Gujarat High Court
Pravinsinh K Raol vs State Of Gujarat & 2 on 16 July, 2014
Author: R.D.Kothari
Bench: R.D.Kothari
R/CR.MA/3621/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 3621 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.D.KOTHARI
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1. Whether Reporters of Local Papers may be
allowed to see the judgment ?
2. To be referred to the Reporter or not ?
3. Whether their Lordships wish to see the fair copy
of the judgment ?
4. Whether this case involves a substantial question
of law as to the interpretation of the constitution
of India, 1950 or any order made thereunder ?
5. Whether it is to be circulated to the civil judge ?
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PRAVINSINH K RAOL....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SUDHANSHU S PATEL, ADVOCATE for the Applicant(s) No. 1
MR K I KAZI, ADVOCATE for the Respondent(s) No. 2
MR M.IQBAL A SHAIKH, ADVOCATE for the Respondent(s) No. 2
MR KP RAVAL, APP for the Respondent(s) No. 1
RULE NOT RECD BACK for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 16/07/2014
Page 1 of 6
R/CR.MA/3621/2012 JUDGMENT
ORAL JUDGMENT
1. The applicant herein prays to quash the FIR filed by respondent No.2 before Pethapur Police Station, Gandhinagar bearing I-C.R.No.16 of 2012 for offence punishable under Section 463, 465, 471, 467, 468 r/w Section 114 of IPC.
2. Brief facts are, thus;
It is the say of the complainant that at village Randheja, there is ancestral property bearing Survey Nos.1493, 1459/2, 1460 and 1495/1. In the revenue record, the properties stood in the name of the father of the complainant. It is the say of the complainant that on death of her father, though complainant has a share in the ancestral property, her three real brothers have prepared a release deed depriving the complainant of her share in the property and acquiring the share of the complainant by these three brothers in the property. The said release deed is notarized. It is the say of the complainant that the said deed is forged deed. It is also the say of the complainant that other two brothers, viz. Natubhai and Jitubhai, though had a share in the above- referred property, the present accused persons have tried to deprive these two brothers of their share in the ancestral property. That Jitubhai has left the home and village since last so many years and though there is no material to show that he has died, forged documents were prepared by the present accused and attempt is made to deprive the complainant and her other brothers from their share in the ancestral property.
3. The applicant before the court is a practicing advocate. Alleged role of the applicant now comes into picture. It is Page 2 of 6 R/CR.MA/3621/2012 JUDGMENT alleged that brother of the complainant had approached the applicant for title clearance certificate. Present applicant, upon going through the document produced before him, had issued title clearance certificate wherein, in substance, he has stated that there is no charge or claim of any Government or Semi-Government body over the property. Issuance of certificate by the applicant has led the complainant to join him as an accused in the present case. The certificate issued by the applicant is at Annexure-C.
4. Heard learned advocate Mr.Sudhanshu S. Patel for the applicant and learned APP Mr.Raval for respondent No.1 - State. The respondent No.2, though duly served, has chosen not to appear.
5. This Court, on 27.9.2013, has passed the following order, granting interim relief to the applicant;
"Mr. Sudhanshu Patel, learned advocate for the applicant,has drawn the attention of the court to the allegations made in the first information report as well as to the documents annexed along with the application to submit that the applicant herein had merely issued a title clearance certificate based upon the documents which were furnished to him. It was submitted that on a perusal of the entire first information report, no offence can be said to have been constituted qua the present applicant. Though the court had waited till 4:45, the learned advocate appearing on behalf of the respondents No.2 and 3 has not remained present.
Prima facie, on a perusal of the allegations made in the first information report and more particularly the role attributed to the applicant herein, this court is of the view that the matter requires consideration. Hence, issue rule, returnable on 18th November, Page 3 of 6 R/CR.MA/3621/2012 JUDGMENT 2013. Mr. A. N. Shah, learned Additional Public Prosecutor, waives service of notice of rule on behalf of respondent No.1.
By way of interim relief, further proceedings pursuant to the first information report registered vide Pethapur Police Station I- C.R. No.16 of 2012, are hereby stayed qua the applicant Pravinhsinh K. Raol."
6. Learned advocate Mr.Sudhanshu Patel for the applicant, after referring the relevant material on record, has submitted that reading the FIR itself would show that no role is attributed to the present applicant. That present applicant has only issued title clearance certificate by referring the documents produced before him. It was also submitted that if the advocate is joined as an accused in the fashion as the complainant has sought to join in the present case, then no advocate would come forward to issue title clearance certificate and no advocate is safe. It was pointed out that it is not the say of the complainant that forged release deed or other documents are prepared by the present applicant or these documents were prepared through the present applicant. Admittedly, these documents are prepared by some other persons. In the circumstances of the case, it was submitted that there is no case against the present applicant.
7. The case of the complainant is of forgery. Broadly saying, offence of forgery by preparing false document would be made when accused has made or executed a document claiming to be some one else or authorized by some one else means "B" is posing himself as "A" or when accused is altering or tampering with the document or accused has obtained a document by practicing either deception or it is obtained from a person, who is not in control of his sense Page 4 of 6 R/CR.MA/3621/2012 JUDGMENT means he is of unsound mind or in intoxicant condition etc.
8. In the facts of present case, as referred above, interference in the present case is called for, for these reasons; What is role of present applicant, according to the complainant and beside the say of the complainant, is there any role of applicant in the present case? Virtually, no role is played by the present applicant in alleged deprivation of share of the complainant. Present applicant has only issued title clearance certificate declaring that there is no charge etc. over the property in question. That the present complainant has share or no share in the property, is a different question. Present applicant has not certified that complainant has no share in the ancestral property. Further, Mr.Patel has rightly drawn attention to contents of title clearance certificate issued by the present applicant. It was pointed out that prior to issuance of certificate, applicant has made due inquiry. The present applicant cannot be said to have committed forgery if the applicant is misled by any forged document said to produce before him. In other words, an opinion of the applicant was not sought on the point whether the complainant has any share in the property or not, or whether documents produced before the present applicant are genuine or forged one or not. Mere act of issuance of title clearance certificate does not in any way make the present applicant responsible in the alleged deprivation of complainant's share. Therefore, the say of the complainant so far as the present applicant is concerned, has no substance. Above all, what is material and important in the present case is, the complainant in complaint itself says that later on i.e. after issuance of title clearance certificate by the applicant, necessary order is Page 5 of 6 R/CR.MA/3621/2012 JUDGMENT passed by the revenue authority cancelling the order passed in revenue record pursuant to the release deed. It is also the say of the complainant that after cancellation of revenue entry, an attempt is made to bring affair in status-quo ante condition by executing cancellation deed.
8.1 In view of above, it would be abuse of process of Court to allow to continue the proceeding against the present applicant.
9. In view of above discussion, present petition succeeds. The FIR being I-C.R.No.16 of 2012 registered with Pethapur Police Station, Gandhinagar is hereby quashed and set-aside qua the present applicant. As a necessary consequence, charge-sheet, if filed, shall stand quashed and set aside. Rule is made absolute.
10. At the request of learned APP, Mr.Raval, it is clarified that complaint and further proceedings may proceed in accordance with law so far as other accused are concerned.
(R.D.KOTHARI, J.) vipul Page 6 of 6