Gujarat High Court
Vallabhbhai vs Anil on 22 March, 2011
Author: Harsha Devani
Bench: Harsha Devani
Gujarat High Court Case Information System
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CR.MA/2081/2008 41/ 41 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 2081 of 2008
With
CRIMINAL
MISC.APPLICATION No. 1673 of 2008
With
CRIMINAL
MISC.APPLICATION No. 1684 of 2008
For
Approval and Signature:
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
VALLABHBHAI
SHAMBHUBHAI PATEL - Applicant(s)
Versus
ANIL
AMARSINH RATHOD & 3 - Respondent(s)
=========================================================
Appearance
:
MR
ND NANAVATI WITH MR HARSHIT S TOLIA for
the petitioner in Criminal
Miscellaneous Application NO.2081 of 2008
MR PM THAKKAR
WITH MR. UTPAL M PANCHAL & MR. S.P. MAJMUDAR for the Respondents
in Criminal Miscellaneous
Application NO.1673 of 2008 MR SV RAJU WITH
MR V.A. PUROHIT in Criminal
Miscellaneous Application NO.1684 of 2008
MR LB DABHI, APP
for Respondent ? State of
Gujarat
=========================================================
CORAM
:
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 31/03/2008
ORAL
JUDGMENT
In Criminal Miscellaneous Application No.1673 of 2008 as well as Criminal Miscellaneous Application No.1684 of 2008, the petitioners therein seek quashment of the first information report being Katargam Police Station I C.R. No.46/08 lodged by the respondent No.2 herein, against in all 17 accused persons, alleging commission of the offences punishable under sections 406, 420, 465, 467, 468, 120-B, and 114 of the Indian Penal Code, 1860. Miscellaneous Criminal Application No.2081 of 2008 has been filed by the respondent No.2 (original complainant) seeking vacation of the interim relief granted by this Court vide order dated 12th February, 2008 in Miscellaneous Criminal Application No.1673 of 2008. The petitioners in Criminal Miscellaneous Application No.1673 of 2008 are arraigned as accused No.12, 16 and 17 respectively whereas the petitioners in Criminal Miscellaneous Application No.1684 of 2008 are arraigned as accused No.2 to 6 and 8 to 10.
It is the case of the complainant that he had purchased land bearing Revenue Survey No.181/1 and 181/2/A which was renumbered as Final Plot No.186 and 187 respectively, in the Town Planning Scheme from the power of attorney holders of the original land owners by registered sale deeds dated 1st April, 2006 on the basis of which mutation entries were made in the Revenue Record. That in the proceedings before the Revenue authorities, the original land owners had submitted affidavits stating that they had no objection to deletion of their names from the Revenue Record and insertion of that of the complainant and the secretary of the Sarita (Katargam) Co-operative Housing Society Ltd. (hereinafter referred to as ?Sthe Society??). However, subsequently the accused No.1 to 11 despite being aware of the fact that they are not the legal owners of the said land, had vide registered sale deed dated 27th August, 2007 sold the land in question to the accused No.12 and 13 who were aware that the property could not be purchased, wherein the accused No.16 and 17 had put their signatures as identifiers. It is, accordingly, alleged that all the accused persons have pursuant to a pre-planned conspiracy executed the sale deed dated 27th August, 2007 and have thereby committed breach of trust and cheated the complainant and have accordingly committed the offences alleged against them in the complaint.
According to the petitioners in Criminal Miscellaneous Application No.1673 of 2008, the petitioner No.1 and one Rajeshbhai Valjibhai Kalasia (accused No.13) had purchased the land bearing Revenue Survey No.181/1 and 181/2/A which was renumbered as Final Plot No.186 and 187 respectively, in the Town Planning Scheme from the original landowners by two sale deeds which were duly registered on 27th August, 2007 wherein the petitioners No.2 and 3 have signed as witnesses. It is the case of the petitioners that the petitioner No.1 and accused No.13 are bona fide purchasers of the said land from the original landowners for a huge amount of consideration, hence the question of preparing false and fabricated documents does not arise at all. It is also the case of the petitioners that the petitioner No.1 and accused No.13 have purchased the land in question on the basis of and relying on the Revenue Record at the relevant point of time.
On the other hand the case of the respondent No.2 original complainant as stated in his affidavit-in-reply is that the petitioner No.1 and Rajeshbhai Valjibhai Kalathiya are not bona fide purchasers of the land in question. That the petitioners have produced the old Revenue Record before the Court. That the latest Revenue Record shows the certification of mutation entry in favour of Sarita Co-operative Housing Society. That any person who is inclined to purchase land would verify the latest revenue record. It is further the case of the respondent No.2 that the joint so-called purchaser Rajeshbhai Valjibhai Kalathiya is a co-accused in the FIR being Katargam Police Station II C.R. No.117/2007 wherein it is alleged that all the accused had tried to disturb the peaceful possession of the first bona fide purchaser for value without notice. That the petitioners, or at least Rajeshbhai Valjibhai Kalathiya, were well aware of the dispute pertaining to the land in question. According to the respondent No.2, the petitioners were aware of the true facts, but have executed the sale deed dated 27th August, 2007 either with a view to extort money from Sarita Co-operative Housing society or to grab the said land. That, the recitals made in the sale deed establish the fraudulent intention on the part of the parties to the sale deed. According to the respondent No.2, all the parties to the sale deed in question were well aware of the rights and possession of Sarita Co-operative Housing Society qua the land in question and that the petitioner and the so called joint purchaser were trying to help the original land owners and thereby cheat the Society and that for the said purpose they have forged all the documents as alleged in the FIR.
According the petitioners of Criminal Miscellaneous Application No.1684 of 2008, somewhere in the beginning of the year 2007 they had come to know that the respondent No.2 had grabbed the land in question by virtue of false and fabricated sale deeds on the basis of false and fabricated power of attorneys. That the original accused No.1 filed a criminal complaint against the respondent No.2 before the Judicial Magistrate First Class, Surat being Inquiry Case No.4/2007 under sections 419, 420, 465, 467, 468, 471, 120-B, 34 and 114 of the Indian Penal Code wherein the learned Magistrate had ordered investigation under section 156(3) of the Code. After investigation the concerned Police Officer has filed a ?SB?? summary report but the same has not yet been granted and is pending before the learned Magistrate. That the petitioner No.2 had preferred RTS Appeal before the Collector, Surat and the petitioners No.1 and 2 and the original accused No.1 have filed Special Civil Suit No.190/2007 before the learned Civil Judge (S.D.), Surat on 2.6.2007 wherein the respondent No.2 is also a party as defendant No.12. In the said suit the plaintiffs therein have sought for cancellation of the alleged registered sale deeds and for declaration and permanent injunction qua the land in question. The petitioners have also referred to various complaints filed by the some of the accused against the respondent No.2 and vice versa.
According to the petitioners, they as well as the other accused landowners have never executed any power of attorney in favour of any person, however forged and fabricated sale deeds have been executed in favour of the respondent No.2 on the basis of forged and fabricated power of attorneys with the illegal motive of grabbing the land of the petitioners. It is also the case of the petitioners that pursuant to issuance of notice by the revenue authorities under section 135-D of the Bombay Land Revenue Code, 1879, the complainant had submitted fabricated affidavits before the Revenue Authority and got the mutation entries certified.
Heard, Mr. P.M. Thakkar learned Senior Advocate with Mr. U.M. Panchal learned Advocate for the petitioners in Miscellaneous Criminal Application No.1673 of 2008, Mr. S.V. Raju learned Advocate with Mr. U.A. Purohit and Mr. S.P. Majmudar learned Advocates for the petitioners in Miscellaneous Criminal Application No. 1684 of 2008, Mr. L.B. Dabhi learned Additional Public Prosecutor for respondent No.1 State of Gujarat and Mr. N.D. Nanavati learned Senior Advocate with Mr. H.S. Tolia learned Advocate for the respondent No.2 in both the applications.
During the course of hearing of the application for vacation of stay, all the learned Advocates appearing for the respective parties have made elaborate submissions on the factual and legal aspects of the case, hence, with the consent of the learned Advocates for the parties all the applications are being finally decided by this common judgment.
Mr. P.M. Thakkar learned Senior Advocate has submitted that allegedly two irrevocable power of attorneys are stated to have been executed by the original land owners in respect of the land in question; one in 1997 by a majority of the land owners which was subsequently again executed in presence of a Notary in the year 2002 and another is stated to be executed by two sisters in December 2003. The sale deed in favour of the respondent No.2 has been executed on 1st April, 2006 on the basis of the said power of attorneys. The very same land has been sold to the petitioner No.1 and accused No.13 in 2007. It is pointed out that the original land owners have disputed the said power of attorneys and have lodged a complaint that the power of attorneys are forged, pursuant to which the police has filed a ?SB?" Summary report however, the same has not yet been accepted by the learned Magistrate. It is further pointed out that civil proceedings being Special Civil Suit No.190 of 2007 have been instituted for a declaration that the sale deeds in favour of the society are illegal. It is urged that the original land owners are farmers, who have disputed the power of attorneys from the very beginning and have initiated necessary proceedings both civil and criminal, hence, transfer of the land in question in favour of the petitioner No.1 cannot be said to be an offence as alleged. It is submitted that if the original landowners have not committed any offence, the question of abetment by the petitioners does not arise. It is argued that the allegation against the petitioner No.1 is that he is not a bona fide purchaser is misconceived, inasmuch as merely because the petitioner No.1 was not so vigilant, it cannot lead to the inference that he was aware of the previous sale. At best it can be said that he had purchased land with a defective title but no offence as alleged can be said to have been committed. Referring to the contents of the FIR, it is submitted that the same does not disclose any offence. It is submitted that the filing of the first information report in question is sheer abuse of the process of criminal machinery.
Mr. S.V. Raju learned Advocate for the petitioners in Miscellaneous Criminal Application No.1684 of 2008 has vehemently argued that on perusal of the contents of the first information report, no offence much less any offence under section 406 of the Indian Penal Code, can be said to be made out. It is submitted that the complaint can be divided into three compartments viz. (i) Criminal breach of trust, (ii) Cheating and (iii) Forgery. It is submitted that insofar as the offence of criminal breach of trust is concerned, section 405 IPC which defines criminal breach of trust envisages entrustment with property to the accused. It is submitted that in the present case the basic ingredient, i.e. entrustment of property is missing, in the circumstances, the provisions of section 406 IPC cannot be said to be attracted. Reliance is placed upon a decision of the Supreme Court in the case of Central Bureau of Investigation v. Duncans Agro Industries Ltd. (1996) 5 SCC 591 wherein it has been held that the expression ??entrusted?" appearing in Section 405 IPC is not necessarily a term of law. It has wide and different implications in different contexts. It is, however, necessary that the ownership of the property entrusted in respect of which offence is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. Attention is drawn to the complaint dated 23rd March, 2007 (Annexure E) forwarded by the petitioner No.2 to the Police Commissioner, Surat regarding the creation of false and fabricated power of attorneys, based upon which sale deeds have been executed in favour of the respondent No.2. Reliance is also placed upon a decision of the Supreme Court in the case of S.W. Palnitkar and others v. State of Bihar and another (2002) 1 SCC 241 wherein it has been held as follows:
?S20.Turning to the facts of the case, there is nothing either in the complaint and/or in the sworn statements of the complainant and the three witnesses that any property was entrusted to any of the appellants at all or the appellants had domain over any of the properties of respondent No.2 which they dishonestly converted to their own use so as to satisfy the ingredients of section 405 IPC punishable under section 406 IPC. Further, the agreement also did not require entrustment of any property to the appellants. Taking the complaint and the statements of the witnesses as they are, it cannot be said even prima facie, that the appellants committed any offence punishable under section 406 IPC, since the ingredients of that offence were not satisfied. Hence, the learned Magistrate committed a serious error in issuing process against the appellants for the said offence. Unfortunately, the High Court also failed to correct this manifest error.??
Insofar as the offence of cheating is concerned, reliance is placed upon the decision of the Supreme Court in the case of S.W. Palnitkar (supra) wherein it has been held that in order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. It is submitted that there is not a whisper in the entire complaint that any false representation was made to the complainant. It is submitted that the complaint does not reflect that there was any dishonest intention on the part of the petitioners right from the inception. Reliance is also placed upon a decision of the Supreme Court in the case of Ajay Mitra v.
State of M.P. (2003)3 SCC 11 for the proposition that to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered. It is pointed out that there is no privity insofar as the respondent No.2 and the petitioners are concerned. The petitioners have in no manner induced the respondent No.2 so as to attract the provisions of section 420 IPC.
As regards the third compartment viz. forgery, it is submitted that merely because allegedly some wrong fact is stated in the sale deed, it does not amount to forgery. Referring to the provisions of section 463 and 464 IPC it is submitted that prima facie there are no allegations regarding forgery in the entire complaint. In support of his submissions the learned Advocate for the petitioners has placed reliance upon a decision of this Court in the case of State of Gujarat v. Motibhai Jethabhai Makwana, 1992 (2) GLH 306 wherein the Court after examining the provisions of section 463 and 464 IPC held thus: ?SThus, the assertion of a false claim in a document does not constitute the document a false one, when it is executed by the party who purports to execute it and there is no intention of causing a belief that it was executed by some other person, real or fictitious.?? Reliance is also placed upon a decision of this Court in the case of Maganbhai Jivramdas and Another, 1984 GLT 21 to submit that when the sale deeds in question were their own creation and there was no attempt on the part of the petitioners to make it appear that it was prepared by someone else, clauses (2) and (3) of section 464 are also not attracted because there is no question of alteration of a document in any material part, after it has been executed. Nor is there any question of causing any person to sign, seal or execute or alter any document at the hands of a man of unsound mind or of intoxicated mind or a man labouring under some deception.
It is accordingly urged that upon considering the complaint at its face value, none of the ingredients of the offences alleged against the petitioners are made out, hence the complaint in question is required to be quashed.
On the other hand Mr. N.D. Nanavati learned Senior Advocate appearing on behalf of the respondent No.2 in Criminal Miscellaneous Application No.1673 of 2008 has vehemently opposed the application. It is pointed out that the first information report is registered on 2nd February, 2008 and immediately thereafter on 8th February, 2008 the present application has been filed wherein interim relief has been granted on 12th February, 2008. It is urged that the respondent No.2 had purchased the land in question by virtue of a registered sale deed on 1st April, 2004. The respondent No.2 is not party to the dispute between the landowners and the power of attorneys. Referring to the order dated 30th March, 2007 passed by the Mamlatdar, Surat City, Surat in RTS/Disputes Case No.32/2006 (Annexure IV to the affidavit-in-reply) it is pointed out that pursuant to the sale deeds executed in favour of the respondent No.2 corresponding mutation entry No.9702 had been made in the record of rights on 20th June, 2006, however some of the landowners had raised objections to the same. After culmination of the proceeding, the application raising objections was quashed and set aside and it was directed that the aforesaid mutation entry No.9702 be certified pursuant to which the entry was certified on 5th April, 2007. Referring to the Village Form No.8-A pertaining to the land in question, it is pointed out that the entry in favour of the respondent No.2 is duly reflected therein. It is submitted that the petitioners had purchased the land in question in August 2007 and despite the overwhelming revenue record, are now contending that they are bona fide purchasers. It is submitted that in the circumstances, the petitioners who are the purchasers of the land in question, have abetted the offence and are part of the conspiracy.
Dealing with the contention raised by the learned Advocates for the petitioners that no offence as alleged is constituted, the learned Senior Advocate submitted that after investigation is made, charge will be framed qua the offences made out. Merely because ingredients of the offences alleged may not be satisfied is no ground to scuttle the investigation at the nascent stage. It is contended that the FIR cannot be quashed at the threshold on the ground that no offence whatsoever is made out. It is submitted that all the allegations made in the complaint are subject matter of investigation and that in any case considering the allegations made in the complaint it cannot be said that the offences alleged are not constituted.
Attention of the Court is drawn to the provisions of section 464 IPC which lays down as to when a person can be said to make a false document and more particularly to illustration (h) thereunder which reads as under:
?S(h) A sells and conveys an estate to Z. Afterwards, in order to defraud Z of his estate, executes a conveyance of the same estate to B, dated six months earlier than the date of the conveyance to Z, intending it to be believed that he had conveyed the estate to B before he conveyed it to Z. A has committed forgery.??
Referring to the recitals made in the sale deed executed by the landowners in favour of the petitioner No.1, it is pointed out that it is stated therein that an agreement to sell had been entered into between the parties on 1.4.2000 and that Rs.4,60,000/- had been paid towards part of the consideration. It is accordingly submitted that the parties had executed a conveyance intending it to be believed that the agreement to sell had been entered into several years prior thereto. In the circumstances the aforesaid illustration would be applicable on all fours to the facts of the present case and as such the accused persons have committed the offence of forgery. Attention is also drawn to Explanation I to section 464, which provides that ?SA man?"s signature of his own name may amount to forgery??. Referring to illustration (d) to the said explanation which reads as under:
?S(d) A purchases an estate sold under execution of a decree against B. B, after the seizure of the estate, in collusion with Z, executes a lease of the estate to Z at a nominal rent and for a long period dates the lease six months prior to the seizure, with intent to defraud A, and to cause it to be believed that the lease was granted before the seizure. B, though he executes the lease in his own name, commits forgery by antedating it.??
It is submitted that the recitals in the sale deed have been made with the intent of causing it to be believed that the agreement to sell was made prior to the sale in favour of the respondent No.2, and the original landowners with the intent to defraud the respondent No.2, though they have executed the sale deed in their own names have committed the offence of forgery as envisaged by the aforesaid illustration.
Attention of the Court is drawn to the complaint filed by the respondent No.2 on 16th April, 2007 wherein the accused No.13, is one of the accused as well as the photograph Annexure II to the affidavit-in-reply, stating the one of the persons in the said photograph is the accused No.13, to contend that knowledge of the dispute is reflected from the same. Commenting on the conduct of the landowners, it is pointed out that the civil suit is instituted on 2nd June, 2007 and the complaint is lodged on 5th June, 2007 after the revenue entries were certified in favour of the respondent No.2.
It is submitted that the FIR can be quashed if no offence is disclosed. However, at a premature stage it would be hazardous to quash the FIR before investigation. That, therefore, reserving liberty to approach at a later stage, this application should be rejected.
Dealing with the contentions regarding the illustrations below section 464 IPC, Mr. P.M. Thakkar learned Senior Advocate for the petitioners has submitted that illustration (h) would not be applicable to the facts of the present case, inasmuch as the original landowners have not sold and conveyed the land in question to the respondent No.2. On the contrary right from the inception it is their case that the power of attorneys on the basis of which the land in question is allegedly conveyed to the respondent No.2 are false and fabricated. In the circumstances, when they have not conveyed the land in question to the respondent No.2 the said illustration would not be attracted.
As regards illustration (d) below Explanation 1 to section 464, the learned Senior Advocate has submitted that under the said illustration, antedating of a document with intent to commit fraud is said to amount to forgery. Thus if the document is antedated it will attract illustration (d), however, the contents of the document will not attract the provisions of the said illustration. That in the present case it is not the document which is antedated, but it is the case of the respondent No.2 that the recitals made therein are antedated.
The learned Senior Advocate has submitted that the allegation qua the petitioner No.1 of Miscellaneous Criminal Application No.1673 of 2008 is that he has purchased property with a defective title. Referring to the order passed by the Mamlatdar, Surat City, in RTS proceedings it is pointed out that the revenue authority has not adjudicated regarding the legality of the power of attorney and as to whether the on the basis of such power of attorney was the document could have been executed in favour of the respondent No.2. It is submitted that insofar as the original landowners are concerned there is no adjudication in civil proceedings on the revenue side and insofar as criminal proceedings are concerned the police have filed a ?SB?? summary report. It is submitted that the question as to whether the power of attorneys have been executed by the original landowners, has not examined by any civil Court. That there is a strong apprehension that the rightful claim of the original landowners would be strongly prejudiced by the use of police machinery against them.
The learned Senior Advocate has placed reliance upon a recent decision of the Supreme Court in the case of B. Suresh Yadav v. Sharifa Bee, AIR 2008 SC 210 for the proposition that for the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. It is submitted that in the facts of the present case, insofar as the complainant is concerned there is no promise or representation at all; hence, the offence of cheating cannot be established.
Dealing with the contention that even if the FIR may not disclose the offences alleged, after investigation is made charge will be framed qua the offences made out, the learned Senior Advocate has placed reliance upon a decision of the Supreme Court in the case of Divine Retreat Centre v. State of Kerala, AIR 2008 SC 251 for the proposition that a direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person?"s involvement is prima facie established, but a direction to investigate whether any person has committed an offence or not cannot be legally given. It is submitted that though the FIR does not disclose commission of any offence as alleged, the compliant is registered merely with the view to pressurize the original landowners who are farmers and have throughout been agitating against the sale in favour of the complainant. Referring to the first information report being Katargam Police Station II C.R. No.117/2007, it is pointed out that the power of attorney is the brother in law of the complainant. It is urged that firstly a fabricated power of attorney is created and thereafter the said power of attorney holder sells the land in question to his own brother-in-law. It is submitted that all machineries are being utilized to deprive the farmers of their legitimate rights. It is further submitted that the original landowners cannot be made vicariously liable for the acts of the power of attorney.
Mr. H.S. Tolia learned Advocate for the respondent No.2 has submitted that the mutation entry in favour of Sarita Co-operative Housing Society was certified on 5.4.2007. The original landowners filed the suit on 2.6.07 in which they did not get any interim relief. The so-called sale deed had been executed in favour of the petitioner No.1 and accused No.13 on 27th August 2007, which is nothing but an attempt to create a right over the land in question. It is urged that the complaint would comprise of the FIR as well as the documents submitted along with FIR, which if read together, clearly disclose commission of the offences alleged against the petitioners. It is submitted that out of all original land owners, one Mr. Narrottam Patel has not executed the sale deed in favour of the co-accused ? subsequent purchasers. The police have recorded the statement of Narrottam Patel, which was read over in the bail applications of other accused persons before Trial Court. That in the opinion of the Trial Court, offence is made out. It is urged that in the statement and prosecution papers are perused, the fact of commission of offence can be gathered. As regards the decisions on which reliance has been placed upon by the learned Advocates for the petitioners in respect of the offence of forgery, it is submitted that those decisions pertain to findings recorded during the course of trial and hence are not applicable to the facts of the present case. Reliance is placed upon a decision of the Supreme Court in the case of State of Orissa and another v. Saroj Kumar Sahoo (2005) 13 SCC 540, for the proposition that the powers possessed by the High Court under section 482 CrPC are very wide and the very plenitude of the power requires great caution in its exercise. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. The learned Advocate has further submitted that the society has 240 members whose interests are affected by the acts of the petitioners.
In the background of the facts and submissions noted hereinabove this Court is called upon firstly to examine as to whether the FIR discloses commission of the offences alleged against the petitioners in both these applications. In this regard it would be necessary to refer to the contents of the first information report in question.
According to the complainant-Vallabhbhai Shambhubhai Patel, he is the president of one Sarita (Katargam) Co-operative Housing Society Ltd. The society owns lands bearing Revenue Survey No.181/1 Final Plot No.186 and Revenue Survey No.181/2 Final Plot No.187 of Katargam. The accused No.1 to 11 and one deceased Jamunaben Khushalbhai and two others were the original owners of the said lands. Deceased Jamunaben, accused No.1 and No.4 to 11 and two others had executed an irrevocable power of attorney in favour one Manubhai Ranchhodbhai Patel in the presence of the Executive Magistrate, Surat on 10th December, 1997. Subsequently accused No.2 and 3 had executed an irrevocable power of attorney in favour of one Kartik Ratilal Patel in December 2003 before a Notary. Later on accused No.1 and 4 to 11 and the said Jamunaben as well as the other two landholders had on 9th August 2002, again executed an irrevocable power of attorney in favour of Manubhai Ranchhodbhai Patel, this time before a Notary. That the two power of attorney holders executed registered sale deeds in favour of the complainant and one Tusharbhai Bhanubhai Patel as Chairman and Secretary of Sarita (Katargam) Co-operative Housing Society Ltd. on 1st April, 2006 after taking consideration in the sum of Rs.8,80,200/-. On the basis of the aforesaid sale deeds, corresponding entry was made in the record of rights vide mutation entry No.9705/06 on 20.6.06. That prior to certifying the said entry notices were issued, pursuant to which objections were received by the office of the Mamlatdar and upon culmination of the proceeding, the said entry was certified. At the relevant time the landholders had made affidavits in their favour, stating that they had no objection if their names were deleted from the land records and the name of the complainant and the secretary were inserted. That despite the aforesaid position the accused No.1 Kantibhai Khushalbhai Patel had lodged a complaint against them before the concerned Court for the offences punishable under sections 419, 420, 465, 467, 468, 471, 120-B, 34 and 114 of the Indian Penal Code wherein investigation under section 156(3) of the Code had been ordered pursuant to which the police and filed a ?SB?? summary report. That the accused No.1, 13 and other persons had come near the land and threatened them, in connection with which they had lodged a complaint being Katargam Police Station II C.R. No.117/07 for the offences punishable under sections 504, 506(2) and 114 IPC, on account of which arrests were made and thereafter they are not going on their lands. That they had been released subject to the condition that they would not tamper with the evidence as well as other conditions. That for the purpose of construction of the society, Zone A had been obtained, against which the accused No.1 had lodged a complaint before the Revenue Department which had been rejected. That the accused No.1, 2 and 3 had instituted proceedings in respect of the said lands being Special Civil Suit No.190/07 against the other landholders.
That despite being aware of the fact that the complainant and Tusharbhai Bhanubhai Patel were owners and possessors of the said lands in the capacity of President and Secretary of Sarita (Katargam) Co-operative Housing Society Ltd., that the plans of the society have been sanctioned and Rajachhithi for construction thereon has been given and that they are not the legal owners of the said lands, vide registered sale deed dated 27th August, 2007 the accused No.1 to 11 sold the said lands to the accused No.12 and 13 who were aware that the property could not be purchased, wherein one Rameshbhai and M.A. Patel as well as accused No.16 and 17, as identifiers have put their signatures on the same.
It is accordingly alleged that all the aforesaid accused persons have come together and hatched a pre-planned conspiracy, and despite knowing that they are not the owners or possessors of the land and that the said land has already been sold and that the same cannot be purchased have committed breach of trust and cheated the complainant and thereby committed the offences punishable under section 406, 420, 465, 467, 468, 120-B and 114 of the Indian Penal Code, 1860.
In sum and substance the allegations made in the complaint are to the effect that the original landowners had executed two power of attorneys in respect of the land in question. The power of attorney holders had in turn executed sale deeds in favour of the complainant and another in the capacity of President and Secretary of Sarita (Katargam) Co-operative Housing Society Ltd., pursuant to which corresponding entry was made in the Revenue Record. That in the proceedings before the revenue authorities some of the landowners had made affidavits in favour of entering the name of the Society after deleting their names from the Revenue Record. That despite the aforesaid position, some of the accused had raised disputes, both civil and criminal against the complainant and the accused No.1 to 11 despite being aware of the fact that the land in question had been transferred in favour of the complainant had executed sale deed in favour of the accused No.12 and 13, who also were aware that the land has been sold to the complainant and accused No.16 and 17 signed the sale deed as identifiers.
The question to be examined by this Court is whether the allegations made in the FIR, even if they are taken at their face value and accepted in their entirety constitute any offence or make out a case against the accused.
The offences alleged against the petitioners are under section 406, 420, 465, 467, 468, 120-B and 114 IPC i.e. criminal breach of trust, cheating, forgery, forgery of valuable security, will, etc. and forgery for the purpose of cheating. For the sake of convenience each offence is being dealt with separately, in the context of the allegations made in the FIR.
In case of an offence of criminal breach of trust, the basic ingredient as held by the Supreme Court in the case of Central Bureau of Investigation v. Duncan?"s Agro Industries Ltd. (supra) as well as in the case of S.W. Palnitkar (supra) is that there must be entrustment of property in respect of which the offence is alleged. Whereas in the facts of the present case, it is evident that there is no privity insofar as the complainant and the original landowners are concerned. Besides, there is nothing in the complaint to show that any property was entrusted to any of the petitioners at all or that the petitioners had domain over any of the properties of the complainant which they dishonestly converted to their own use so as to satisfy the ingredients of section 405 IPC punishable under section 406 IPC. Taking the allegations made in the complaint as they are, it cannot be said even prima facie, that the petitioners have committed any offence punishable under section 406 IPC, since the ingredients of that offence are not satisfied.
Insofar as the offence of cheating is concerned, it is clear from the allegations made in the complaint that the complainant had purchased the land in question from the alleged power of attorneys. The allegations in the complaint are to the effect that despite being aware of the said fact, the accused No.1 to 11 had sold the said land by registered sale deeds to accused No.12 and 13. That all the parties to the sale deeds were aware that the land stood transferred in favour of the complainant. Considering the aforesaid allegations in the light of the provisions of section 415 IPC, the ingredients which are required to be satisfied for making out an offence of cheating are that the accused by deceiving any person, fraudulently or dishonestly should induce the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or should intentionally induce the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and such act or omission should cause or should be likely to cause damage or harm to that person in body, mind or reputation or property. Turning to the facts of the present case, insofar as the complainant and the petitioners are concerned, there is no privity between them. There is not even a whisper in the entire complaint that any inducement was offered to the complainant by the accused, whereby he was deceived to do or omit to do anything which he would not do or omit if he were not so deceived, so as to constitute the offence of cheating. In the circumstances the provisions of section 415 IPC are clearly not attracted.
The other offences alleged are under section 465, 467 and 468 IPC, which are punishing sections for the offence of forgery, forgery of valuable security, will etc. and forgery for the purpose of cheating. This Court in the case of State of Gujarat v. Motibhai Jethabhai Makwana (supra) after a detailed examination of the provisions of section 465 IPC in the light of the provisions of section 463 which defines ??forgery?" and section 464 which defines ??making a false document?", has held that the assertion of a false claim in a document does not constitute the document a false one, when it is executed by the party who purports to execute it and there is no intention of causing a belief that it was executed by some other person, real or fictitious.
In the facts of the present case the allegation in the FIR is that despite the parties being aware of the fact that the land in question has been transferred by the power of attorneys of the original landowners in favour of the Society, the accused No.1 to 11 (original landowners) have executed sale deed in favour of the accused No.12 and 13. Considering these facts in the light of the above referred decision of this Court, it is an admitted position that the accused No.1 to 11 have executed the sale deed in question claiming to be owners of the land in question. Thus the document is executed by the party that purports to have executed it. It is nobody?"s case that there was any intention on the part of any of the accused to cause a belief that the document was executed by some other person than the persons who had actually executed the document. According to the complainant once the property had been transferred in favour of the Society, the accused No.1 to 11 ceased to be owners thereof and as such could not have executed such document as owners of the said land. Even if the allegation made by the complainant were to be accepted, as held by this Court in the decision referred to hereinabove, the assertion of a false claim in a document does not constitute the document a false one, when it is executed by the party who purports to execute it and there is no intention of causing a belief that it was executed by some other person, real or fictitious. In the circumstances, the provisions of section 464 IPC would not be attracted.
It has been contended on behalf of the respondent No.2 that the provisions of section 464 would be attracted in view of illustration
(h) thereunder. A perusal of the said illustration shows that forgery is said to be committed when a person executes a conveyance in respect of his estate to a person and subsequently executes an antedated conveyance in respect of the same estate in favour of another person, with the intention to cause it to be believed that he had conveyed the estate to the second person before he conveyed it to the first person. In the facts of the present case, the basic ingredient, viz. execution by the landowners in favour of the complainant is missing. Hence, when the original landowners have not executed the conveyance in favour of the Society, subsequent conveyance in favour of the accused No.12 to 13 cannot be said to be forgery so as to fall within the purview of the aforesaid illustration. Besides, the sale deed in question is not antedated, but there is only a reference to a prior agreement to sell in the said conveyance. For the same reason, illustration (d) to Explanation I to section 464 IPC would also not be applicable.
In view of the above discussion, this Court is of the view that the basic ingredients of the offence under sections 465, 467 and 468 are altogether missing even in the allegations of the FIR against the petitioners. Therefore, by no stretch of imagination, the petitioners can be legally prosecuted for the said offences.
The next contention raised by the learned Senior Advocate for the respondent No.2 is that even if the FIR may not disclose the offences alleged, after investigation is made charge will be framed qua the offences made out. In this regard, applying the principles laid down by the Apex Court in the case of Divine Retreat Centre (supra), when the FIR does not disclose the commission of the offences alleged; investigation cannot be permitted to be carried out merely to find out as to whether any offence has been committed.
The next question which arises is that the where the complaint or the FIR does not disclose commission of a cognizable offence, whether the same can be quashed at the initial stage. The Supreme Court in the case of State of W.B. v Swapan Kumar Guha (1982) 1 SCC 561 has examined the question and held that the first information report which does not disclose that the essential requirements of the penal provision are prima facie satisfied, cannot form the foundation or constitute the starting point of a lawful investigation. It is surely not within the province of the police to investigate into a report (FIR) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty to inquire into such cases. It was further held that an investigation can be quashed if no cognizable offence is disclosed in the FIR. In the present case examining the complaint as a whole, but without examining the merits of the allegations, even if all the averments made in the FIR are taken to be correct, no factual foundation has been laid in the complaint for prosecution under sections 406, 420, 465, 467 and 468 of the Indian Penal Code against any of the petitioners in both the applications. When the main offences are not made out, there is no question of invoking the provisions of section 120-B and 114 IPC. In the circumstances, when the FIR does not disclose any cognizable offence the question of carrying out any investigation pursuant thereto does not arise. The contention that the applications filed by the petitioners are premature also does not merit acceptance.
The Supreme Court in the case of Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. (2000) 3 SCC 269 has observed thus:
?SExercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of First Information Report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the Court on perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise upto the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount.??
The Supreme Court in the case of Indian Oil Corporation v. NEPC India Ltd. and others (2005) 6 SCC 736 has observed that any effort to settle civil disputes and claims, which do not involve criminal offence, by applying pressure through criminal prosecution should deprecated and discouraged.
For the foregoing reasons, to prevent abuse of the process and to secure the ends of justice, it therefore, becomes imperative to quash the FIR in question. In the result, the applications succeed and are accordingly allowed. The first information report being Katargam Police Station I CR No.46/2008 is hereby quashed qua the present petitioners. Rule is made absolute.
As Miscellaneous Criminal Application No.1673 has been allowed, the application for vacation of the interim order dated 12th February, 2008 passed in the said application does not survive, and is disposed of accordingly.
shekhar/-
(H.N.DEVANI, J.) Top