Meet Ramjibhai Patel(Moradiya) vs State Of Gujarat on 21 September, 2022

[Cites 41, Cited by 0]

Gujarat High Court

Meet Ramjibhai Patel(Moradiya) vs State Of Gujarat on 21 September, 2022

Bench: Gita Gopi

    R/CR.MA/1279/2017                             JUDGMENT DATED: 21/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 1279 of 2017
                                With
         CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2017
           In R/CRIMINAL MISC.APPLICATION NO. 1279 of 2017

FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

==========================================================

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 ?

==========================================================
               MEET RAMJIBHAI PATEL(MORADIYA) & 13 other(s)
                                 Versus
                      STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
MR IH SYED, SENIOR ADVOCATE assisted by MR ANKIT B PANDYA(5906)
for the Applicant(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9
MR PRANAV TRIVEDI, APP for the Respondent(s) No. 1,2
MR DHARMESH V SHAH(1050) for the Respondent(s) No. 3
==========================================================

    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 21/09/2022

                            ORAL JUDGMENT

1. By way of this Criminal Misc. Application under Section 482 of the Code of Criminal Page 1 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 Procedure, 1973 (for short "Cr.P.C."), the applicants have challenged the criminal complaint being CR No.I-225/16 dated 24.12.2016 registered with Vastrapur Police Station for the offence punishable under Sections 406, 420, 465, 467, 468, 469, 471 and 120B of the Indian Penal Code.

2. The applicants no.1 to 13 are the partners of the partnership firm, namely, M/s. Hare Krishna Developers engaged in the business of construction. It is stated that the land bearing survey No.497/1, 498/P, 500/1, 500/1, 500/3 and 508/P, F.P. No.2+6+ (12+13)/1 of draft T.P. No.37A, Thaltej, admeasuring 18151 sq. mtrs. after deduction of 40% of the land came to be purchased by the applicants from the accused no.1 - Poras Babubhai Patel by way of different registered sale deeds on 1.9.2005. Thereafter, necessary N.A. permission was Page 2 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 sought for and after paying the premium, scheme named Sahjanand Palace Bungalows consisting of 40 bungalows was floated by the applicants.

2.1 It is stated by the applicants that each bungalow and the plot is of individual ownership and therefore, there would not be any case of cooperative society. However, later on service cooperative society was created with a view to maintain the said scheme.

2.2 It is stated that in village form no.7/12 extracts, the land was shown as "old tenure"

and during N.A. permission proceedings, it was brought to the notice of the applicants that survey No.497/1 and 508 is of the restricted tenure land and thereby, premium was fixed at Rs.3,67,00,000/- and the same was paid by the applicants. The construction Page 3 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 of the bungalows was carried out after necessary development permission and revised development permission. 5 bungalows constructed on the land bearing survey No.497/1 and 508 were shown to be without development permission and thereby, on the grant of revised development permission, condition was inserted for removal of construction of 5 bungalows. It is stated that the owner of those 5 bungalows have not raised any grievance. Thereafter, on the operation of the Gujarat Regularization of Unauthorized Development Act, all the bungalow owners have filed an application before the competent authority for regularization of the unauthorized construction including those 5 bungalows.

All the necessary documents and papers were provided to the members to obtain authorization after the payment of impact Page 4 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 fees.

2.3 It is submitted that respondent no.3/complainant of the impugned FIR has thereafter in the year 2014 purchased bungalow no.15 from erstwhile owner-Shri Hareshbhai Lakhasing Nagdev and Payal Hareshbhai Nagdev by way of registered sale deed. After purchasing the said bungalow, respondent no.3 has started raising issues with the present applicants on one or the other grounds and thereafter, criminal complaint was filed by respondnt no.3, which was registered as Criminal Inquiry no.52 of 2015, before the learned Chief Judicial Magistrate, Ahmedabad Rural against the present applicants for the offence punishable under Sections 406, 420, 465, 467, 468, 471 and 120B of the IPC, wherein the learned Chief Judicial Magistrate directed the respondent no.2 - Police Page 5 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 Inspector, Vastrapur Police Station to make inquiry under Section 202 of the Cr.P.C.

vide order dated 12.3.2015. The report of the police of Vastrapur Police Station was submitted on 6.4.2016 and was produced before the learned Chief Judicial Magistrate, wherein it was concluded that no criminal offence is made out and dispute appears to be civil in nature. Pursuant to the said report, the learned Chief Judicial Magistrate issued notice to the respondent no.3 and it is stated that the proceedings is yet pending.

3. Heard Senior Advocate Mr. I.H. Syed assisted by Mr. A.B. Pandya, learned advocate for the applicants. Mr. Syed submits that the report of the police dated 6.4.2016 before the learned Magistrate cannot disclose any criminality of the applicants rather the report stated all civil dispute and further Page 6 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 submits that during the course of inquiry under Section 202 of the Cr.P.C., the parties had entered into settlement by way of agreement dated 12.6.2015 on certain terms and conditions. The applicants by way of settlement had paid a sum of Rs.30,00,000/- by cheque to the society. The applicants also state that the orders dated 9.11.2015 and 29.6.2015 were passed by the competent authority for consolidation of the lands in question and mutation entry to that effect was made in the revenue records.

3.1 Learned Senior Advocate Mr. Syed submits that respondent no.3 has also approached this Court by way of filing Special Civil Application no.14484 of 2016 inter alia praying for quashing of variation of Town Planning Scheme no.37A (Thaltej), despite that, respondent no.3 had lodged the impugned FIR making allegations against all, Page 7 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 which according to Mr. Syed is to pressurize the applicants and to extort money. 3.2 Advocate Mr. Syed submits that respondent no.3 had filed Special Criminal Application no.8518 of 2016 before this Court inter alia praying to lodge FIR against the applicants by suppressing the fact of pendency of Criminal Inquiry no.52 of 2015 whereby this Court vide order dated 13.12.2016 directed the Police Inspector, Vastrapur Police Station to look into the matter. Pursuant to that, impugned FIR being CR No.I-225/16 dated 24.12.2016 for the offence punishable under Sections 406, 420, 465, 467, 468, 469, 471 and 120B of the IPC was registered. Investigating agency has filed charge-sheet no.159/19 dated 4.6.2019 before the competent Court and it was registered as Criminal Case no.13759/19 before the learned Additional Chief Judicial Magistrate First Page 8 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 Class, Ahmedabad Rural.

3.3 Advocate Mr. Syed submits that the impugned FIR is false, frivolous, vexatious and entire dispute is civil in nature. Respondent no.3 had not purchased the property being bungalow no.15 from the applicants rather it was resold and the said bungalow no.15 was purchased from Haresh Lakhabhai Nagdev and Payal Nagdev by way of registered sale deed. Hence, Mr. Syed submits that it was for the respondent no.3 to have inquired about the title of the property from the erstwhile owner and would have no ground to agitate against the applicants since there was no privity of contract between the applicants and the respondent no.3. There would not be any ingredients of Section 406 or 420 IPC which would be attracted in the matter and hence, the FIR is required to be quashed. Page 9 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 3.4 Mr. Syed further submits that once the cognizance under Section 202 of Cr.P.C. is taken by the learned Chief Judicial Magistrate, there would not be any proceedings under Section 154 of Cr.P.C. as to putting the matter in pre-cognizance stage, in support of the arguments has relied upon the judgment of Devarapalli Lakshminarayana Reddy & Ors., Vs. V. Narayana Reddy & Ors., reported in (1976) 3 SCC 252, Tula Ram & Ors. Vs. Kishore Singh, reported in AIR 1977 SC 2401, Vijaychandra Prakash Shukla Vs. State of Gujarat, reported in 2017 (1) GLR 840.

3.5 Mr. Syed further submits that so far as the allegation as to non-providing of B.U. permission is concerned, since all the bungalows have been regularized under the the AUDA, the grievance would not remain. As Page 10 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 for one of the owner/occupant of bungalow for allegation of signature of deceased Dudhiben, it is contended that the application was submitted by son of Dhiru Gajera and therefore, the present applicants as developers would have no role to play for the benefit which had been received as heirs. Against the allegation as to variation of draft Town Planning Scheme No.37A, Thaltej, it is submitted by Advocate Mr. Syed that issue is at large before this Court and it is purely civil in nature. Thus, taking this Court through various orders of this Court, Mr. Syed submits that once the complaint has been registered before the learned Chief Judicial Magistrate and order under Section 202 of Cr.P.C. has been passed and where respondent no.3 has given his protest application, on the very facts of the case, no other FIR could be Page 11 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 registered as the FIR is an abuse of process of Court and thus, made a prayer to quash and set aside the same.

4. Countering Dharmesh V. that the present FIR is not registered this Court no.8518 of Inspector, ordered lodged by the cognizable filing more than behalf of the including applicants regularization Page 12 of 62 id="span_26"> Downloaded on : Sun Dec 25 02:20:22 IST 2022 JUDGMENT DATED: 21/09/2022 the Gujarat Regularization of Development Act, 2011 by fraudulent signatures in the bringing the members to for their signatures. It is of the affidavit bears of a deceased person and deceased had given a the effect that he had neither of late Dudhiben nor any application to the AMC for regularization of construction of his tenement the Gujarat Regularization of Development Act, 2011. Advocate submits that it was the of the applicants to get B.U. for the newly constructed which were sold by them to the as the development id="span_27"> Page 13 of 62 id="span_28"> Downloaded on : Sun Dec 25 02:20:22 IST 2022 JUDGMENT DATED: 21/09/2022 issued with special condition of existing construction of 5 thus, submits that applicants collusion with applicant no.14 to prepare applications for of unauthorized construction Gujarat Regularization of Development Act, 2011 for all tenements. Applicant no.14 signatures of each of the on the plans of each and after that they had applications for all individuals the Gujarat Regularization of Development Act, 2011 and to the AMC authorities with signatures/affidavits and the notarized application form the development permission number been altered and got the id="span_29"> Page 14 of 62 id="span_30"> Downloaded on : Sun Dec 25 02:20:22 IST 2022 JUDGMENT DATED: 21/09/2022 orders of all the individual The said orders were kept by for more than one year and was handed over to the member by putting in a file it as BU file after the of the society was handed to the elected Committee of the

4.1 Mr. Shah submits that letter no.

GRUDA/AMC/NWZ/170812/0335 dated 5.1.2014 was sent by the authorities to the applicants no.1 to 13 for regularization of the construction of 38 tenements and to comply with the shortcomings by submitting supporting documents confirming that the said construction of the tenements had been carried out before 28.3.2011. Mr. Shah submits that AMC office had already issued regularization orders for all those Page 15 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 tenements under the Gujarat Regularization of Unauthorized Development Act, 2011 earlier during September-October 2013 and the officers were also party to the fraud. Mr. Shah submits that forgery of the signatures of the members by preparing affidavits by the Gujarat Regularization of Unauthorized Development Act, 2011 and grabbing of the society's common land were never part of the previous Criminal Inquiry Case no.52 of 2015 filed by the Deponent before the learned Chief Judicial Magistrate. He states that applicant no.14 was Ex-Chairman of the society who has obtained signatures and for that had prepared applications with requisite documents in collusion with applicants no.1 to 13 and have received regularization orders from AMC and according to Mr. Shah those orders were received after placing Page 16 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 fraudulent signatures for the members for execution of the affidavit. Relying on the judgment of P. Sreekumar Vs. State of Kerala & Ors. rendered in Criminal Appeal no. 408 of 2018 dated 19.3.2018, Advocate Mr. Shah submits that there is no prohibition in law to file second FIR and such FIR is capable of being taken note of and tried on merits in accordance with law.

4.2 Mr. Shah, learned advocate for respondent no.3 submits that Criminal Inquiry no.52 of 2015 filed before the learned Chief Judicial Magistrate, Ahmedabad Rural on 11.3.2015 is pending hearing. Settlement was worked out on 13.6.2015 after the amount was paid to complete the amalgamation process of all the survey numbers included in the sanctioned layout and complete process of revision sale deeds for correcting the errors in writing the survey numbers and F.P. numbers in the Page 17 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 registered sale deeds, but it is submitted by Mr. Shah that since conditions of the settlement are not fulfilled by the accused, settlement becomes void.

4.3 Mr. Shah further submits that the complainant had raised objection before the competent authority against the grant of the development permission when he came to know that part of land bearing revenue survey No. 498 was granted for conversion of N.A. permission from residential to commercial purpose. Mr. Shah further states that the competent authority issued a notice on 28.6.2016 to remain present with documentary evidences and while preparing for the reply of the notice, Mr. Shah stated that the complainant came to know about the regularization orders secured by preparing more than 100 affidavits with forged signatures of the society members including Page 18 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 the deceased and therefore, filed a complaint dated 19.7.2016 before the police to register the FIR. Mr. Shah submits that though the information produced before the police disclosed cognizable offence, FIR was not registered while the complaint came to be transferred to Sola Police Station on the ground that the society is not within the jurisdiction of Vastrapur Police Station though Criminal Inquiry no.52 of 2015 was conducted by the said Police Station. Mr. Shah submits that the complaint came to be registered only after the directions issued by this Court dated 13.12.2016 as the death certificate of late Dudhiben Patel showing her death on 11.12.2012 and affidavits with forged signatures dated 1.5.2013, 2.7.2013 and 30.8.2013 were submitted which disclosed the commission of the cognizable offence. Mr. Shah submits that those people who are Page 19 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 alleged to have committed the said offence are not accused in Criminal Inquiry no. 52 of 2015, forgery of the signatures of the members in preparing the affidavits for the Gujarat Regularization of Unauthorized Development Act, 2011 and grabbing of society's common land were never part of Criminal Inquiry no. 52 of 2015 since the complainant was not aware of the said fact. Mr. Shah submits that Ex-Chairman of the society who is also accused in the charge sheet obtained the signatures of the members on the plan of the individual tenements, prepared applications with requisite documents in collusion with the co-accused and secured regularization orders from AMC and retained the said orders for more than a year and thereafter, handed over them to the society members.

Page 20 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 4.4 It is alleged by Advocate Mr. Shah that to get the regularization orders for each individual tenements, the accused prepared affidavits with false signatures of the members for execution of the affidavit in collusion with other applicants which were notarized before notary in absence of the deponent. Mr. Shah submits that applicant no.14 of the present matter was not accused in the previous complaint and fraud mentioned in the complaint is after execution of the sale deed and handing over the possession of the tenements to the society members. Therefore, the grounds canvassed by the applicants that the previous and the present complaints are same is not correct and they have tried to mislead this Court to avoid criminal trial which cannot be permitted by exercising the extraordinary jurisdiction of this Court Page 21 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 under Section 482 of the Code of Criminal Procedure, 1973.

4.5 Mr. Shah further states that the affidavit of late Dudhiben Patel was submitted before the authority to be shown through his son while he was not in India which categorically disclosed that false affidavit was filed and further, the FIR prescribes how false F.P. number is mentioned in the registered sale deed to suppress survey no.498. He further submits that more than 100 affidavits of the society members with their forged signature by notary is produced which came to the knowledge of the complainant later on and further states that forged copy of FIR was submitted before the Court with an intention of obtaining the order and thereby has committed offence under Sections 191, 193, 463, 466 and 471 of the IPC for which an application is filed Page 22 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 under Section 340 of the Cr.P.C. Mr. Shah submits that in view of factual and legal aspect of the matter, it becomes crystal clear that the FIR in question is pertaining to fraudulent signatures made in 100 affidavits which includes affidavit of the deceased, prima facie discloses the cognizable offence and thus, submits that the FIR in question cannot be quashed and is required to be proceeded in accordance with law.

5. Having heard both the learned advocates and perusing the documents, the admitted fact on record is that respondent no.3 had filed a criminal complaint before the learned Chief Judicial Magistrate, Ahmedabad Rural which was registered as Criminal Inquiry no.52 of 2015 against 16 persons named in the complaint. The order of the learned Chief Judicial Magistrate was under Section 202 of Page 23 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 Cr.P.C. to the Police Inspector, Vastrapur Police Station who thereafter filed a report on 6.4.2016 noting all the facts and about development project and regarding the regularization of the property. It is also noted that there was a settlement between the complainant and the opponents for the amount to the tune of Rs.30,00,000/-.

6. The settlement agreement is produced on record between M/s. Hare Krishna Developers and Sahjanand Palace Cooperative Housing Service Society Limited. The developers had mutually agreed to pay Rs.30,00,000/- to the society towards total sum of balance cash as per the balance sheet, AMC/AUDA Drainage and water connections regularization charges, AMC Tax Bill, member maintenance deposit and applicable interest, account keeping fees etc. and the amount had been paid by the developers to the society. It was also noted Page 24 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 that the application for consolidation was submitted by the developers to the competent authority and that there would be follow up to the proceedings and it was for the developers to obtain consolidation order and after receipt of the order, the developer had to carry out all the procedures and formalities of the revision sale deed of all the units including resale units at their cost and it was decided that the developers will submit the original affidavit of all the heirs of late Ramjibhai Parshottambhai Patel for their no objection to the entry no.13691 certified on 10.3.2015 for survey No.497/1 and 508 T.P. No.37A, Thaltej, Taluka Dascroi, District Ahmedabad. It was also noted that the developers have submitted 3 affidavits to the society. The society thereby had agreed to withdraw the police complaint.

Page 25 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022

7. Report of the police suggests that there was no criminality and the allegations are civil in nature. Against that, the respondent no.3 had filed a protest petition which is pending for hearing.

8. On 31.3.2022, this Court had passed the following order:-

"It has been brought to the notice of this Court that the report has been filed before the learned Chief Judicial Magistrate, Ahmadabad District (Rural) at Mirzapur on 06.04.2016 of no criminality where it is submitted that protest petition has been filed by the complainant. Police to file a report as to how and under what circumstances the FIR bearing C.R. No. I - 225 of 2016 dated 24.12.2016 registered with Vastrapur Police Station came to be filed under Sections 406, 420, 465, 467, 468, 469, 471, 120(B) of Indian Penal Code. Let report be filed by the Page 26 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 police so as to reach this Court on or before 13.04.2022.

List this matter on 13.04.2022."

9. In compliance of the order, the report of Vastrapur Police Station, Ahmedabad City dated 21.4.2022 was produced by the learned APP and it was submitted by the learned APP Mr. Pranav Trivedi that as per the report, FIR was registered, as after the inquiry report was submitted, it was found from the complaint and the evidence that the accused- Poras Babubhai Patel and 16 others had without any B.U. permission sold 36 tenements to the members of the society and as per the AUDA permission dated 27.6.2011, the main condition was that 5 tenements constructed on plot no.2 which were sold were required to be brought down, but with the malafide intention on the ground of taking the signatures for the B.U. Page 27 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 permission with forged and bogus signatures, 100 affidavits were executed before the advocate notary Beena R. Megha and notary Rita D. Gandhi and inspite of knowing the fact that one of the owner of tenement no.2 had died on 11.10.2012, 3 different affidavits were executed in her name and those bogus documents were produced before the Government office and thus, according to the police, on that ground, FIR was registered.

10. The learned Chief Judicial Magistrate issued notice to Nagjibhai-complainant and it is reported that the complainant has filed his protest petition. It is also further found on record that compromise agreement was drawn between Sahjanand Palace Cooperative Housing Service Society Ltd. and M/s. Hare Krishna Developers - a partnership firm and as per the settlement, developers and the Page 28 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 Cooperative Housing Service Society Ltd. decided the terms of the settlement and the admitted fact is that respondent no.3- Nagjibhai had signed the settlement agreement as a Secretary of Sahjanand Palace Cooperative Housing Service Society Ltd. It was mutually agreed upon and noted in the agreement that the application for consolidation had been submitted by the developers to the competent authority and the developers have to follow it up and obtain consolidated order from the competent authority. A copy of the said application was also submitted to the society.

11. Respondent no.3 on behalf of the society had agreed to withdraw the police complaint on the terms and conditions agreed upon. In Criminal Inquiry no.52 of 2015, which was ordered for inquiry under Section 202 of the Cr.P.C. dated 11.3.2015, Vastrapur Police Page 29 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 Station had filed a report on 6.4.2016. It is contended by the police by his report that FIR was lodged in accordance to the directions issued in Special Criminal Application (direction to lodge FIR/complaint) no.8518 of 2016 dated 13.12.2016. For convenience to understand the development of the matter and cause for registration of the FIR, the said order is required to be reproduced hereunder:-

"1 By this application under Article 226 of the Constitution of India, the petitioner has a grievance to redress as regards the inaction on the part of the police authorities in not registering the FIR pursuant to the complaint lodged by the petitioner in writing to the Police Inspector, Vastrapur Police Station, Ahmedabad dated 19th July 2016 at Annexure: "A" to this petition (page - 12).

Page 30 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022

R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 2 The Police Inspector, Vastrapur Police Station, Ahmedabad shall look into the complaint and take a decision whether the same discloses commission of any cognizable offence or not. After perusal of the complaint and inquiry, if any, the Police Inspector, Vastrapur Police Station, Ahmedabad is of the view that the same discloses commission of a cognizable offence, then, in such circumstances, the First Information Report be registered forthwith. However, if the Police Inspector, Vastrapur Police Station, Ahmedabad is of the view that no case is made out for the registration of the FIR, then, in such circumstances, the petitioner be informed in writing about the same by giving reasons in brief within a period of fortnight from today.



            3       With the above direction, this
            application           is        disposed               of.         I


                                 Page 31 of 62

                                                              Downloaded on : Sun Dec 25 02:20:22 IST 2022
  R/CR.MA/1279/2017                                        JUDGMENT DATED: 21/09/2022

clarify that I have otherwise not gone into the merits of the matter. Direct service is permitted."

12. The order reflects that on 19.7.2016, an application was addressed to Vastrapur Police Station, Ahmedabad by Sahjanand Palace Cooperative Housing Service Society Ltd. through its Chairman. The Court had directed the Police Inspector, Vastrapur Police Station to look into the complaint and take the decision whether the same discloses commission of any cognizable offence and thereafter, if at all, Police Inspector, Vastrapur Police Station comes to the conclusion of commission of cognizable offence, the First Information Report was required to be registered forthwith and if not then the petitioner was to be informed in writing about the same by giving reasons in brief within a period of fortnight from Page 32 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 the date of the order. The impugned FIR being CR no.I-225/2016 was registered on 24.12.2016 at Vastrapur Police Station, Ahmedabad. It is required to be noted that the Police Inspector of Vastrapur Police Station had earlier filed a report on 6.4.2016 of no criminality in the matter and has referred to the settlement between the developers and the service society. As per the report, respondent no.3 had purchased the property in the year 2011 from Harishbhai Nagjibhai who had purchased the property from the developers in the year 2006 and police has observed that after a long period in 2015, complaint has been given and thereafter, he had settled with the developers before the notary and further the police has observed that the property purchased by the complainant was in resale so the police has observed that it was not Page 33 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 possible that the complainant as the purchaser has not verified the purchase on the basis of the principle of 'purchaser beware'. The police has not believed the allegations of manipulation in the plan copies and has observed that the proceedings have been undertaken by the developers for the land consolidation which is also known to the applicants and the police has also noted of construction being regularized by payment of impact fees to the Government. Hence, the police had come to the conclusion that there was no corroboration to the allegations made by the complainant.

13. Record suggest that Sahjanand Palace Cooperative Housing Service Society Ltd. had filed Special Civil Application no.14484 of 2016 with Civil Application nos.7726/17 and 723/17 and by a judgment and order dated 25.7.2017, the said Special Civil Page 34 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 Application along with other Civil Applications came to be dismissed, wherein the cooperative society had made the prayer in Special Civil Application no.14484 of 2016 for an appropriate writ, order or direction to be issued declaring draft variation in Town Planning Scheme no.37A (Thaltej), Ahmedabad splitting Final Plot no.2 into Final Plot no.2/1 and Final Plot nos.2/2/1 and 2/2/2 as well as splitting Final Plot no.32 and allocation of reserved land of Final Plot no.32/2 in lieu of private land of Final Plot no.2/2/2 in favour of private respondent no.6 as arbitrary and illegal, under the provisions of the Gujarat Town Planning and Urban Development Act, 1976, wherein in Civil Application no.7726 of 2017 was filed under Sections 195 and 340 of the Cr.P.C. read with Sections 193, 199, 200 and 205 to 211 Page 35 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 of the IPC for registration of the complaint against the opponent of the matter, on the ground that the applicant of Civil Application no.723 of 2017 and some officers of the respondent-Corporation were hand-in- glove and that they had approached the Court making a fraudulent statement suppressing the material facts and played fraud with the Court and on that premises, suitable directions were prayed for inquiry and to initiate criminal proceedings in Civil Application no.723 of 2017 for the prayers regarding the development permission and inaction on the part of the respondent- Corporation and therefore, it was prayed to direct the respondent to approve the plan in respect of land bearing survey Nos.2/2/1 and 2/2/2 in T.P. No.37A. Since Special Civil Application no.14484 of 2016 was dismissed, no order was passed in Civil Application Page 36 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 nos.7726 of 2017 and 723 of 2017. The record suggest that Sahjanand Palace Cooperative Housing Service Society Ltd. again filed Special Civil Application no.13578 of 2019 with the following prayers:-

"(A) YOUR LORDSHIPS may be pleased to issue writ of mandamus or any other appropriate writ to set aside the order dated 17/7/2019 passed by Respondent no.2 at ANNEXURE-A; and issue an appropriate writ, order or direction, to the Respondents to complete the necessary formalities in accordance with Section 70 and other provisions of the Act to remove the error, irregularities in the preliminary T.P. Scheme No.37/A (Thaltej) qua Final Plot No.2/1, 2/2/1, 2/2/2, 32/1 & 32/2;

(B) YOUR LORDSHIPS may be pleased to direct the Respondents not to make the Final T.P. Scheme No.37/A (Thaltej) qua Final Plot No.2/1, 2/2/1, 2/2/2, 32/1 & 32/2, pending Page 37 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 the admission, hearing and final disposal of this petition;

(C) YOUR LORDSHIPS may be pleased to pass such other and further order as the nature and circumstances of the case may be required."

14. It was submitted during hearing of Special Civil Application no.13578 of 2019 by the members of the cooperative society that TPO has fraudulently proposed to sub-divide F.P. no.32, admeasuring 2962 sq. mtrs. in Final Plot nos.32/1 and 32/2, admeasuring 790 and 2132 sq. mtrs. respectively. Similarly, Final Plot no.2 admeasuring 7703 sq. mtrs. is subdivided into Final Plot Nos.2/1, 2/2/1 and 2/2/2.

15. It was submitted that the authorities had sanctioned the development permission and layout plan for the scheme of 50 residential tenements on the land bearing consolidated Page 38 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 Final Plot No.2+6+(12+13)/1 of the said Town Planning Scheme subject to submission of N.A. permission for the land bearing original plot under Section 65 of the Gujarat Land Revenue Code, 1879. On submission of N.A. permission for the land bearing survey Nos.500/1, 500/2 and 500/3, sanctioned layout plan was issued by the competent authority and development permission was granted for carrying out construction of 13 tenements. Thereafter, the authority has sanctioned revised layout plan for 48 residential tenements proposed on the land bearing aforesaid Final Plots in lieu of the original plot with special conditions, wherein part of the Final Plot no.2 was denoted as "land without N.A." marked with hash (#) and the 5 tenements numbered as B-1, B-28 to B-31 were denoted as "Existing work to be removed". After Page 39 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 hearing both the sides, it was held in Paragraphs 28, 29 and 30 as under:-

"28. Keeping in view the aforesaid decisions, upon which, the reliance is placed by the learned advocates appearing for the parties, if the facts and circumstances of the present case as discussed hereinabove are examined, it can be said that under Section 70 of the Act, powers are given to the authority to apply in writing to the State Government for variation of the scheme, if the appropriate authority considers that the scheme is defective on account of any error, irregularity or any informality. If ultimately, the appropriate authority considers that the scheme is defective on account of the reasons which are stated in Section 70 of the Act, then it is the appropriate authority who has to move an application for the purpose of Page 40 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 variation of the scheme. The petitioners cannot as such pray for directing the authority to vary the scheme and hence, such a prayer considering the scheme of the Act cannot be granted.

                    At      this            stage,           it         is
           pertinent           to          note           that        the
           petitioners          filed               the     petition
           being         Special         Civil           Application

No.14484 of 2016 challenging the action of the Town Planning Officer dividing Final Plot No.2 into different final plots. During the pendency of the said petition, the State Government sanctioned the preliminary town planning scheme approving the division of Final Plot No.2 made by the Town Planning Officer and, therefore, the petition was amended by petitioners whereby Notification issued by the State Government was also challenged. After considering the relevant aspects, this Court dismissed the petition vide order Page 41 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 dated 25.07.2017. The said order is not set aside by the Division Bench of this Court. On the contrary, the petitioners had withdrawn the said appeal.

29. Thus, now on the ground of rejection of application filed under Section 70 of the Act on the grounds, which were also raised in the first round of litigation, the petitioners cannot be permitted to re-agitate the same issue before this Court. Even on merits also, this Court has examined the reasoning recorded by respondent No.2 while rejecting the appeal filed by the petitioners under Section 70 of the Act. Respondent No.2 has in detail discussed each and every contentions raised by the petitioners and, thereafter, held that there is no illegality, impropriety and informality as alleged by the petitioners. Thus, in the facts and circumstances of the present case, no interference Page 42 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 is required in the impugned decision taken by respondent No.2.

30. In view of the aforesaid, this petition is dismissed. Rule is discharged. The interim relief, granted earlier, shall stand vacated."

16. Thereafter, Sahjanand Palace Cooperative Housing Service Society Ltd. filed Letters Patent Appeal no.1768 of 2019 against the order of the learned Single Judge dated 21.10.2019 passed in Special Civil Application no.13578 of 2019 and the said Letters Patent Appeal came to be dismissed with an observation that no case on merits is in favour of the appellant. The appeal was dismissed with cost of Rs.5 lac laid down on Sahjanand Palace Cooperative Housing Service Society Ltd.

Page 43 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022

17. After series of civil litigations, while raising all the disputes, no reliefs were granted to Sahjanand Palace Cooperative Housing Service Society Ltd. and lastly, cost of Rs.5 lac was laid down by order dated 11.11.2019 passed in Letters Patent Appeal no.1768 of 2019.

18. The issues raised by the complainant-present respondent no.3 as individual person would not survive. The Court on 13.12.2016 had directed the police to verify whether there was any commission of cognizable offence. The police had earlier filed a report of no criminality on 6.4.2016. All the issues of consolidation, regularization and payment of impact fees were considered in the civil litigations.

19. In the present case, before the learned Chief Judicial Magistrate in Criminal Inquiry no.52 of 2015, now when protest Page 44 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 petition had been filed by the complainant, he had all the opportunity to present his case before the learned Metropolitan Magistrate to convince the Court showing the criminality of the alleged accused.

20. Section 210 of the Cr.P.C. is a procedure to be followed when there is a complaint case and police investigation in respect of the same offence. Accordingly, when in a case instituted otherwise than on a police report i.e. when the case is registered on a complaint case, it is made to appear to the Magistrate during the course of inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the Page 45 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 investigation. Sub-section (1) of Section 210 of Cr.P.C. relates to calling for report from the investigating officer. Here in this case, after registering Criminal Inquiry no.52 of 2015, the police report was called for under Section 202 of the Cr.P.C. and on the basis of the report, the complainant was called to file his objections and protest petition was registered. The object of Section 210 of Cr.P.C. is to ensure that private complaints do not interfere with the work of justice, and it prevents harassment to the accused twice and it obviates anomalies which might arise from taking cognizance of the same offence more than once.

21. While during the course of calling for report, if the report is made by the investigating officer under Section 173 and on such report, cognizance of the offence is Page 46 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 taken by the learned Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try the complaint case and the case arising from the police report as if both the cases were instituted on police report. While here in this case, the police had filed no criminality report. Hence, no situation arose before the learned Magistrate to consider the case on the police report, and as per the provision of sub-section (3) of Section 210, if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of offence on the police report, the Magistrate shall proceed with the inquiry or trial which was stayed by him in accordance with the provisions of the Cr.P.C. Thus, very Section 210 of Cr.P.C. clarifies the position between the complaint Page 47 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 case and a report filed by the investigating officer. In the present case, prior to the registration of impugned FIR, the complaint case was still on the stage of hearing of protest petition of the complainant where all the scope would be open to get the protest petition treated as complaint and proceed for hearing under Section 202 of the Cr.P.C.

22. In the case of Amish Devgan Vs. Union of India, reported in 2020 SCC OnLine SC 994, it has been held as under:-

"28...The law concerning multiple criminal proceedings on the same cause of action has been analyzed in a judgment of this Court in TT Antony v. State of Kerala ("TT Antony"). Speaking for a two judge Bench, Justice Syed Shah Mohammed Quadri interpreted the provisions of Section 154 and cognate provisions Page 48 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 of the CrPC including Section 173 and observed:

"20...under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC, only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus, there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other Page 49 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC."

The Court held that "there can be no second FIR" where the information concerns the same cognisable offence alleged in the first FIR or the same occurrence or incident which gives rise to one or more cognisable offences. This is due to the fact that the investigation covers within its ambit not just the alleged cognisable offence, but also any other connected offences that may be found to have been committed. This Court held that once an FIR postulated by the provisions of Section 154 has been recorded, any information received after the commencement of investigation cannot form the basis of a second FIR as doing so would fail to comport with Page 50 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 the scheme of the CrPC. The court observed:

"18...AII other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 CrPC. No such information/ statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of CrPC."

This Court adverted to the need to strike a just balance between the fundamental rights of citizens under Articles 19 and 21 and the expansive power of the police to investigate a Page 51 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 cognisable offence. Adverting to precedent, this Court held:

"27...the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or Page 52 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."

(Emphasis supplied) The Court held that barring situations in which a counter-case is filed, a fresh investigation or a second FIR on the basis of the same or connected cognisable offence would constitute an "abuse of the statutory power of investigation"

             and       may      be       a     fit    case      for        the
             exercise            of          power     either         under

Section 482 of the CrPC or Articles 226/227 of the Constitution."

23. In Mohammed Ibrahim and others v. State of Bihar, reported in (2009) 8 SCC 751, the Apex Court has explained the concept of "false documents" in the following terms:-

"14. An analysis of Section 464 of Page 53 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 the 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 persons, 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 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 Page 54 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, knows the contents of the document or the nature of the allegations.

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 practising deception, or from a person not in control of his senses."

24. In view of the observation in the above-

referred case, the law on the same cause of action has been analyzed in the case of 'T.T. Antony'. Thus, unless the FIR is a counter case filed in connection with the same or connected cognizable offence alleged to have been committed in course of same transaction, fresh investigation by the Page 55 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 police in respect of the same incident, giving rise to one or more cognizable offences is sheer abuse of the statutory power. Sweeping power of investigation would not permit the investigating authority to vex the citizen each time some new facts are brought to notice, in connection with the same alleged offence. The officer in charge of a police station has not only to investigate, not merely the cognizable offence reported, but also other connected offences in course of the same transaction and same occurrence. In case, once the officer in charge of Police Station finds no criminality in the alleged facts, then on change of officer of the Police Station, there can be no fresh investigation on the same complaint, more so when earlier officer had reported no criminality to the Magistrate concerned.

Page 56 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022

25. The protest petition by the complainant as it appears raises issues regarding development permission, about settlement between the complainant, his witnesses and the developers, even about consolidation application and other terms of settlement, to dispute that till the date, the developers have not performed accordingly, hence, has raised contention that merely there is a settlement, the inquiry cannot be revoked. In that context, whether the same could be done or not is open for the learned Magistrate to decide. Further in the protest petition, the complainant contends that he had verified about title of the property he purchased and relying on accused nos.1 to 14, he had not made further inquiry. The police in his report has rightly observed the concept of 'buyer's beware'. The complainant has not purchased the property Page 57 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 from the developers so how far they became answerable to the complainant is a dispute to be raised in civil nature. Regularization process of five bungalows was in way, necessary procedure were undertaken and what was to be done by the developers was decided by way of settlement deed with the cooperative society, which is a service society of which the complainant is the member. Any cheating or fraudulent act during the building of the bungalows are for the concerned authorities to verify and if necessary to regularize. It is not the police who decides that, nor the complainant as an individual would have authority to question the decision of authority if not permissible in law. Necessary impact fees have been recovered from the builders. The settlement deed is notarized on 15.6.2015 while the protest petition is dated Page 58 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 30.7.2019. Affidavits signed in the name of late Dudhiben S. Patel alleged to be forged is dated 1.5.2013, 2.7.2013 and 30.8.2013. It is stated that disputed handwritings are sent for FSL. The affidavits had been submitted to the authorities concerned, the persons on whose behalf the affidavits were submitted for necessary process, if have grievance, they were required to raise their dispute before the authorities from whom the cooperative society or the individual members have derived benefit. Issues of genuineness of documents are for the authorities to decide, even on the sole opinion of handwriting expert FIR could not be registered. For that observation, reliance can be placed on the judgment of Hon'ble Supreme Court in Rajeshbhai Muljibhai Patel & Ors. Vs. State of Gujarat & Anr., reported in (2020) 3 SCC 794. Page 59 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022

26. In Mohammed Ibrahim (supra), it was held that fraud is neither defined in IPC nor has it been made an offence punishable under the Code or any other law, unless that fraudulent Act is specified to be an offence under the Code or other law.

26.1 If what is executed is not a "false document", then there is no forgery. The affidavits so produced before authorities were for regularization process to be fulfilled by the developers in accordance to the settlement deed. Grievance raised by the society had been rejected by the orders in the civil proceedings before this Court, which has been referred hereinbefore. The members of the society have received the benefits as agreed upon by the settlement deed.

27. In Dr. Vimla Vs. Delhi Administration, AIR 1963 SC 1572, the Apex Court explained the Page 60 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 meaning of the expression "defraud" thus:-

"14. ...the expression 'defraud' involves 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."

28. Thus, in view of the above discussions and observations and taking into consideration the facts and circumstances of the case, the Page 61 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022 R/CR.MA/1279/2017 JUDGMENT DATED: 21/09/2022 petition is allowed. The proceedings of FIR being CR No.I-225/2016 dated 24.12.2016 registered with Vastrapur Police Station and all the consequential proceedings initiated pursuant thereto are quashed and set aside qua the present applicants.

(GITA GOPI,J) Mr. Shah, learned advocate for the respondent no.3 prays for stay of this judgment for a period of eight weeks.

Considering the facts and circumstances of the case, the operation of judgment is stayed for a period of eight weeks.

(GITA GOPI,J) Maulik Page 62 of 62 Downloaded on : Sun Dec 25 02:20:22 IST 2022

Unlock Advanced Research with PRISMAI

Gujarat High Court