.Shah by complying Rule 432 of The Gujarat High Court Rules. Even, if it is considered that the signature on the Vakaltnama placed by Advocate Mr.Viral K. Shah was not of a person authorised him; though the record does not suggests that, since Dy. Secretary Sandip Jain has not denied the said fact but even if it is considered that the signature on Vakaltnama placed by Advocate Viral K.Shah was not of Dy. Secretary Sandip Jain, there would not be any cause of forgery or fraud. 15.1 In the case on hand, all the Sections invoked against the petitioner presupposes the existence of forgery. The condition precedent for forgery is making a false document. The definition of "false document" is a part of definition of "forgery". Both must be read together. If so read, the Page 29 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 ingredients of offence of forgery would be; (1) fraudulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another or under his authority; (2) making of such a document with an intention to commit fraud or that fraud may be committed.
16. Fraud is made up of two ingredients i.e. deceit and injury. The principal object of every fraudulent person is to derive some advantage though such advantage has a corresponding loss or risk of loss to another. What benefit the petitioner derived and what injury the complainant sustained could not be found from the bare reading of FIR.
17. Thus, this Court has even considered that there was no intention of both the petitioners to cause any wrongful loss to NCMEI, nor any intention to derive any advantage or to cause any corresponding loss or risk of loss to NCMEI. The present complainant had even no cause to file FIR Page 30 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 since both the petitioners were representing as Advocates for the respondent - NCMEI in Special Civil Application No.20948 of 2016, which has been filed by the complainant. There would be no cause to commit any fraud to him or wrongful loss to the complainant, as petitioners were duty bond to represent NCMEI.
18. In case of State of Haryana V. Bhajan Lal and others, AIR (1992) SC 604, the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Apex Court made the following observations:-
"8.1. In the exercise of the extra- ordinary power under Article 226 or the inherent powers under Section 482 of Page 31 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised 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 channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:
(a) 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;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not Page 32 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 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;
(c) 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;
(d) 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;
(e) where the allegations made in the FIR or complaint are so absurd and Page 33 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023 R/CR.MA/11992/2018 ORDER DATED: 03/01/2023 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;
(f) 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;
(g) 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."Page 34 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023
R/CR.MA/11992/2018 ORDER DATED: 03/01/2023
19. Relying the judgment laid down in the case of Bhajanlal (supra), the present FIR, which is abuse of process of law and has been filed with an ulterior motive should not be permitted to stand and require to be quashed at the initial stage.
20. Resultantly, the present applications are allowed and the impugned FIR bearing I-C.R.No.188 of 2018 registered with Sola High Court Police Station, Ahmedabad and all other consequential proceedings arising out of the aforesaid FIR are also quashed and set aside qua the present petitioners.
Office to keep copy of this order in Criminal Misc. Application No.11883 of 2018.
(GITA GOPI,J) MANOJ Page 35 of 35 Downloaded on : Mon Jan 09 20:35:54 IST 2023