Gujarat High Court
Harshadbhai Matilal Patel vs State Of Gujarat on 15 November, 2022
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17172 of 2017
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2020
In
R/CRIMINAL MISC.APPLICATION NO. 17172 of 2017
With
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO.
1 of 2021
In
R/CRIMINAL MISC.APPLICATION NO. 17172 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 19168 of 2017
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2020
In
R/CRIMINAL MISC.APPLICATION NO. 19168 of 2017
With
CRIMINAL MISC.APPLICATION (FOR VACATING INTERIM RELIEF) NO.
1 of 2021
In
R/CRIMINAL MISC.APPLICATION NO. 19168 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
Page 1 of 74
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R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HARSHADBHAI MATILAL PATEL & 3 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR JAL S.UNWALA SENIOR ADVOCATE with MR PREMAL S
RACHH(3297) ADVOCATE for the Applicant(s) No. 1,2,3,4
MR MAULIK N SHAH(5280) for the Respondent(s) No. 2
MR HARISH PANDYA, MR RAJENDRA KOOKADA AND MS. HIRAL U
MEHTA(7003) ADVOCATES for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 15/11/2022
CAV JUDGMENT
1. Both the petitions being Criminal Misc. Application No.17172 of 2017 and Criminal Misc. Application No.1168 of 2017 are preferred under Section 482 of the Code of Criminal Procedure, 1973, (for short "the Cr.P.C.") praying to quash and set aside the FIR Page 2 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 being I-C.R. No.237/2016 under Sections 406, 420, 467, 468, 471 and 114 of IPC; and FIR being I-C.R. No.34/2017 under Sections 406, 420 and 114 of IPC, both lodged with Vadaj Police Station, Ahmedabad.
1.1 The respondent no.2 - original complainant in both the impugned complaints is same, who is son of the petitioner no.1, aged about 91 years, of both the petitions. The petitioner nos.2 to 3 in Cr.M.A. No.17172 of 2017 are the family members of the complainant being aunt, cousin brother and cousin sister respectively.
2. The facts in both the petitions are same, therefore, in brief, the same are narrated hereunder:
2.1 The father of petitioner no.1 and grandfather of the respondent no.2 complainant viz. Matilal Motilal Patel, who was Karta of Matilal Motilal Patel Hindu Undivided Family (for short 'HUF'), executed a registered release deed in favour of petitioner no.1 - Harshadbhai Matilal Patel and his brother Yadukant Matilal Patel in Page 3 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 respect of all the properties belonging to Matilal Motilal Patel. The properties also included the property bearing Survey No.54, F.P. No.91, admeasuring 3501 sq. meters situated at Mouje - Ghatlodiya, Taluka- Ghatlodiya, .
Thus, the share of Matilal Motilal Patel and his wife came to be released and transferred in favour of family of petitioner no.1 and his brother, who became the coparceners and karta of the HUF.
2.2 It is stated that in the year 1975, partial partition deed of certain properties took place between the petitioner no.1 and his brother Yadukantbhai Patel and on 25.08.1975, registered deed of partial partition of certain properties, for the properties which came to the share of family of petitioner no.1, partition took place between petitioner no.1, wife of petitioner no. 1 and son of petitioner no. 1 - original complainant. In the year 2004, the petitioner no.1, his wife, his brother - Yadukantbhai and the complainant sold their individual shares in respect of Survey No.190 to Devnandan Page 4 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 Commercial and Housing Co.op. Society Ltd. by different sale deeds and the complainant received a sum of Rs.93 Lakhs towards sale consideration for selling his share in Survey No.190. On 18.08.2005, Yadukantbhai executed a registered Will bequeathing his certain properties and his share in favour of his son, viz. Naimishbhai Patel. 2.3 It is further stated that the complainant had filed Special Civil Suit No.96/2006 against the petitioner no.1 and the purchasers before Civil Judge, Ahmedabad Rural, sought relief of setting aside of all the sale deeds in respect of certain properties including properties of Survey No.190, and after hearing all the parties, the learned Civil Judge, by order dated 25.01.2017, rejected the interim injunction application of the Complainant. The complainant herein challenged Exh.5 order before this Court in Appeal From Order No.55 of 2007, which came to be rejected by this Court by order dated 13.04.2007. Thereafter Misc. Civil application No.1456 of 2007 for review was filed, which also came to be dismissed by Page 5 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 order dated 20.06.2007.
2.4 It is stated that vide a registered partition deed dated 30.10.2007, the petitioner no.1 and his brother Yadukantbhai distributed the remaining properties of HUF, including the subject movable property equally between them. Thus, out of 3501 sq. meters, one-half share of the subject property admeasuring 1750.50 sq. meters came to the share of petitioner no.1 and his family consisting of his wife, his son - complainant, and his daughter. Thus, 1/4th share i.e. 437.36 sq. meters share was of complainant. Thereafter, on 21.01.2008, the brother of petitioner no.1 passed away. It is stated that, after a period of 2 years from the date of institution of civil suit, the respondent no.2 filed FIR being I-C.R. No.244/2008 with Naranpura Police Station for the offences punishable under sections 420, 468, 471 and 114 of IPC 2.5 On 11.09.2008, the petitioner no.1 filed Civil Suit No.2159 of 2008 before the City Civil Court, Page 6 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 Ahmedabad for partition of movable and immovable properties including the subject property between his family members. The petitioners have also preferred quashing petition being Criminal Misc. Application No.5974 of 2008 and Criminal Misc. Application No.6007 of 2008, wherein initially this Court stayed further proceedings in pursuance to FIR and subsequently vide order dated 27.03.2012, the FIR was quashed. It is stated that, on 29.11.2012, the respondent no.2 through his wife, filed Special Civil Suit No.755 of 2012 seeking specific performance of agreement to sell dated 13.8.2004 in respect of property bearing Survey No.54 (subject property) against the petitioners, claiming that the entire Survey No.54 and Survey No.46 are agreed to be sold by the petitioners, through their power of attorney holder i.e., respondent no.2 herein, for a very meager amount much less than the market value. The partition suit filed by petitioner no.1 in the year 2008, wherein original complainant was a party defendant no.3, came to be allowed vide judgment and decree dated Page 7 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 31.08.2012.
2.6 It is further contended that, the petitioner also got the partition decree registered on 08.08.2013 with the office of Sub-Registrar upon payment of stamp duty of Rs.5,47,000/-. As per the partition decree, the complainant is entitled to 1/4th share in respect of the one-half share of subject property received by the family of petitioner no.1. The original complainant - respondent no.2 approached the Hon'ble Apex Court challenging the order passed by this Court in quashing petition by preferring SLP (Cri,) No.355-356 of 2013, which came to be dismissed by the Hon'ble apex Court vide order dated 07.04.2014.
2.7 It is further contended that the petitioners filed an application under 0.7 R.11(d) of CPC seeking rejection of the above Special Civil Suit No.755 of 2012, filed by respondent no.2 through his wife and after hearing both the sides, the concerned Civil Court allowed the application under 0.7 R.11 of CPC of petitioners, thereby Page 8 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 rejected the aforesaid plaint being Special Civil Suit No.755 of 2012, on 11.04.2016.
2.8 Entry No.5217 came to be mutated in revenue records, recording the registered partition decree in respect of subject property and the same came to be certified on 07.06.2016; however, due to computer error, wrong area/measurement of land was reflected in respect of subject property in the revenue record and therefore, by an application dated 15.06.2016 under section 135-D, the petitioner no.1 approached the Mamlatdar, Ghatlodiya for correction in respect of the area of land, and after issuing notice to all the parties, necessary correction, as per the partition decree was made. 2.9 It is further contended that, the petitioners and other family members executed separate registered sale deeds dated 22.6.2016 in respect of their respective sub- plots being their respective individual shares in the subject property in favour of Shivam Developers; Page 9 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 however, the share of the original complainant - respondent no.2, was not sold and the same is still lying as an open land.
2.10 It is stated that, thereafter, on 06.12.2016, the respondent no.2 filed FIR being C.R.No.1-237/2016 with Vadaj Police Station and FIR being C.R. No.1-34/2017 lodged with Vadaj Police Station, Ahmedabad, under Sections 406, 420, 467, 468, 471 and 114 of IPC on 23.01.2017 against the present petitioners in both the petitions.
3. Mr. Jal S.Unwala, learned senior advocate with Mr. Premal S.Rachh, learned advocate for the petitioners submitted that the impugned FIRs do not disclose any satisfactory ingredients of any of the alleged offences against the petitioners, which was lodged by the complainant against his own father and other family members with a sole intention to extort more money and share from the subject movable property (amount in PPF account) and that too by suppressing fact of the civil suit Page 10 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 for partition of various properties including the subject movable property and decree passed thereon, which was not challenged and has attained finality, whereby complainant has received a sub-plot and amount being his individual shares in the subject property in terms of the partition decree.
3.1 Senior advocate Mr. Unwala, submits that earlier in the year 2008, similar FIR was lodged by the complainant against his own father and other family members in respect of another property, which was quashed by this Court vide order dated 27.03.2012 in Criminal Misc. Application No.5974 of 2008 and Criminal Misc. Application No.6007 of 2008, which came to be confirmed by the Hon'ble Apex Court by order dated dated 07.04.2014 in SLP (Cri,) No.355-356 of 2013. These aspects speak volumes about conduct and malicious intention of complainant in harassing and pressurizing his own family members.
3.2 Mr. Unwala, senior advocate stated that, the Page 11 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 dispute raised are purely of civil nature and the impugned FIRs are lodged at a much belated stage by adopting pressure tactics using police machinery. The respondent no.2 had initiated several civil and criminal proceedings and was a party to the partition suit and decree passed thereon which covers the subject property. He submitted that complainant is well aware about the registered release deed of the year 1968, subsequent partition deeds and partition suit in respect of family properties, Survey No.54, F.P. No.91, including subject movable property be considered as year 2008, the year of filing partition suit, the impugned FIRs came to be filed on 06.12.2016 and 26.01.2017 i.e. after a delay of 8 years and 9 years respectively, and that too without any explanation whatsoever; hence, the impugned FIRs are clearly an afterthought and the same are filed with a malafide intention after gross delay. Mr. Unwala relied on the decision of Hon'ble Apex Court in the case of Kishan Singh (D) Through L.Rs, Versus Gurpal Singh, reported in 2010 (8) SCC 775 (Para-2) to 25) and Page 12 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 decision of this Court in the case of Arvindbhai Maganlal Master Vs. State of Gujarat, reported in (2018) 1 GLH 149.
3.3 Mr. Unwala, senior advocate, drew the attention of the Court to the factual aspect and submits that, in the year 2013, the original complainant - respondent no.2 had earlier approached Naranpura Police Station making identical allegations as made in the impugned FIRs and after a detailed inquiry, police had found that there is no substance in the allegations and accordingly closure report was filed, and period of 4 years from the earlier complaint and closure report, the impugned FIR is filed on the basis of the same allegation which reveals malicious intention of the complainant in misusing police machinery by filing one after another complaint on the same set of allegations in different police stations. Thus, Mr. Unwala states that the same is nothing but abuse and misuse of process of court and law.
Page 13 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 3.4 Mr. Unwala, senior advocate further stated that, on bare perusal of the impugned F.I.R. in the background of the provisions of Section 405, which defines Criminal breach of Trust and Section 415, which defines Cheating, it will be clear that none of the ingredients of the offences punishable under section 406 & 420 of I.P.C. exist in the F.I.R. against the petitioners. 3.5 By relying on the decision of Dr. Vimla Vs. The Delhi Administration, reported in AIR 1963 SC 1572, Mr. Unwala stated that, expression "defraud" involves two elements i.e. deceit and injury to the person deceived; and by relying on the recent decision of this Court in case of Nitinbhai @ Raju Purshootambhai Prajapati Vs. State of Gujarat & Anr., decided on 20.12.2021 in Special Criminal Application No.3284 of 2016 [2022 (1) (HC) 237], Mr. Unwala stated that this Court has quashed the FIR after analyzing the terms 'Forgery' as provided under section 463 of IPC and Page 14 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 making a false document as provided under section 464 of IPC by observing that, ' complainant has failed to show prima facie how he has been injured, what damage is caused to him by the execution of referred documents'. He submits that in the present case neither complainant is deceived nor any injury caused to him, in as much as, the acknowledgment slip in respect of 135D notice issued to the complainant allegedly bearing his forged signature shows that the same is for the purpose of correction to be made in the revenue record with regard to the area of land in consonance with the decree passed by the Civil Court in partition Suit.
3.6 Mr. Unwala submits that as mistake occurred in mentioning the area of land in revenue records while recording decree in partition suit, the same was corrected in terms of partition decree, which even otherwise is the statutory duty of revenue authority. Mr. Unwala, thus states that applying the legal principles laid down by the Hon'ble Apex Court as well as this Court to Page 15 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 the facts of present case, it clearly appears that even if it is believed, without admitting, that signature of complainant on acknowledgment slip is forged, the same did not secure any advantage to the person who submitted the documents or cause, any economic loss or injury to the complainant, because his sub-plot being his share in the subject property, which he received pursuant to the partition decree was untouched and still in his possession.
3.7 Mr. Unwala, senior advocate further submitted that, a copy of FSL Report along with standard documents referred in the FSL Report is placed on record of present proceedings by the investigating agency and as observed by this Court on 22.12.2021, the FSL Report opines that the petitioners - accused have not done signature on the impugned documents in the name of the complainant.
3.8 By relying on the decisions of Inder Mohan Goswami and Anr. Vs. State of Uttaranchal & Ors., Page 16 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 reported in (2007) 12 SCC 1 and Hotline Teletubes And Components Ltd. Vs. State of Bihar, reported in (2005) 10 SCC 261, Mr. Unwala, submitted that time and again the Hon'ble Apex Court in catena of decisions, has considered the offences relating to cheating and criminal breach of trust and interpreted the same by observing that to make out an offence under section 420, it has to be specifically averred in the complaint that from the inception itself there was an intention to cheat. 3.9 Mr. Unwala relying on the decisions of (i) Thelapalli Raghavaiah Vs. Station House Officer, reported in (2007) 10 SCC 424, (ii) Md. Ibrahim & Ors. vs State Of Bihar & Anr., reported in (2009) 8 SCC 751 and (iii) Sharon Michael Vs. State of Tamil Nadu, reported in (2009) 3 SCC 375, stated that it is settled legal position that, when the dispute is of civil nature, criminal prosecution is not warranted and the same amounts to abuse of process of court. 3.10 According to Mr. Unwala, it is evident from Page 17 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 record of present case that the act of the complainant is absolutely malafide, vexatious and amounts to abuse of the process of law with the sole purpose of harassing the petitioners. Mr. Unwala also relied on the decision of State of Haryana Vs. Bhajanlal & Ors, reported in AIR 1992 SC 604. Thus, submits that, it is clear that the impugned FIRs are nothing, but sheer abuse of process of law and therefore, the same may be quashed and set aside.
4. Mr. Rajendra Kookada with Mr.Maulik N.Shah with Mr. Harish Pandya with Ms. Hiral U.Mehta, learned advocates for the original complainant - respondent no.2, submitted that the petitioners in the aforesaid quashing petitions have raised ground of the matter as civil in nature, as there is a decree in their favour and that there is a deed of partition by which the HUF properties were being partitioned and due to the alleged acts, no injury has been caused to complainant i.e. Respondent No.2, and as such, have sought for quashing of FIRs. Page 18 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 4.1 Learned advocate Mr. Kookada stated that it is the case of the original complainant - respondent No.2 that, the subject properties which have been wrongfully dealt with by the petitioners still continues to be the HUF properties in which respondent no.2 as a coparcener has share, which properties are dealt with by the petitioners unlawfully and deprived respondent No.2 of the said properties in wrongful manner and as such loss has been caused to respondent no.2.
4.2 Mr. Kookada submitted that, by deed of Partition/Release Deed of 1967, there was a partition between Matilal Motilal Patel and his brother and the subject property viz. Survey No.54 forms part of the said 1967 partition and the said partition was in respect of ancestral properties. Mr. Kookada submits that in 1968 Release Deed was executed, whereby the share of Matilal Motilal Patel was released and Survey No. 54 which is the subject property continued to be the Matilal Motilal Patel's property. He submits that in 1975, a partial Page 19 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 partition took place in Matilal Motilal Patel HUF, whereby the subject properties were not partitioned and continued to be Matilal Motilal Patel HUF properties; and in the aforesaid partition deeds, Respondent No.2, who was minor at that time, was admitted to be the coparcener of Matilal Motilal Patel HUF.
4.3 Mr. Kookada submitted that, it is the case of the petitioners that there was yet another partition of Matilal Motilal Patel HUF by way of partition deed dated 30.10.2007, however, respondent No.2 was not a party to the said partition deed dated 30.10.2007. He submitted that it is the case of petitioners that a Civil Suit being Civil Suit No.2159 of 2008 came to be filed seeking partition of the properties of Harshad Bhai Patel HUF, and it is alleged that Matilal Motilal Patel HUF was partitioned by a registered partition deed dated 30.12.2007 pursuant to which, the properties which came to the share of Harshad Bhai Patel was sought to be partitioned by way of the suit and as the decree was Page 20 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 passed, which according to the petitioners, is in respect of the subject property i.e. Survey No.54, the complaint made by Respondent No.2 is not maintainable as it was subject of a civil matter. Mr. Kookada submitted that, it is the case of respondent no.2 that the alleged partition deed dated 30.12.2007, referred to in the suit, is non- existing document. There is no existence of partition deed dated 30.12.2007, nor it is produced by the petitioners even before the Civil Court in aforesaid suit nor before this Court in the aforesaid petition.
4.4 It was also shown to this Court that the PAN Numbers of the parties were miss matched and were false. It is stated that in the aforesaid Petitions the petitioners have relied upon a partition deed of 30 10 2007 and not the alleged partition deed of 30.12.2007. It is stated that, the alleged partition deed 30.12.2007 is a non-existing document which was never produced and as such, no decree could at all being passed and in any event, as the said decree is obtained by miss- Page 21 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 representation and fraud and thus, the said decree is a nullity and bad in law.
4.5 Mr. Kookada states that, the partition deed dated 30.10.2017 relied upon in the petition does not deal with Survey no.54 and as such, the Survey No.54 could not be made subject matter of aforesaid suit. Further the respondent No.2 is not party/signatory to the said partition deed dated 30.10.2007 and it is not a partition deed binding upon respondent no.2 and no partition of Matilal Motilal Patel HUF could at all take place pursuant to said partition deed dated 30.10.2007 and subject property i.e. Survey no.54 as well as PPF account continued to be the property of Matilal Motilal Patel HUF of which Respondent No.2 is coparcener. It is stated that, petitioner no.1 - Harshad Bhai could not have claimed that Matilal Motilal Patel HUF was partitioned and by virtue of alleged partition, the properties which he got under aforesaid partition deed, if any, was further partitioned by him. It is stated that the alleged partition Page 22 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 deed dated 30.12.2007 did not deal with Survey No.54 by virtue of partition in aforesaid suit and by misrepresentation and in fact, by making false statements in the suit, the said decree was obtained which was not only fraud perpetrated upon respondent no.2, but it is also fraud played upon the Court for the purpose of obtaining the decree of which they were not entitled to, as the said decree was obtained by fraud, the same is a nullity in eyes of law and can be set aside even in collateral proceeding.
4.6 Mr. Kookada further stated that, respondent no.2 has also placed reliance upon judgments which shows that a family settlement/partition to which coparcener is not a party/signatory, such writing is not binding. He submits that, it is the case of petitioners that after obtaining the decree, they got the revenue records changed to reflect the decree and as there was an alleged error in showing the area in revenue record, they applied for its rectification and it is for that purpose, Page 23 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 section 135D Notice under Gujarat Land Revenue Code came to be issued to respondent no.2. It is the case of petitioners that the said section 135D Notice was received by respondent no.2 and have relied upon postal acknowledgment card to show the proof of service of the said Section 135D Notice upon respondent no.2. 4.7 Advocate Mr. Kookada submitted that it is the case of the respondent no.2 that neither the decree was served upon respondent no.2 nor section 135D Notice was received by respondent no.2. It is the case of respondent no.2 that someone has forged his signature on the postal acknowledgment and had prevented the said section 135D Notice reaching respondent no.2. It is stated that had respondent no.2 received the said section 135D Notice at relevant point of time, he would have got knowledge about the changes made in revenue records pursuant to the said decree. The FSL report called for by this Court categorically states that the postal acknowledgment is not signed by respondent no.2. In any Page 24 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 event, the petitioners by showing fake service of section 135D Notice altered the revenue records in respect of Survey No.54 and further dealt with Survey No.54 to the detriment of respondent no.2, thereby causing loss to respondent no.2.
4.8 It is stated that apart from the aforesaid challenge of respondent no.2 to the decree obtained by fraud, respondent no.2 has submitted that the said decree is merely a declaratory decree and no further relief was sought by the plaintiffs therein against the said decree, as required under section 34 of Specific Relief Act. It was further submitted by respondent no.2 that even assuming the decree to be valid decree, it was merely a Preliminary Decree declaring share of coparcener and until final decree is passed thereof by partitioning physically and dividing the properties by metes and bonds of the coparcener's property of which respondent no.1 and 2 are the coparcener and thus, to be entitled to the HUF property, as under Hindu Law, even after passing of a Page 25 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 Preliminary Decree declaring a share of a coparcener, the share are liable to be changed e.g. due to death of a member or birth of a child and as such, till such time the property is physically divided and parties are put in physical possession of respective shares, no partition could at all be said to have affected. It is submitted that, in the instant case, admittedly, the decree is a declaratory decree and no physical partition has taken place thereafter and Respondent no.2 was not put into physical possession of his share. The respondent no.2 continued to be entitled to subject properties which was in collusion and in fraudulent manner dealt with by petitioners. Thus, the loss was caused to respondent no.2. It is also submitted that, the aforesaid contention is without prejudice to respondent no.2's contention that there was no valid partition in the year 2007 and the said decree was obtained by fraud by relying on fraudulent documents and playing deceit by making false statements.
Page 26 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 4.9 It is stated that, the seed of deceit was sowed by the petitioners in the year 2007 by way of collusive Partition Deed dated 30.10.2007 entered into by Yadukantbhai as the 'Karta' of Motilal Patel HUF and Harshad Bhai as the coparcener of Motilal Patel HUF without making respondent no.2, who is also coparcener, a party to the said document, in order to effectuate the alleged partition of Motilal Patel HUF. The fraudulent action further continued when a bogus suit for partition was filed and decree was obtained by misrepresentation and playing fraud not only upon respondent no.2, but also on Civil Court with a view to deny and deprive respondent no.2 of his properties by using such fraudulently obtained decree. Revenue records were further changed as, in the said decree, Survey No.54 was adversely dealt with by the petitioners and thereby loss was caused to respondent no.2 by virtue of said illegal act of the petitioners. Mr. Kookada went to submit that a decree obtained by fraud is nullity in eyes of law and all acts done pursuant thereto are vitiated and said decree does Page 27 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 not come in aid so as to defraud Respondent No.2. 4.10. Mr. Kookada stated that even, the act of the petitioners in fraudulently receiving section 135D Notice in the name of respondent no.2 was with a view to prevent respondent no.2 from learning about changes being made in revenue record pursuant to the decree. The respondent no.2 in his reply, has raised contention that the said postman who had come to give 135D notice to Respondent No.2 has stated in his affidavit that Harshad Bhai had received the said 135D Notice and has signed the postal acknowledgment in the name of respondent no.2 and there are enough material placed on record which warrants investigation. Advocate Mr. Kookada relying upon the view of the Apex Court's decision in Niharika Infrastructure matter, submitted that the aforesaid quashing petitions are not maintainable and are liable to be dismissed, even, the PPF account of Matilal Motilal Patel HUF has been adversely dealt with, based upon alleged Partition Deed of 2007, which is not Page 28 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 valid partition and is not binding upon Respondent No.2, as Respondent No.2 is not signatory to it and even the said PPF amount is withdrawn based on false documents. 4.11 Relying on the case of Vineeta Sharma V. Rakesh Sharma, reported in (2020) 9 SCC 1, it is submitted that, the Hon'ble Supreme Court has explained in detail as to when a decree becomes final or when a decree simply remains preliminary in nature. By way of this judgment, Advocate Mr. Kookada for the complainant has demonstrated that the fraudulent decree obtained by the accused is only preliminary in nature inter alia as partition of the suit property has not been conducted by way of metes and bounds as it is mandatorily required under the Code of Civil Procedure.
4.12 Further relied on the case of Iqbal Singh Marwah Vs Meenakshi Marwa (2005 04 SCC 370) and stated that, the Hon'ble Supreme Court has inter alia held that the Civil Court findings are not binding on Criminal Courts. So, the defense of the accused that the Page 29 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 matter stands concluded purportedly by way of preliminary decree obtained from a Civil Court has no bearing whatsoever to the proceedings pending before this High Court as also the FIRs filed in the police stations.
4.13 To further substantiate this argument, learned advocate for the complainant also relied upon the Judgment of the Hon'ble Supreme Court Sheth Ram Vs. Laxmi Prasad (2009 11 SCC 545).
4.14 The Complainant has also relied upon various Supreme Court Judgments of (i) M/s. Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., reported in 2021 (5) Scale 610 (ii)Ramveer Upadhyay Vs State of UP and Anr. [2022 SCC OnLine
484) (iii) Relied on the judgment of Parvez Ahmed Vs State of UP, [2006 (55) SCC 669] to submit that FSL Report can be used as a defense in trial but cannot be viewed a ground for quashing. (iv) Satlu Jal Vidut Nigam Vs Rajkumar Rajinder Singh (Dead) Through Page 30 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 Legal Representatives and Ors., (2019) 14 Supreme Court Cases 449, to demonstrate that the scope of enquiry at the stage of writ petition under section 482 of the Criminal Procedure Code is limited and court ought not to exercise its discretion to quash an FIR or to quash any proceeding at premature stage except in the rarest of the rare cases.
5. Heard learned advocates appearing for the parties. The facts of the case, the arguments advanced by both the sides and the documents relied upon, would clearly specify that the complainant had tried to raise a civil dispute while invoking the criminal jurisdiction. The dispute raised is about the partition deed dated 30.12.2007, which according to Advocate Mr. Rajendra Kookada for the complainant is a non-existing documents. 5.1 The Civil Suit (CCC) No.2159 of 2008 was filed on 12.09.2008 by father of the complainant - Harshadbhai Matilal Patel by arranging his wife, daughter and son i.e. present complainant as party defendants, which was Page 31 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 decided on 31.08.2012. The suit was filed on the premise of there being joint family of plaintiff and defendants known as Harshadbhai Matilal Patel Undivided Hindu Family (HUF). The plaintiff was 'Karta' and Manager of the said HUF and had movable and immovable property managed by him. It was stated that partition of the properties of Matilal Motilal Patel was made on 30.12.2007 and in lieu of that partition, the plaintiff had become the owner of the movable as well as immovable properties and it has been referred in the Suit that partition deed was executed between the plaintiff and his elder brother Yadukant Matilal Patel.
5.2 The documents referred and relied upon by the complainant runs from the year 1967. The release deed dated 07.04.1967 is between Matilal Motilal Patel, Yadukant Matilal Patel, Harshad Matilal Patel and Solachnaben Matilal Patel as a party of first part and Matilal Motilal Patel as a party of the second part. As per the documents, there were joint ancestral properties, as Page 32 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 referred in the release deed, and the said document reflects the fact that Civil Suit No.178 of 1950 was filed in the Court of Civil Judge, Senior Division, Ahmedabad and a decree was drawn on 14.12.1959; half of the property was decided in favour of party of the second party, which was challenged in Appeal No.811 of 1961 before this High Court and after a compromise deed, decree was drawn and the property was apportioned in the ratio of 60:40 between first part and the second part. The property referred to in the said release deed was jointly decided to be sold to one Anubhai Lalbhai Shah by virtue of agreement to sale dated 14.03.1966, and 40% share of the second part i.e. brother of the grandfather of the complainant was released in favour of first part. Thus, the release deed was between the family of grandfather as first part and brother of grandfather as a second part. 5.3 On 22.02.1968, another release deed was executed between the grandparents of the complainant and the father and uncle of the complainant, which refers Page 33 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 to as Hindu Undivided Family, all were considered as members of Hindu Undivided Family with minor son i.e. complainant, Harshadbhai and Naimish as minor son of Yadukantbhai. The documents refers to the property of HUF, which were parted under four schedules. The debt of the family was referred to in schedule-2 and value of the family after deducting the debt was also referred in the release deed. As per the deed, the share of the grandfather and grandmother each was acknowledged as 1/4th. The grandfather of the complainant released his share, right, title and interest in all the joint movable and immovable property of the HUF and property described in Schedule-3 was considered to be of the independent ownership of grandfather of the complainant; while the property in Schedule-4 was declared to be in complete ownership of the grandmother of the complainant. The property, as reflected in Schedule-1, was declared to be the property of HUF of Matilal Motilal Patel and both the brothers i.e. father and uncle of the complainant were considered the member of the Matilal Motilal Patel HUF Page 34 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 and the grandparents parted themselves from the HUF, while declaring that HUF of Matilal Motilal Patel would continue as Yadukant Matilal Patel as 'Karta' and both the brothers as coparcener.
5.4 Schedule-1 of the said release deed dated 22.02.1968 included the properties of Survey Nos.46, 54, 67, 149, 151, 165, 171, 173, 183-1, 183-2, 184, 190, 201, 248, 145-1-2, 182, 142, 148-2 and 147. The said properties were under the head of Lot No.1, while in Lot No.2, Survey No.300 was shown to be property under lease, while under Lot No.3, Survey Nos.291 and 292 were shown to be under lease deed, while plot no.1-A, 30- B, 4-A, 4-B, 5-A, 5-B, 6-A, 7-A, 7-B, 8-A, 8-B, 9-A, 9-B, 10 and 13, wherein 60% share was considered as undivided. In Lot No.4, out of Survey Nos.291 and 292, final plot no.28 paiki was the land under lease with condition of sale to 'Pragati Co-op. Housing Society'. In Lot No.5, the house at Gram-Panchayat No.250 at village - Ghatlodiya was referred and under Lot No.6, the current account of Page 35 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 HUF of Matilal Motilal, the deposits and cash were referred. Serial No.2 had bifurcated the debts between all the parties of the documents.
5.5 On 26.03.1970, father and uncle of the complainant drew partition deed of Matilal Motilal Patel HUF, referring to Survey Nos.171, 184, 151 and 165 of village Ghatlodiya acknowledging that the said property had been received as ancestral property of Matilal Motilal Patel HUF, and according to decree 40% share of Matilal Motilal was sold to Chimanlal Mathurlal Patel, and the sale deed was in the name of 'benami' Manuprasad Chunnilal; thus, the property was assigned to the 'benamidar' from whom Matilal Motilal HUF had purchased that 40% share, and accordingly had become the property of Matilal Motilal Patel HUF. The said document also acknowledges the release deed dated 22.02.1968 of the grandparents of the complainant and as grandparents had taken away their share of the property, since then Yadukant Matilal Patel has continued as Page 36 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 'Karta' of the HUF. The documents, thus, acknowledges the Hindu Undivided Family of Chandrakant Matilal and Harshad Matilal. The document thereafter bifurcates Survey Nos.171, 184, 151 and 165 into schedule nos.1 and 2, which was partitioned. The property in schedule no.1, came in the share of uncle of the complainant, the father of petitioner no.3 - Naimish Yadukant Patel; while property in schedule no.2 had gone in the share of father of the complainant, who is petitioner no.1 in the matter. Both the brothers were considered as independent owner of the said partitioned property referred as Hindu Undivided Family of Matilal Motilal Patel. 5.6 On 25.08.1975, partial partition was shown of Survey No.183/1, 183/2, 190 and residential houses, as referred in survey no.190. The property referred was partitioned between both the brothers. The property described in Schedule No.2, came in the share of father of the complainant, which was survey no.183/2 with the area of 1 Acre and 6 Gunthas and survey no.190 paiki Page 37 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 with sub-plot no.A, B and C admeasuring 4 Acres and 21 Gunthas along with a private land of 16 Gunthas and a sub-plot no.G-2 of 11 Gunthas included the residential house. The said deed refers to release deed dated 22.02.1968.
5.7 While on the very same day i.e. on 25.08.1975 a partial partition of the property took place between the parents of the complainant and the complainant himself being the minor. Harshadbhai Matilal Patel as a first part, mother second part and minor Mihir i.e. complainant under the guardianship of Harshadbhai Matilal Patel was 3rd part, where the document considers the HUF of Harshadbhai Matilal Patel with father as a 'Karta' and Manager, while mother as a member of the family and minor Mihir, the complainant, as a coparcener of HUF. This document considers property as of HUF of Harshadbhai Matilal Patel, which included Survey No.171, agricultural land of village Ghatlodiya, Survey no.161 admeasuring 6 Acres and 5.5 Gunthas, Survey Page 38 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 No.184 as 4 acres and 24 gunthas and survey no.190 as plot nos.A and B along with road with the total measurement as 4 acres and 28 gunthas; where the document refers to the property received as ancestral property and referring as independent property of Harshadbhai Matilal Patel HUF. The document also refers to the partial partition which had taken place with the uncle of the complainant on the very same day. 5.8 The partition deed dated 25.08.1975 registered at Sub-Registrar Office under serial no.12558 partitioned the property as schedule nos.1, 2 and 3, and survey no.171 paiki of Ghatlodiya village with sub-plot no.F, admeasuring 2 Acres 2 Gunthas and 184 paiki with sub- plot-F along with road admeasuring 1 acre and 19 gunthas with Survey no.190 paiki, sub-plot-V along with road admeasuring 123 gunthas came in the share of the complainant and he was made owner of the property with understanding that their names be mutated in the government records. The said document was considered Page 39 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 as a partial partition of HUF.
5.9 The possession receipt was also executed of the property in favour of Yadukant Matilal Patel and others. The sale deed of final plot no.144 paiki of T.P. scheme no.18 with survey no.190 paiki, 5,173 sq. yard was executed in favour of Devnandan Commercial Housing Society Ltd., by the father of the complainant i.e. petitioner no.1.
5.10 The document, which is alleged to be a non- existing partition deed dated 30.12.2007, which is partition between Yadukant Matilal Patel and Harshadbhai Matilal Patel as both the brothers were a party of the individual HUF. The complainant's father and his uncle has referred HUF of Matilal Motilal Patel and Yadukant Matilal Patel being the 'Karta' and Manager of the HUF and petitioner no.1 being the real brother as a member and coparcener. The document verifies that the movable property of the HUF were equally divided between them and remaining immovable property of the Page 40 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 HUF was partitioned between them and accordingly final plot no.91 of survey no.50 in Ghatlodiya with sub-plot A and B were partitioned along with delineation of the road. The agricultural property of Daskoi Taluka and property at Nandej were partitioned with other rights as described therein and accordingly Matilal Motilal Patel HUF was decided to have been dissolved and was divided between both the brothers. The said document also mentions of some row houses at Chanakyapuri, Ghatlodiya village at Ahmedabad city. The row houses were also bifurcated and divided between both the brothers and finally it was concluded that there was no another property of HUF.
6. The complainant has challenged this final deed between his father and uncle, who are the members of HUF of Matilal Motilal Patel HUF. Some special power of attorney dated 04.06.1990 was also executed and copy of the same is also produced on record. The Index Copy of the sale deed nos.1320/2007, 2907/2006, 2906/2006 and 2998/2005 were also produced by Advocate for the Page 41 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 complainant, wherein the complainant along with his uncle as HUF 'Karta' of Matilal Motilal Patel and 'Karta' of his individual HUF, and the father as 'Karta' of Harshadbhai Matilal Patel and the complainant as a 'Karta' of his HUF named as Mihir Harshadbhai Patel HUF and petitioner no.3 as 'Karta' of Naimish Yadukant Patel HUF; while Ilaben Harshadbhai Patel and Maltiben Yadukand Patel, all as vendor have sold their respective properties. The 7/12 extracts of Devnandan Commercial & Co-operative Housing Society Ltd. along with name of other account holders are produced on record for reference.
7. It had been argued by senior Advocate Mr. Unwala that earlier too, an FIR being I-Cr. No.142/2008 was filed at Naranpur Police Station under sections 420, 461 and 471 of the IPC suppressing the fact of receiving the money towards sale consideration was lodged. Criminal Misc. Application No.5974 of 2008 with Criminal Misc. Application No.6007 of 2008 was filed for quashing Page 42 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 the FIR, which was allowed on 27.03.2012, wherein the issue was raised with regard to the plot of land sold by the first informant to Devandan Commercial & Cooperative Housing Society Ltd., and it was submitted that the complainant had pocketed a huge amount of rupees ninety three lakhs and to extract more amount of money had lodged the FIR. The FIR was in context with the documents in relation to which the offence was alleged to have been committed and those were the documents subsequent to execution of the sale deed, whereby the right and title of the land came to be vested in Devandan Commercial & Cooperative Housing Society Ltd.
8. In the impugned FIR, being I-C.R. No.237 of 2016 registered at Vadaj Police Station, Ahmedabad, the complainant referring to Survey No.54 of Ghatlodiya, has stated that his grandfather - Matilal Motilal Patel had executed a release deed on 22.02.1968 in favour of his father and uncle and thereafter the uncle, who died on Page 43 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 21.01.2008, in relation to his property had made (i) Patel Maltiben Yadukant (ii) Patel Naimish Yadukant and (iii) Patel Sonalben Yadukant as his legal heirs, and in the year 2005 had executed a will. On 16.12.2013, his lineal descendants were added in the property. The complainant in his complaint has stated that he was a coparcener of the ancestral property of deceased grandfather - Matilal Motilal Patel HUF and thereafter he came to know that three of the descendants had jointly executed the sale deed being (i) 8006/2016 (ii) 8008/2016
(iii) 8009/2016 and (iv) 8011/2016, on 22.06.2016 to Shivam Developers and on verification, he came to know that though will was executed, the same was not produced and in spite of will, the sale deed was executed by the successors to the property. The said information he had called for under R.T.I. Complainant has alleged that 135D notice was not served to him and on his behalf forged signature was made and false process was shown on his behalf, and thereby has alleged that he had been cheated and that there was criminal breach of trust. Page 44 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 8.1 The accused in the referred impugned FIR are, father of the complainant - Harshadbhai Matilal Patel and legal heirs of Yadukant Matilal Patel i.e. Maltiben Yadukant Patel, Naimish Yadukant Patel and Sonalben Yadukant Patel. Thus, the issue raised in the FIR is non- service of 135D notice under Gujarat Land Revenue Code, 1879 to him.
8.2 The FIR, impugned in Criminal Misc.
Application No.19168 of 2017 being I-C.R. No.34 of 2017, was registered with Vadaj Police Station under sections 406, 420 and 114 of IPC, wherein the complainant has made his father (i) Harshad Matilal Patel, his cousin (ii) Naimish Yadukant Patel and (iii) Vraj Bunglow, near Kunj Bunglow, behind Rajpath Club, Bodakdev, Ahmedabad as accused. As per the facts in the FIR, in the year 1981 - 82, his grandfather - Matilal Motilal Patel had opened a bank account in the name of Matilal Motilal Patel HUF at State Bank of India, Ashram Road, near Gujarat Vidhyapith and according to complainant the 'Karta' was Page 45 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 deceased - Yadukant Matilal Patel and six of them, Yadukant Matilal Patel, Harshad Matilal Patel, Mihir Harshad Patel, Malti Yadukant patel were co-owners, and according to him the HUF of his grandfather consisted of members of HUF with sons, grandsons and the heirs of HUF, and according to the complainant the PPF Account No.102 956 081 98 was for depositing the money/profit/sale amount from the scheme, which was floated for weaker section, on rent basis in installment method; and according to complainant the amount could not be withdrawn without the signature of all the family members, and as per his say, after the death of 'Karta', Yadukant Matilal Patel, all the members were required to have the legal pedigre of the successors and all members of the family including the complainant's wife and daughters were to be entered; and after their consent with the notarized affidavit, were to be added as joint owner for withdrawal of PPF amount.
8.3 According to the complainant in said PPF Page 46 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 Account total amount of Rs.13,50,135/- were lying and it was operated by his uncle - Yadukant Matilal Patel. It is alleged that after the death of 'Karta' in connivance with the bank officials, they had withdrawn the total amount and has caused monetary loss to him and as soon as he came to know on 30.07.2013, he had moved an application before the State Bank of India and had called for information under R.T.I.; thus the FIR impugned is with the allegation that the amount of Rs.13,50,135/- was withdrawn from the PPF Account.
9. The Civil Suit No.2159 of 2008 was filed on 12.09.2008, by father of the complainant, against respondent no.3 - present complainant and defendant nos.1 and 2 as mother and sister of the complainant. Thus, all the members of Harshadbhai Matilal Patel were the parties to the Suit. The observation made in the judgment shows that defendant nos.1 and 2, as wife and daughter of the plaintiff had no objection if the partition was allowed, while defendant no.3, the present Page 47 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 complainant, had appeared as party-in-person and requested for time. Though, adjournment was granted, he had not filed any written statement. Further, the judgment and order shows that affidavit in examination- in-chief (Exh.31), has been produced by defendant, thereafter, the present complainant had filed various applications at Mark-32, 33 and 34 and an application for stay of the suit at Exh.35, and the complainant as defendant had also filed list of documents at Exh.41 with 16 accomplishments. The applications of the complainant at Exh.32, 35 and 39 were rejected and thereafter the defendant no.3 failed to remain present before the Court, nor has preferred to cross-examine the plaintiff. In accordance to the observation of the learned Judge in Civil Suit (CCC) No.2159 of 2008, a legal notice was issued to all the defendants for partition. Defendant no.3 had received the legal notice and the A.D. slip to that effect had been produced on record, and accordingly on 31.08.2012, the suit in regard to partition of the movable and immovable property of Harshad Matilal Patel HUF Page 48 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 was allowed.
10. The impugned FIRs are dated 06.12.2016 and 26.01.2017. After the long period of partition of Harshad Matilal Patel HUF, the son had filed the FIRs against father, mother, sister and cousin brother. Both FIRs would have no relevancy, after all the documents executed within the family and after the partition of the HUF of Harshad Matilal Patel, the share of all the members in the family property, had been decided. The partition deed was even registered before the office of Sub-Registrar on payment of stamp duty and as per the partition decree, the plaintiff was entitled to 1/4 th share in respect of sub-property. As per record, even Special Civil Suit No.755 of 2012 was filed by the wife of the complainant on 29.11.2012 seeking special performance of the agreement to sell dated 13.08.2004 in respect of property bearing Survey No.54. An application under Order 7 Rule 11(D) of CPC was filed for rejection of the Suit, which was allowed and the plaint came to be Page 49 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 rejected.
10.1 The FIR dated 06.12.2016 alleges about the forged signature on the notice, served on 135D notice in context of the sale deeds by heirs of Yadukant Matilal Patel (i) Patel Maltiben Yadukant (ii) Patel Naimishbhai Yadukant and (iii) Patel Sonalben Yadukant. The Advocate for the complainant has sought to rely upon an affidavit of the postmaster, Ashwinbhai C. Bhavsar executed on 31.02.2018, who has stated that when he had gone to serve the Register A.D. on 28.06.2016, the father of the complainant i.e. Harshadbhai had taken the notice on behalf of the complainant and against his name in the acknowledgment card, by writing the alphabet 'M' and a stroke, with green ink, had accepted the acknowledgment slip; and according to postman, the notice was accepted by his father.
10.2 The F.S.L. report of Dy. Chief State Examiner of Questioned Documents, H.P.B., DFS, G.S., Gandhinagar and Asst. Examiner of Questioned Documents, Document Page 50 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 Div., DFS, G.S., Gandhinagar was produced on record by the police with report in connection to C.R. No.I- 237/2016, which refers to the standards and opinion, which are as under:
"Standards:-
S/1 to S/18, N1 : The enclosed signatures and writings are stated to be of Sh. Mihirbhai Harshadbhai';
S/19 to S/36, N2 : The enclosed signatures and writings are stated to be of 'Sh. Harshadbhai Matibhai';
S/37 to S/54, N3 : The enclosed signatures and writings are stated to be of 'Sh. Naimishbhai Yadukantbhai';
S/55 to S/72, N4 : The enclosed signatures and writings are stated to be of 'Sonalben D/o Yadukantbhai'.
OPINION
1) The person who wrote the enclosed standard Page 51 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 signatures and writings marked S/19 to S/36, N2 also wrote the red enclosed disputed signatures marked D/1 and D/3;
2) The red enclosed disputed signature marked D/2 is not written by any of the writers of enclosed standard signatures and writings marked (i) S/1 to S/18, N1 OR (ii) S/19 to S/36, N2 OR (iii) S/37 to S/54, N3 OR (iv) S/55 to S/72, N4."
Thus, according to report, the father of the complainant had put up the disputed signature, which is delivery slip of Department of Post, India. 10.3 In accordance to the impugned FIRs, the notice was in connection with the sale deed executed by the heirs of Yadukantbhai Patel in favour of Shivam Developers, to that the complainant would have no say after the partition of the HUF, where uncle was the 'Karta'; while another FIR is with respect to the amount, which is alleged to be withdrawn on 01.09.2008, from Page 52 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 PPF account of the HUF. If anyone, who had to dispute such withdrawal would have been the heirs of Yadukant Matilal Patel, as it was the PPF Account of Matilal Motilal Patel HUF. No challenge has been given by any heirs of the Yadukant Matilal Patel to the amount so withdrawn. The HUF of petitioner no.1 - Harshadbhai Matilal Patel was partitioned by a decree dated 31.08.2012 in Civil Suit No.2159 of 2008. If at all for any signature in the acknowledgment slip, concluded as of the father of the complainant, the complainant is required to show as to what damage has been caused to him by the Notice so received by the father regarding sale of the property by the heirs of Yadukantbhai Matilal Patel. Further the father had even accepted the registered post of the mother of complainant. As per the postman, the complainant had gone out of the house and therefore instead father had accepted the R.P.A.D. The facts suggest that complainant is staying at the same residential area of father where notice came to be served. Page 53 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022
11. The Hon'ble Apex Court in case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., reported in AIR 2021 SC 1918, observed in para10 as under:
"10. 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 under Page 54 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 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;Page 55 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022
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x) Save in exceptional cases where non-
interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered Page 56 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.
Page 57 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 11.1 The Hon'ble Supreme Court in case of Vimla Vs. Delhi Administration Vs. Delhi Administration, reported in 1962(0) AIJEL-SC 34253, observed as under:
"14. To summarize : the expression "'defraud"
inoslves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is', deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or non- pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
15. Now let us apply the said principles to the facts of the present case. Certainly, Dr. Vimla was guilty of deceit, for though her name was Vimla, she signed in all the relevant papers as Nalini and made the insurance company believe that her name was Nalini, Page 58 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 but the said , deceit did not either secure to her advantage or cause any non-economic loss or injury to the insurance company. The charge does not disclose any such advantage or injury, nor is there any evidence to prove the same. The fact that Dr. Vimla said that the owner of the car who sold it to her suggested that the taking of the sale of the car in the name of Nalini would be useful for income-tax purposes is not of any relevance in the present case, for one reason, the said owner did not say so in his evidence and for the other, it was not indicated in the charge or in the evidence. In the charge framed, she was alleged to have defrauded the insurance company and the only evidence given was that if it was disclosed that Nalini was a minor, the insurance company might not have paid the money. But as we have pointed out earlier, the entire transaction was that of Dr. Vimla and it was only put through in the name of her made minor daughter for reasons best known to herself. On the evidence as disclosed, neither was she benefited nor the insurance company incurred loss in any sense of the term.
11.2 The Hon'ble in case of Rajeshbhai Muljibhai Patel Vs. State of Gujarat, reported in 2020(3) SCC Page 59 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 794, with regard to the hand writing expert report, in para 18 and 19 held as under:
"18. Be that as it may, in the Summary Suit No.105/2015, leave to defend was granted to respondent No.2-Mahendrakumar on 19.04.2016. On the application filed by appellant No.3 in the said Summary Suit No.105/2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of respondent No.2- Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No.I194/2016 was registered on 28.12.2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court "whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts. When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the Page 60 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit.
19. It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the plaintiff-
appellant No.3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No.I- 194/2016, in our view, would amount to abuse of the process of Court and the petition filed by the appellants under Section 482 Cr.P.C. in Criminal Misc. Application No.2735/2017 to quash the FIR I-194/2016 is to be allowed."
11.3 In the case of Mohd. Ibrahim and others v. State of Bihar and another reported in (2009) 8 SCC Page 61 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 751, the Hon'ble Supreme Court in para 9, 10 and 11 has observed as under:
"9. The term "forgery" used in these two sections is defined in section 463. Whoever makes any false documents 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 the fraud may be committed, commits forgery.
Section 464 defining "making a false document" is extracted below :
"464. Making a false document.--A person is said to make a false document or false electronic record---
First.--Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution Page 62 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.Page 63 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022
R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 Explanation 1 - A man's signature of his own name may amount to forgery.
Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
[Note: The words `digital signature' wherever it occurs were substituted by the words `electronic signature' by Amendment Act 10 of 2009].
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 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 Page 64 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 accused.
10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
10.1) 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.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
10.3) 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.Page 65 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022
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11. 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."
13. 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 likely to cause damage or harm to that person in body, mind, reputation or property. 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 Page 66 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 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).
11.4 In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, 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 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 Page 67 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 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 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 noncognizable 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 inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground Page 68 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 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."
12. In the FIR dated 06.12.2016, the complainant disputes about the property, Survey No.54 of Ghatlodiya, which he has stated in FIR belonged to his grandfather Matilal Motilal Patel and by release deed dated 22.02.1968 the said property was released in favour of his father - Harshad Matilal Patel and uncle Yadukant Matilal Patel, and according to the complainant, thereafter, his Page 69 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 uncle has made (i) Patel Maltiben Yadukant (ii) Patel Naimish Yadukant and (iii) Patel Sonalben Yadukant as his heirs to part of his property by way of will and after the death of his uncle on 21.01.2008, it is stated that on 16.12.2013, all the lineal descendants were added as heirs, but it is alleged that the said being ancestral property of his grandfather - Matilal Motilal Patel HUF, in spite of he being co-owner, the three of them i.e. heirs of Yadukant Matilal Patel had sold property by four different sale deeds on 26.02.2016, to Shivam Developers. It is further alleged that though there had been will of his uncle and in spite of name being mutated as per the will, the sale deed has been executed, as if, his father had died intestate.
12.1 The complainant, if at all, had any dispute regarding his share, is required to challenge all the sale deeds before the Civil Court, when the facts suggest that the grandfather had already released the property in favour of both his sons. The complainant has failed to Page 70 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 show any injury caused to him by acceptance of 135D notice by his father. The facts also disclose that partition suit was filed by the father of the complainant and decree was drawn on 31.08.2012. The HUF of the grandfather was declared to be dissolved by way of partition between father and uncle of the complainant.
12.2 In the FIR dated 06.12.2016, the dispute raised is about PPF amount of Rs.13,50,135/- , and for that if at all the complainant had any dispute he could certainly file Civil Suit putting his claim on the share of the PPF amount. Both the FIRs are abuse of process of law. No cognizance can be taken of the allegations made, both the FIRs fall in category of rarest of rare case, where the quashing becomes necessary under section 482 Cr.P.C. Both the FIRs cannot be permitted to prevail and no investigation to that effect can be allowed by the Investigating Officer, where the disputes raised in both the FIRs are purely civil in nature, where all the registered documents declared their rights under HUF. Page 71 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 12.3 Further, it is to be noted that even the FIR being I-C.R. No.244/2008 with Naranpura Police Station in context of Devnandan Society, was also ordered to be quashed and set aside by order dated 27.03.2012 in Criminal Misc. Application No.5974 of 2008 with Criminal Misc. Application No.6007 of 2008.
12.4 All the applicants in both the petitions are family members. The complainant as such cannot raise any dispute by way of filing FIR. The civil rights has to be claimed by way of civil suit; lodging of criminal prosecution leads to serious consequences of accused having to face arrest, and further such FIRs would bring disrepute to the family members in the society. It appears that complainant staying in the same house with the father has used the criminal machinery to settle his personal scores against the family members, which cannot be permitted, since no injury has been caused to him to the dispute raised.
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13. In view of the above observations and propositions of law, both the petitions are allowed. The first information report bearing I-C.R. No.237/2016 and the FIR bearing I-C.R. No.34/2017 both lodged with Vadaj Police Station, Ahmedabad qua the present petitioners are quashed and set aside. Rule is made absolute to the aforesaid extent.
14. In view of the disposal of main matter, all the connected applications do not survive and accordingly the same are also disposed of.
15. After declaring the judgment, learned advocate appearing for the respondent no.2 has prayed for staying judgment for about six weeks. The prayer cannot be granted, since the FIRs are ordered to be quashed and if stay of this judgment is permitted, then the petitioners and the family members would have to face arrest and Page 73 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022 R/CR.MA/17172/2017 CAV JUDGMENT DATED: 15/11/2022 would be dragged in the investigation, which is not at all warranted.
(GITA GOPI,J) Pankaj Page 74 of 74 Downloaded on : Wed Nov 16 21:10:05 IST 2022