Gujarat High Court
Manubhai Bababhai Patel vs State Of Gujarat on 13 October, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/308/2019 ORDER DATED: 13/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 308 of 2019
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MANUBHAI BABABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR.SANAT B PANDYA(6976) for the Applicant(s) No. 1
MR J G VAGHELA(3971) for the Respondent(s) No. 2
MR RAJA RAM BAJPAI(7188) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3,4
MS. MONALI BHATT, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 13/10/2021
ORAL ORDER
1. Rule. Ms. Monali Bhatt, learned Additional Public Prosecutor waives service of notice of rule on behalf of respondents- State and Mr. Raja Ram Bajpai, learned advocate waives service of notice of rule on behalf of respondent No.2.
2. This application has been filed under section 482 of the Code of Criminal Procedure for quashing and setting aside the FIR being C.R. No. I-79 of 2014 registered with Dabhola Police Station, Dist.: Gandhinagar for offfences punishable under sections 465, 467, 468, 471 and 114 and the proceedings initiated pursuant thereto.
3. The petitioner states that he is citizen of United States of America and residing at USA since last 35 years with his family. His father has passed away in the year 2005. The allegation in the matter is that after the death of his father, Bababhai Patel who is original owner of the land Survey No. Page 1 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 311, situated at Village Prantiya, District: Gandhinagar, a false pedigree was drawn and the name of the present petitioner was mutated for the land Survey No.311.
3.1. It is stated that the father of the petitioner died at Beltimore W.C. USA. The complainant states that he has purchased the land from Nilesh Babubhai Patel, who had earlier purchased from Hitesh Balubhai Patel, who is alleged to be Power of Attorney holder of the present petitioner and heir of present petitioner.
4. Mr. Sanat Pandya, learned advocate for the petitioner submitted that none of the sisters have taken any objection to the Pedigree since the petitioner had become the owner of the property by way of Will. The said Will was executed by the father on 3.6.1999 and Mr. Pandya states that the said fact has been affirmed by way of declaration of sister Lalitaben D/o. Bababhai Bhagwandas Patel and W/o. Chandrakantbhai Patel. Mr. Pandya submitted that the complainant has no right to make any dispute regarding the Pedigree drawn by way of affidavit before Notary. Mr. Pandya submits that father of the petitioner died on 4.1.2005 and the mother died on 18.2.1986. Mr. Pandya submits that Pedigree before the Talati, Naroda on 5.3.2008 refers to the petitioner as the only heir of family. In view of the Will executed in his favour and in pursuance of the Will executed by the parents, the petitioner would be the only heir of the property. Mr. Pandya submitted that the Power of Attorney was executed in USA in favour of Hiteshbhai Balubhai Patel but was never in force and it was cancelled and inspite of having that knowledge, after 4 years he paid stamp duty in India and misused the same and executed sale-deed in favour Page 2 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 of Mr. Nilesh Patel who in turn sold the said property to complainant Ashokbhai Becharbhai Patel. Mr. Pandya submitted that the petitioner along with sister had filed Special Civil Suit No. 245 of 2010 challenging the sale-deed, that he has not received any consideration money. The petitioner thereafter after filing of the Suit, left India in 2011. Mr. Pandya submitted that after lapse of about 3 years, the FIR has been registered against the petitioner at Dabhola Police Station. Mr. Pandya states that earlier the present petitioner had moved this Court by filing Criminal Misc. Application No. 14603 of 2018, which came to be withdrawn and subsequently the petitioner made a written complaint to DSP, Gandhinagar who directed the LCB PI to investigate the same and to file report to him and to utter surprise, the LCB PI called upon the complainant to lodge the present impugned FIR. Mr. Pandya submitted that the complainant has no knowledge of the facts in the FIR. Pending investigation of the written complaint, the petitioner had filed an anticipatory bail application before Gandhinagar District and Sessions Court which was allowed by the learned Sessions Judge vide order dated 28.9.2018. Mr. Pandya submitted that no ingredients under Section 465, 467, 468, 471 and 114 would get attracted against the present petitioner since the Pedigree which has been executed is a personal affair of the family and the same was drawn in view of the Will executed by the parents of the petitioner and none of the Sisters had raised any dispute regarding Pedigree which came to be executed since it was in accordance to the Will of the father.
4.1 Mr. Pandya submitted that the Power of Attorney, though was cancelled, Hiteshbhai Balubhai Patel had misused the Page 3 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 same and executed the sale deed in favour of Nilesh Patel who thereafter sold the property to the complainant, for that petitioner has taken necessary civil action thus as an counterblast the impugned FIR.
5. Mr. Raja Ram Bajpai, learned advocate for the complainant- respondent No.2, submitted that the complainant is owner and in possession of the land bearing Survey No. 311,which was purchased from Nileshbhai Patel, who had purchased the said parcel of land from Hiteshbhai Patel who is Power of Attorney holder of present petitioner. Mr. Bajpai submitted that the present petitioner have 4 sisters namely (i) Lalitaben (ii) Padmaben (iii) Ilaben and (iv) Bakulaben, and inspite of the fact that though the sisters are legal heirs of the deceased parents, the petitioner has made only himself and Leelaben as a legal heir of his father by tendering false and forged pedigree along with false Affidavit before the revenue authority and declared him as the only owner and legal heir of the property and cheated the present complainant. Mr. Bajpai submitted that the complainant placing his reliance on the Pedigree has purchased the land and after grabbing hard earned money of the complainant, the petitioner ran away to USA and has played fraud with not only one authority but with various government authority. He further stated that false Pedhinaama along with false affidavit was not only before revenue authority but also before City Survey Superintendent- 1, Ahmedabad.
6. The petitioner claims the heirship of the property by way of Will executed by the parents. None of the sisters have raised any dispute to the execution of the Pedigree. The record shows Page 4 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 that one of the Sister Lalitaben had affirmed the fact of the petitioner being heir, by way of Will executed by the parents in favour of the petitioner. The Pedigree is not a false document nor can be considered as a forged document as was drawn by Talati- Naroda Taluka City District Ahmedabad. The petitioner himself has executed the affidavit and in view of his statement, the Pedigree came to be drawn which shows him as a heir of his father.
7. The Certificate of Cremation, Baltimore Washington Crematory, Inc., shows that the date of death of petitioner's father as 4.1.2005, the mother died on 18.2.1986 and on the day when the Pedigree was drawn, the age of the petitioner is reflected to be 67 years.
8. Ms. Monali Bhatt, learned APP referring to the report of the Police Sub-Inspector, Dabhoda Police Station submits that the petitioner Manubhai Bababhai Patel during the period between 4.1.2005 to 13.7.2010 had sold the property being Survey No. 311 by taking the consideration and for the Survey No. 283 and 284 Naroda, he has shown himself as the only heir by placing false affidavit and on that basis hat got executed the false pedigree and thereafter has sold the property and thereafter has executed affidavit for a Pedigree reflecting the fact of other also being heirs of the father. It is alleged that to cause financial loss to the complainant, falsely a Civil Suit has been filed to affect the right of the complainant. Ms. Monali states that the petitioner during the course of investigation could not be found and thus 'A' Summary report has been filed before the concerned Court which means that as and when the petitioner is found and available, the proceedings could be Page 5 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 initiated against him.
9. This Court (by the Coram of Justice J.B. Pardiwala), in case of Gulabbhai Manibhai Desai and 2 v. State of Gujarat and 1, in Criminal Misc. Application No. 13221 of 2013 had occasion to deal with the FIR with an allegation of Pedigree being false documents. The Court by placing reliance on Mohammed Ibrahim and others v. State of Bihar and another, reported in (2009) 8 SCC 751, relied on the observation made in the said judgment as follows:
"13. The document in question, which, according to the prosecution, is a false document is a 'Pedhinama' i.e. the family pedigree in the form of a panchnama drawn by the Talati-cum- Matri. The law in this regard is no longer res integra. A mere wrong statement or wrong information furnished in a document will not constitute forgery within the meaning of Section 463 of the Indian Penal Code so as to render a document a false document within the meaning of Section 464 of the Indian Penal Code. The position of law has been succinctly explained by the Supreme Court in the case of Mohammed Ibrahim and others vs. State of Bihar and another [(2009) SCC 751]. I may quote the relevant paras as under:
"9. Let us first consider whether the complaint averments even assuming to be true make out the ingredients of the offences punishable either under Section 467 or Section 471 of Penal Code.
10. Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment Page 6 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be as forged document, shall be punished in the same manner as if he had forged such document.
11. Section 470 defines a forged document as a false document made by forgery. 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.
12. 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 of a document or the authenticity of the digital signature, With the intention of causing it to be believed that such Page 7 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 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 alteration; or Thirdly. - Who dishonestly or fraudulently causes any person to sign, seal, executed 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.
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.
Page 8 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022R/SCR.A/308/2019 ORDER DATED: 13/10/2021 (Note : The words 'digital signature', wherever it occurs were substituted by the words 'electronic signature' by Amendment Act 10 of 2009)".
13 The condition precedent for an offence under Section 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 accused.
9.1 The sections invoked in the present case are 465, 467, 468, 471 and 114 of IPC. In Mohammed Ibrahim and others v. State of Bihar (supra), the Apex Court has explained the concept of "false documents" in the following terms:
14. An analysis of Section 464 of Penal Code shows that it divides false documents into three categories :
1. The first is where a person dishonestly or frudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, Page 9 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 alters a document in any material part, without lawful authority, after it has been made or executed by either himself or by any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration. In short, a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
9.2 In this context, it would be relevant to refer to the observations made by the Apex Court in paragraphs - 15 to 17 in Mohammed Ibrahim's case (supra):
15 The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said Page 10 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 sale deeds) would bring the case under the first category.
16 There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona-fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of 'false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."Page 11 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022
R/SCR.A/308/2019 ORDER DATED: 13/10/2021
10. In view of the principles explained by the Supreme Court, the Coordinate bench (Coram: Hon'ble Mr. Justice J.B.Pardiwala) has decided that the 'Pedhinama' cannot be said to be false within the meaning of Section 464 so as to constitute the offence punishable under Sections 465, 467, 468, 471 of the IPC.
11. Herein in his case, the pedigree has not been disputed by the sister of the petitioner. The petitioner has shown himself as heir to the property by way of Will executed by the Parents, none of the sisters have disputed that fact rather one of the sisters Lalitaben D/o. Bababhai Bhagwandas Patel and W/o. Chandrakantbhai Patel has affirmed the fact of execution of Will by parents in favour of the petitioner. Special Civil Suit No. 245 of 2010 has been filed by the present petitioner for getting declaration on the ground that the power which was executed in favour of Hiteshbhai Balubhai Patel was cancelled and as stated by Mr. Pandya, learned Advocate for the petitioner that after about 4 years, the said Hiteshbhai Patel by paying the stamp duty on the Power of Attorney in accordance with the provision in India, misused the same and executed the sale- deed in favour of Nileshbhai Patel, who thereafter sold it to complainant.
12. Here, at the time of execution of Pedhinama (Pedigree), there was no intention of the present petitioner to misuse the same as it was under the bonafide expectation and belief of the process of law to be the only heir of the parent by way of their Will. The sisters have not agitated the said fact. It was for the complainant, as a purchaser of the property to verify the title. He was rather required to bonafidely inquire about the Page 12 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 title of the property. The complainant has purchased the property from Nileshbhai Patel. There is no direct sale by this petitioner to the complainant. There is no case of complainant of being directly deceived by the present petitioner as the complainant has purchased the property from Nileshbhai Patel, who was the prior purchaser who had in turn, purchased the property from Hiteshbhai Balubhai Patel and whose authority has been challenged by the present petitioner. Further 'Pedhinama' is a document drawn by the Talati, so the very document of 'Pedhinama' is not forged. There is no case of any fraud by the petitioner in relation to the complainant. The FIR is gross abuse.
13. A three-Judge Bench in in case of State of Karnataka vs. M. Devenderappa and another, reported in 2002 (3) SCC 89, had occasion to consider the ambit of Section 482 Cr.P.C. By analysing the scope of Section 482 Cr.P.C., this Court laid down that authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice the Court has power to prevent abuse.
14. In State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court has 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 Page 13 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the Page 14 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022 R/SCR.A/308/2019 ORDER DATED: 13/10/2021 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."
15. Considering the facts of the case and the principle laid down by the Apex Court in the above decisions, this Court is of the opinion that the complaint filed by the respondent No.2 is a clear misuse and abuse of the process of law and deserves to be quashed and set aside in exercise of the inherent powers under Section 482 of Cr.P.C.
16. For the foregoing reasons, the petition is allowed. The impugned FIR being C.R. No. I-79 of 2014 registered with Dabhola Police Station, Dist.: Gandhinagar for offfences punishable under sections 465, 467, 468, 471 and 114 and the proceedings initiated pursuant thereto are hereby quashed and set aside. Rule is made absolute.
Direct Service is permitted.
(GITA GOPI,J) SAJ GEORGE Page 15 of 15 Downloaded on : Sun Jan 16 23:57:09 IST 2022