Gujarat High Court
Mafat Mohanbhai Parmar vs State Of Gujarat on 20 April, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/18170/2012 JUDGMENT DATED: 20/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18170 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed to see the No
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment No
?
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India or any order made
thereunder ?
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MAFAT MOHANBHAI PARMAR & 1 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2
MR BB NAIK SENIOR ADVOCATE WITH MR PANKAJ S CHAUDHARY(3269)
for the Respondent(s) No. 2
MS MAITHILI D MEHTA ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 20/04/2022
ORAL JUDGMENT
1. Heard learned Advocate Mr. Ashish Dagli on behalf of the petitioner, learned Senior Advocate Mr. B.B. Naik with learned Advocate Mr. PankaJ Chaudhary on behalf of respondent no.2 and learned Additional Public Prosecutor Ms. Maithili D. Mehta on behalf of respondent no.1 - State.
2. By way of this petition, the petitioner prays for quashing of FIR being C.R. No. I-198 of 2012 registered with Panigate Police Station, District:
Vadodara by respondent no.2 on 10.12.2012 for offences punishable under Sections 406, 420, 465, 467, 471 and 114 of the Indian Penal Code.Page 1 of 14 Downloaded on : Sat Dec 24 15:16:11 IST 2022
R/CR.MA/18170/2012 JUDGMENT DATED: 20/04/2022
3. The allegations levelled in the FIR being that the complainant had inter alia come into contact with land owners of one land bearing survey number 579 /2 Danteshwar Village and wheres since it was decided by the land owners to sell the land to the complainant and whereas some amount had also been decided as a consideration and whereas by way of registered sale-deed no. 7255,the land had been sold in favour of the complainant. It appears that later the complainant had come to know that prior to sale of the land in favour of the complainant, there was a document existing in favour of the present petitioners and whereas it is alleged by the complainant that the said document had been fraudulently created and broadly making allegations of forgery etc the impugned FIR had been filed .
4. Learned Advocate Mr. Dagli would challenge the FIR mainly by submitting that the FIR is nothing but an abuse of process of law more particularly in view of the fact that very selfsame complainant had preferred a Civil Suit being Special Civil Suit No. 336 of 2006 before the learned Civil Judge against the petitioner herein inter alia praying for setting aside the document dated 07.05.2001 in favour of the present petitioner.
5. Learned Advocate Mr. Dagli would submit that the complainant, having known about the deed in question as far as as back in the year 2006, had waited for approximately six years to file the present impugned FIR.
Learned Advocate would submit that under such circumstances merely on the ground of delay of filing of the FIR, the impugned FIR may be quashed by this Court. Learned Advocate would further draw the attention of this Court to complaints filed by the land owners against the petitioner as well as the also against the complainant. Learned Advocate would submit that in one of the complaint being Criminal Inquiry Case No. 1839 of 2008, after the police report had been filed the complaint rejected by the learned Court Page 2 of 14 Downloaded on : Sat Dec 24 15:16:11 IST 2022 R/CR.MA/18170/2012 JUDGMENT DATED: 20/04/2022 and whereas another complaint being Criminal Inquiry Case No. 1503 of 2007 filed by Laxmiben Rameshwar Mali i.e. one of the land owners and signatory of the deed in question is still pending consideration.
6. Learned Advocate Mr. Dagli would submit that having regard to the fact that the said complaint had been preferred by the land owner in the year 2007 and whereas since the impugned FIR with regard to the same transaction, which is questioned in the complaint having been filed after approximately 5 years of the same, therefore, also more particularly since the said complaint is pending consideration, this Court may quash the impugned FIR. Learned Advocate Mr. Dagli would thereafter draw the attention of this Court to statements of the land owners at various stages and according to learned Advocate Mr. Dagli , the stand of the land owners, has not been clear all throughout. Learned Advocate would submit that while in a declaration which was of the year 2006, the land owners had accepted the fact they had sold the land to the present petitioners, and such declaration also having been placed in civil proceedings, learned Advocate would submit that the allegations made by subsequent purchasers that based upon fraudulent document, the land had been shown to be sold to the petitioners, may not be permitted to stand.
7. Learned Advocate Mr. Dagli would thereafter submit that while the civil proceedings are pending in the Court, as preferred by the present complainant and also as preferred by another interested party, the present impugned FIR, is nothing but an abuse of the process of law more particularly an arm twisting tactic just to ensure that present petitioners would succumb to the wishes of the complainant. Learned Advocate would thus request this Court to quash the impugned FIR.
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8. As against the same learned Senior Advocate Mr. Naik would point out that pendency of earlier complaint, may not be a bar for filing of subsequent FIR. Learned Senior Advocate would submit that as such the facts of the case would have to be perused to come to a particular conclusion and whereas learned Senior Advocate would submit that insofar as the complaint which is lodged by one of the original land owners i.e Laxmiben Mali which is stated to be pending at present,the present petitioners had questioned the same by filing quashing petition before this Court being Criminal Misc. Application No. 6864 of 2007 and whereas learned Senior Advocate would rely upon order dated 17.11.2009 in the said matter and would submit that even perusal of the said order would reveal that even before this Court, in the earlier round of proceedings, the petitioner had attempted to enter into some smart tactics. Learned Senior Advocate would submit that for the very selfsame allegations, the complaint had been filed and whereas while this Court had not entertained a quashing petition against the said complaint more particularly containing the same allegation in the present FIR, therefore learned Senior Advocate would submit that this Court may not exercise its discretionary jurisdiction. Insofar as delay in filing of the FIR is concerned, learned Senior Advocate would submit that there is no general proposition of law that delay would always be fatal when the FIR is filed at belated stage. Learned Senior Advocate would submit while undoubtedly at the first instance the complainant had filed a civil suit, raising his grievance against the deed in question, and at that time he had also realized that there was a complaint pending which was preferred by the original land owner against the petitioners. Learned Senior Advocate would submit that since later on the complainant realized that the complaint proceedings are not moving any further therefore the complainant was constrained to file the impugned FIR.
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9. Learned Senior Advocate would at this stage draw the attention of this Court the judgement of the Hon'ble Apex Court in case of Kapil Agrawal and another vs. Sanjay Sharma reported in 2020 (5) SCC 524. Learned Senior Advocate referring to the judgement would submit that in a similar scenario, where an FIR had been filed after a complaint had been preferred, for the selfsame allegation, the Hon'ble Apex Court had inter alia explained the scope of Section 210 of Cr.P.C. and has held that when after the complaint is instituted, if it appears to the Magistrate that an investigation by the police is in progress in relation to the offence which is subject matter of the inquiry or trial by him then the Magistrate should stay the proceedings of such inquiry and call for report on the matter from the police conducting investigation. According to the learned Senior Advocate referring to the said judgement it is also provided that if a report is made by the Investigating Officer under Section 173 of the Cr.P.C. and on such report cognizance of any offence is taken by the 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 out of the police report together as if both the cases were instituted on a police report. Learned Senior Advocate would submit that while the investigation, may not have proceeded on account of pendency of the present petition and whereas it is on account of such facts that the learned Magistrate taking up proceedings of Criminal Inquiry Case No. 1503 of 2007 preferred by one of the land owners, had not called for a report from the Investigating Officer. Learned Senior Advocate would submit that as such, once such a report is called for by the learned Magistrate in the criminal inquiry case initiated by the original land owner, then the case arising from the present FIR and the complaint, would be tried together by the learned Magistrate and as such no prejudice would be caused to the complainant. Learned Senior Advocate would further rely upon observations of the Hon'ble Apex Court at paragrah no.1 Page 5 of 14 Downloaded on : Sat Dec 24 15:16:11 IST 2022 R/CR.MA/18170/2012 JUDGMENT DATED: 20/04/2022 7 and 18 of the said judgement, the said observations being relevant for the present purpose are quoted hereinbelow for benefit:
"17. Thus, merely because on the same set of facts with the same allegations and averments earlier the complaint is filed, there is no bar to lodge the FIR with the police station with the same allegations and averments.
18.. However, at the same time, if it is found that the subsequent FIR is an abuse of process of law and/or the same has been lodged only to harass the accused, the same can be quashed in exercise of powers under Article 226 of the Constitution or in exercise of powers under Section 482 Cr.P.C. In that case, the complaint case will proceed further in accordance with the provisions of the Cr.P.C."
10. As far as above quoted observations, learned Senior Advocate would submit that while there is no bar against filing of an FIR, on the very same set of facts with regard to the very same allegations and averments made earlier in a complaint filed, yet the only thing the Court may be required is to examine while exercising jurisdiction under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure would be to find out whether subsequent FIR is abuse of the process of law. Learned Senior Advocate would submit that since the complaint case was not proceedings, more particularly in view of the fact that in a quashing petition preferred by the present petitioners against the said complaint there appeared to be interim relief which had been granted and which later on had been vacated vide an order of the year 2009 and it is on account of such fact that the FIR had been filed.
11. Learned Senior Advocate insofar as the submission with regard to filing of civil suit by the first informant would further submit that as such the proposition of law that a civil case and criminal complaint cannot be permitted to proceed simultaneously not being the right proposition of law has been deprecated by the Hon'ble Apex Court in various judgements reference to which would be taken hereinbelow.
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12. As against the submission made by learned Advocates for the parties, learned APP would forward a report by the Directorate of Forensic Science where the document in question being an irrevocable Power of Attorney had been verified more particularly with regard to signatures made in the said Power of Attorney by the original land owners as compared to the specimen signatures of the said land owners. Learned APP would submit that the Directorate of Forensic Science, had clearly opined that that the signatures of the land owners as mentioned in the document concerned, are not signatures of the persons concerned. It would be relevant to mention at this stage that while the Directorate of Forensic Science had given a definite opinion about the signatures made in the deed in question, the Directorate of Forensic Science did not give any specific opinion with regard to the thumb impression of the parties concerned. Learned APP Ms. Mehta would submit that in view of such a clear report by the Directorate of Forensic Science whereby it is stated that the signatures on the deed in question are not of the land owners, therefore the fact of the FIR being filed belatedly etc. would pale into insignificance. Learned APP would submit that FIR is filed inter alia alleging commission of offences of forgery etc. and whereas upon the report by the Directorate of Forensic Science i.e expert body in this regard, the allegations prima facie appear to be justified. Learned APP emphasizing on the opinion of the Directorate of Forensic Science would submit that in view of the opinion, that the signatures do not belong to the alleged signatories as mentioned in the deed in question, therefore, this Court may not interfere in the present impugned FIR. Learned APP would further submit placing reliance upon the submissions made by learned Senior Advocate Mr. Naik that once lodgement/pendency of the present FIR is brought to the notice of the learned Magistrate taking up proceedings of criminal inquiry initiated by one of the land owners which is stated to be pending at present i.e Criminal Inquiry Case No. 1503 of 2007,the learned Page 7 of 14 Downloaded on : Sat Dec 24 15:16:11 IST 2022 R/CR.MA/18170/2012 JUDGMENT DATED: 20/04/2022 Magistrate would call report from the Investigating Officer as per provisions of Section 210 of the Code of Criminal Procedure, whereas the present impugned FIR and criminal complaint would have to be taken together as per the scope of the provision concerned and whereas under such circumstances there would be no prejudice whatsoever caused to the present petitioners. Learned APP would therefore request the Court not to entertain the present petition.
13. As against the same more particularly with regard to the report of the Directorate of Forensic Science learned Advocate Mr. Dagli has relied upon decision of the Hon'ble Apex Court in case of Rajeshbhai Muljibhai Patel and others vs. State of Gujarat and another reported in (2020) 3 SCC 794. Learned Advocate would specifically draw the attention of this Court to paragraphs no. 18 to 22 of the said judgement. Relying upon the said paragraphs, learned Advocate would submit that even in the said case, during the pendency of a summary suit in a complaint under Section 138 of the Negotiable Instruments Act, pending between the parties, when on basis of a report of Hand Writing Expert, one of the parties had filed an FIR, Hon'ble Supreme Court, more particularly observing that since the issue as regards genuineness of the documents where forgery was committed was under consideration of the learned Civil Court therefore filing of the FIR could not be permitted, as the same would prejudice the interest of the parties. Learned Advocate Mr. Dagli has more particularly relied upon observation of the decision of the Hon'ble Apex Court where it has been mentioned in terms of Section 45 of the Evidence Act, opinion of Hand Writing Expert is a relevant piece of evidence but it is not a conclusive evidence. Learned Advocate Mr. Dagli relying upon the said decision more particularly in view of the fact that the original land owners have admitted to their signatures in the documents concerned would Page 8 of 14 Downloaded on : Sat Dec 24 15:16:11 IST 2022 R/CR.MA/18170/2012 JUDGMENT DATED: 20/04/2022 submit that merely because the Directorate of Forensic Science has opined that the signatures in the deed are not of the land owners, this Court may not permit the FIR to proceed ahead. Learned Advocate Mr. Dagli would submit that since the report of the Directorate of Forensic Science is nothing but an opinion of the said body, more particularly since the issue is pending before the learned Civil Court, where it would be open for both the parties, to lead evidence with regard to the genuinity or otherwise of the signatures concerned. Learned Advocate has further relied upon decision of this Court in case of Bipinbhai Dahyabhai Soni vs. State of Gujarat reported in 2019 (1) GLH 165. Learned Advocate would reply upon observations of this Court in paragraphs no. 5, 10, 11 and 12 of the said decision. Learned Advocate would submit that in the instant case, the learned Co-ordinate Bench has inter alia observed that while the powers under Section 482 of Cr.P.C must be exercised in a rare case where it is apparent that there is clear abuse of process of law. Learned Advocate has thereafter relied upon the decision of this Court in case of Sureshkumar Goyal and others vs. State of Uttar Pradesh and another reported in (2019) 14 SCC 318 where the principle with regard to quashing has been reiterated. Learned Advocate would thereafter refer to decision of the Hon'ble Aped Court in case of Kapil Agrawal and another vs. Sanjay Sharma (supra) more particularly paragraph nos. 18, quoted hereinabove, as regards the submission of learned Senior Advocate Mr. Naik on behalf of original complainant.
14. Learned Advocate has also relied upon decision of this Court in case of Bhogilal Jamnadas Kansara vs. State of Gujarat in Special Criminal Application No. 1481 of 2015 dated 31.01.2019. Learned Advocate has inter alia contended relying upon the decision that since the FIR was delayed, more particularly in view of view taken by the Hon'ble Apex Court in case of Kishan Singh (D) Thru Lrs vs Gurpal Singh & Ors reported in 2010 (8) SCC 775 that the impugned complaint being preferred Page 9 of 14 Downloaded on : Sat Dec 24 15:16:11 IST 2022 R/CR.MA/18170/2012 JUDGMENT DATED: 20/04/2022 after substantial delay may not be entertained by this Court.
15. As against the same learned Senior Advocate Mr. Naik would submit that the fact of the allegations as mentioned in the FIR being prima facie true, can be made out from the report of the Directorate of Forensic Incense. Learned Senior Advocate would submit that as far as extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure is concerned, as explained by the Hon'ble Apex Court in case of Kapil Agrawal and another vs. Sanjay Sharma (supra) , referred to by learned Senior Advocate , the FIR can be quashed by this Court if it appears that this is an abuse of process of law or the the same has been lodged to harass the accused. Learned Senior Advocate would submit that the fact of the allegations made in the FIR being prima facie true is fortified from the report of the Directorate of Forensic Science. Learned Advocate would submit that once allegations of cognizable offence as is made in the FIR in normal circumstances the FIR would not be interfered by this Court and whereas in the instant case over and above the allegations of commission of cognizable offences, such allegations are prima facie supported by the report of Directorate of Forensic Science.
16. Learned Senior Advocate would therefore submit that under such circumstances more particularly since it is clear that the FIR is not an abuse of process of law, therefore this Court may not quash the impugned FIR.
17. Heard learned Advocates for the respective parties who have not submitted anything else.
18. At the outset it is required to be noted that law with regard to exercise of powers of this Court under Section 482 of the Code of Criminal Page 10 of 14 Downloaded on : Sat Dec 24 15:16:11 IST 2022 R/CR.MA/18170/2012 JUDGMENT DATED: 20/04/2022 Procedure and under Article 226 of the Constitution of India for quashing of FIR/complaint, was laid down by the Hon'ble Apex Court in case of R.P. Kapur vs. State of Punjab reported in AIR 1960 SCC 866. The said decision of the Hon'ble Apex Court being reiterated in later judgments holds the field till date. The Hon'ble Apex Court in the said decision, has inter alia laid down certain instances which has been followed by the Hon'ble Apex Court in later decisions more particularly in decision of the Hon'ble Apex Court in case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335 . The principles being that allegation in the First Information Report even if they are taken at face value and accepted in their entirety do not constitute offence alleged, the fact of the FIR or the power of the learned Magistrate to take cognizance thereof being barred by any specific provision of law, the allegations made in the FIR or complaint do constitute an offence but there is no evidence coming out even after investigation which would lead to a conclusion in support of the charge, the FIR being filed with a malafide intent of wrecking vengeance upon the accused etc. In the instant case it would be pertinent to mention that the allegations in the FIR taken at face value makes out allegations of commission of cognizable offences. In the instant case it also appears that along with allegations in the FIR, there is a report which has been submitted by the Directorate of Forensic Science, which would state that the signatures contained in the document i.e. the irrevocable power of attorney, between the petitioners and the original land owners, which is the document which is alleged to be forged by way of the impugned FIR, does not contain the signatures of the persons concerned. The opinion has been perused by this Court and whereas it has been opined by the Directorate of Forensic Science after examination that out of total 5 persons three persons had signed the deed and whereas two persons had put their thumb impressions. That said signatures according to the Directorate of Forensic Science, are Page 11 of 14 Downloaded on : Sat Dec 24 15:16:11 IST 2022 R/CR.MA/18170/2012 JUDGMENT DATED: 20/04/2022 not of the persons concerned. In the prima facie opinion of this Court, once an FIR is filed inter alia alleging cognizable offences and whereas later on during course of investigation, the allegations made in the FIR, find support, under such circumstances, it could not be open for the petitioners to contend that the FIR may be quashed, more particularly since the same will be against the principle with regard to quashing as set out in the decision as referred to hereinabove.
19. Furthermore insofar as the submissions made by the learned Advocate Mr. Dagli that the land owners have at some point of time have supported the deed in question and whereas they have also acknowledged as regards their signing on the deed in question, it would be required to be noted, that the stand of the land owners, goes both the ways It is not as if that the land owners have all throughout taken a single stand that the signatures on the deed in question belong to the land owners and whereas there is no forgery of any type committed. As a matter of fact it would be required to be noted that while the first informant herein had filed a civil suit as regards the deed in question in the year 2006, immediately thereafter two of the signatories in the deed in question, had filed complaints inter alia claiming that the signatures in the deed are not their original signatures and whereas as noted hereinabove, insofar as the complaint filed by one of the complainant Laxmiben Mali, the said complaint is still pending consideration of the learned Magistrate.
20. Under such circumstances in the considered opinion of this Court since the wrong stand had been taken by the land owners with regard to the signatures in the deed in question, merely because at some instances, the land owners have supported their signatures in the deed in question, it cannot be held that the report of the Directorate of Forensic Science would Page 12 of 14 Downloaded on : Sat Dec 24 15:16:11 IST 2022 R/CR.MA/18170/2012 JUDGMENT DATED: 20/04/2022 be of no consequence. As a matter of fact as noted hereinabove, since an FIR had been preferred where there are allegations of commission of cognizable offences and since such allegations find support in the report by the Directorate of Forensic Science, merely because the signatories to the document at some point of time, had taken a stand contrary to the allegation in the FIR may not have any bearing on the prayer made by the petitioner for quashing of the impugned FIR.
21. Furthermore insofar as delay in filing of the FIR is concerned, learned Advocate has relied upon by the decision of the Hon'ble Apex Court in case of Kishan Singh (D) Thru Lrs vs Gurpal Singh & Ors reported in 2010 (8) SCC 775 . The Hon'ble Apex Court at paragraph no. 21 has inter alia observed that while the general principle is that the FIR should be filed promptly and whereas delay in lodging the FIR, may not make the complainant's case improbable when delay is properly explained. The Hon'ble Apex Court has further explained that the delay may not be fatal if there is a plausible explanation for the delay in question. The Hon'ble Apex Court has further explained that delay would be fatal when a frustrated litigant who has failed before the Civil Court initiates criminal proceedings just to harass the other side with malafide intent or with an intent to wreaking vengeance on the other party. The Hon'ble Apex Court has also further observed that frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. Insofar Insofar as aspect of delay is concerned, learned Senior Advocate on behalf of the complainant had submit that delay in filing of the FIR was on account of the fact that though a complaint had been lodged by one of the land owners, as regards the transaction in question, yet the said complaint was not proceedings ahead and to ensure that the present petitioners who had prima facie being committed fraud are brought to the Page 13 of 14 Downloaded on : Sat Dec 24 15:16:11 IST 2022 R/CR.MA/18170/2012 JUDGMENT DATED: 20/04/2022 fact the complainant had filed the impugned FIR. Prima facie this Court finds the reasoning for delay given by complainant plausible. Furthermore what would be relevant to mention here is that while the FIR may have been filed after some delay, but at the same time the fact that later on after the investigation the fact of allegations, levelled in the FIR being prima facie truthful coming out from the report of the Directorate of Forensic Science, is an aspect which cannot be ignored. Moreover this Court also notes that while civil proceeding have been initiated by the complainant and by other parties as well, it coulld not be shown that the complainant, had not succeeded in any other civil proceedings which may have led them filing of the present impugned FIR.
22. In the considered opinion of this Court when the FIR makes out prima facie allegations against the petitioners herein and whereas subsequent investigation more particularly since this Court had not stayed the investigation by way of interim order, it is coming on record that the signatures in the deed in question are prima facie false, therefore in the considered opinion of this Court, discretionary jurisdiction cannot be exercised in favour of the petitioners herein. Under such circumstances, the present petition devoid of merits and is rejected.
Interim relief granted earlier shall continue for further period of eight weeks, from the date the order is uploaded on the web portal of the Gujarat High Court.
(NIKHIL S. KARIEL,J) NIRU Page 14 of 14 Downloaded on : Sat Dec 24 15:16:11 IST 2022