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Gujarat High Court

Chhaganbhai Damjibhai Bunsa vs State Of Gujarat on 17 March, 2023

Author: Samir J. Dave

Bench: Samir J. Dave

                                                                                 NEUTRAL CITATION




     R/CR.MA/4906/2023                             ORDER DATED: 17/03/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 4906 of 2023

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                         CHHAGANBHAI DAMJIBHAI BUNSA
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1,2
MR MOUSAM YAGNI, for the Respondent(s) No. 2
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                               Date : 17/03/2023

                                 ORAL ORDER

1. Mr. Mousam R. Yagnik, learned advocate states that he has received instructions to appear for and on behalf of the respondent no.2 and sought permission to appear on behalf of the respondent no.2. Permission; as sought for; stands granted. He shall file his Vakalatnama before the Registry. Registry shall accept the same.

2. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent no.1-State and learned advocate Mr. Mousam R. Yagnik waives service of notice of rule for and on behalf of the respondent no.2.

3. Considering the issue involved in the present application and with consent of the learned advocates appearing for the Page 1 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023 NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined respective parties, this matter is taken up for final disposal forthwith.

4. By way of present application, applicants have requested to quash and set aside the FIR being CR No. 11213030230074 of 2023 registered with Lodhika Police Station, District Rajkot Rural for the offence punishable under Sections 406, 420, 467, 468, 471 and 114 of the Indian Penal Code.

5. Brief facts of the present case are as under:

5.1 That, present applicant No. 1 ts the purchaser under the first sale deed dated 02.06.2012 where amount of cash has not been paid to the complainant but cheque amount is already paid. Insofar as applicant No 2 1s concerned, it Is alleged that applicant No 2 has executed Agreement to Sale with the co-

accused 1.e second purchaser viz. Sandip Vank i.e. accused No.6. In other words, accused No.1 has executed the sale deed with the complainant and complainant claims that the amount has not been received and thereafter the said land was sold to co-accused ie accused No 3 and further to accused Nos 4 and 5 who have executed an Agreement in favour of the present applicant No 2.

5.2 Thereafter, complainant has executed a registered sale deed in favour of applicant No.1 herein and Dr. Dilipbhai Patel (accused No.2) on 02.06.2012. That the complainant has Page 2 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023 NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined received payment with regard to purchase consideration through cheque in connection with the said sale deed. That, the present applicants alongwith the accused No.2 named in the FIR have further executed registered sale deed on 04.04.2016. That, thereafter, the said accused i.e. accused Nos.4 and 5 have purchased the land from accused no.3 mentioned in the FIR on 23.10.2018. That, all the transactions are accounted and the payments concerning sale deeds have been made by cheque. Thereafter complainant filed a civil suit being Civil Suit No.59/2017 before the Court of learned Civil Judge, Gondal for recovery of Rs.5,37,00,000/-against the present applicant No.1 That, the complainant also moved an application below Exh.5 for interim order in connection with the aforesaid civil suit but the same was rejected vide order dated 04.09.2018 5.3 That, the complainant has executed sale deed in favour of the present applicant no.1 and Dilipbhai Patel(accused no.2 mentioned in the FIR) and though the complainant was paid amount by cheque but rest of the amount, which was to be received by the complainant in cash, has not been paid by the said accused and the said accused have further sold the land to the accused No.3 and accused No.3, in turn, sold the land to accused Nos.4 and 5. In nutshell, complainant claims that Page 3 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023 NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined complainant has not received purchase consideration of the sale deed, which he executed in favour of present applicant No.1 and Dilipbhai Patel(accused no.2 mentioned in the FIR). It is in such background of non-receipt of purchase consideration of a sale deed which is executed in the year 2012; the FIR is registered in the year 2023.

5. Heard learned advocates for the respective parties.

6. It was submitted by learned advocate for the applicants that successive purchaser has been dragged into the present litigation. That, impugned FIR is nothing but sheer abuse of process of law and continuing investigation in connection with the aforesaid FIR would amount to allowing premium to such unscrupulous litigant for the reason that the complainant has lost before the Revenue Authorities and also before the Civil Court with reference to interim orders. That, complainant also simultaneously questions the revenue entries with regard to the transaction in question and the objection which was raised by the complainant was dealt with by the Mamlatdar vide its order dated 01.05.2019 whereby the complainant's objections were rejected. The prices of lands have gone high and therefore, the complainant wants to pressurize the present applicants by way of the impugned FIR. That, the impugned proceedings in so far as present applicants Page 4 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023 NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined are concerned, is an abuse of process of law. That, the impugned FIR does not establish any offence of forgery as the complainant has admitted his signature on the documents in question. The complainant has already filed civil suit in the year 2017 for the purpose of cancellation of sale deed. In the said civil suit, by reasoned order, Application below Exhibit-5 filed by the complainant is rejected. In the present case, the delay of 10 years is not even explained by the complainant in the FIR. The present case squarely falls within the ambit of the aforesaid decision. It was further submitted by learned advocate for the applicants that the allegations in the impugned FIR are so absurd and inherently improbable that on the basis of which no prudent person can ever reach to a conclusion that any cognizable offence has been made out. Ultimately, it was submitted by learned advocate for the applicants to allow present application.

7. Learned advocate for the original complainant- respondent no.2 has strongly objected the submissions made by learned advocate for the applicants and submitted that the land in dispute is in possession of the respondent no.2 and the remaining amount as alleged in the FIR is not paid either by the the accused no.1 or 2 or by the accused no.3. That, there are numbers of antecedents against each of the accused persons.

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NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined That, it is also admitted by the accused no.1 to 3 in promissory note that they will pay remaining amount to the complainant and same is signed by them. That, the accused no.3 has also admitted before the civil court on affidavit that the land was sold by the complainant to accused no.1 and 2 in Rs. 6 crores and at the time of sale deed only, Rs. 1,50,00,000/- was paid and accused nos. 1 to 2 agreed to pay remaining amount of Rs. 4,50,00,000/- which iss till not paid. That, there is prima facie case against the accused persons and their quashing petitions are required to dismissed.

8. On the other hand, while producing the report dated 17.03.2023 under the signature of Police Sub Inspector, Lodhika Police Station, Rajkot Rural, Rajkot, learned APP for the respondent No.1-State has supported the arguments made by learned advocate for the respondent no.2 and submitted that the allegations made in the impugned complaint are serious in nature and the investigating officer has stated in his report that the accused have tried to grab the land of the complainant and made cheating and breach of trust with the complainant and are absconded also thus, learned APP for the respondent no.2 State has requested to dismiss present application.

9. Having heard learned advocate for the respective parties, it appears from the FIR that the complainant is farmer Page 6 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023 NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined who is doing agriculture work upon the land in question and accused no.3 in the FIR (Kishorbhai Chhaganbhai Aadipara) came in contact with the complainant and seen the land in question and agreed to purchase the said land in Rs.6 crores and it was decided that sale deed to be executed in favor of accused No.1 and 2 (Chhaganbhai Damjibhai Bunsa and Dilipbhai Kanjibhai Patel) and to save stamp duty, all three accused persons have informed the complainant that they will execute sale deed of Rs.38,63,000/- and they will pay remaining amount in cash for which complainant agreed. That, on 02.06.2012 the complainant has sold his land to accused No.1 and 2 (Chhaganbhai damjibhai Bunsa and Dilipbhai Kanjibhai Patel) by way of registered sale deed and the accused persons have paid Rs.1,11,37,000/-in cash and two cheques being cheque no.000064 for Rs.19,31,500/- & cheque no.093278 for Rs.19,31,500/- (in all total Rs.1,50,00,000/-) and all three accused person i.e. accused No.1 to 3 (Chhaganbhai Damjibhai Bunsa, Dilipbhai Kanjibhai Patel and Kishorbhai Chhaganbhai Aadipara) have informed the complainant that the remaining amount of Rs.4,50,00,000/- will be paid within 8 to 10 days and having faith in accused persons as agreed.

10. It further appears from the FIR that since the remaining Page 7 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023 NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined amount was not paid as agreed by the accused persons i.e. accused No.1 to 3 (Kishorbhai Chhaganbhai Aadipara, Chhaganbhai damjibhai Bunsa and Dilipbhai Kanjibhai Patel), one promissory note signed by all three accused persons on 02.06.2012 in which all of them have agreed to pay remaining amount of Rs.4,50,00,000/- by giving three cheques of Rs.1,50,00,000/- each but same was not paid and instead of that, the accused no.1 and 2 i.e. (Chhaganbhai Damjibhai Bunsa and Dilipbhai Kanjibhai Patel) has sold the land of the complainant to accused no.4 (Kuldeepsinh Jaysinh Rathod) and subsequently, the said accused no.4 has sold the land of the complainant to accused no.5 and 6 (Hiteshbhai Lakhmanbhai Rank and Sandeep Vallabhbhai Rank) by stating in the sale deed that possession of the land is also handed over to the purchaser though the possession of the land is still with the complainant. Since, the accused no.1 to 3 have not paid the remaining amount of Rs.4,50,00,000/- as agreed in the promissory note entered between them and signed by them, the complainant has filed Special Civil Suit No.59 of 2017 before the learned Civil Court, Gondal and in the said suit, court has passed order of panchnama of possession of the land and in the panch rojkam of the land in question, possession of the land is proved of the complainant and in the said suit, Accused no.3 Page 8 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023 NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined in the FIR (Kishorbhai Chhaganbhai Aadipara) has also filed an affidavit stating that the remaining amount is not paid by the accused no.1 and 2 i.e. (Chhaganbhai damjibhai Bunsa and Dilipbhai Kanjibhai Patel) and therefore one written complaint was filed before the Lodhika Police Station on 14.05.2018 for registering FIR against the accused persons. The said written complaint was investigated and statement of complainant, statement of sale deed witness as well as all accused persons were recorded and in the said statements also accused no.3 has admitted that the land was sold by the complainant to accused No.1 & 2 in Rs. 6 crores and paid only 1,50,00,000/- and still Rs.4,50,00,000/- is outstanding.

11. It appears from the record that the investigating officer has filed report on 18.11.2018 in which the investigating officer opined that the complainant was cheated by the accused persons and prima facie offence was made out but the investigating officer has filed report stating that as per provisions of the Government resolution, since the civil proceedings are pending between the parties before the civil court, FIR cannot be registered against the accused persons.

12. It further appears that though the investigating officer has opined that prima facie offence is made out but not registered the FIR against the accused persons only on the Page 9 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023 NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined ground that there is civil suit pending between the parties, the complainant has approached the Higher officer and after intervention of higher officer, the investigation was transferred to DCB (Crime Branch) and during the said investigation statements of all witnesses were recorded and the investigating officer came to the conclusion that prima facie offence is made out and therefore again the accused person came to the contact of the complainant and started talks of settlement and orally agreed to pay remaining amount of Rs.4,50,00,000/- and under this talk of settlement, the complaint was closed.

13. It appears from the record that even after the accused persons agreed orally to pay remaining amount of Rs.4,50,00,000/- and because of the same settlement arrived between the parties, again the accused persons have cheated and not paid the said amount.

14. The law laid down by Privy Council in the case of "King Emperor v. Khwaja Nazir Ahmad" reported in AIR 1944 PC 18 , wherein the Privy Council observed that in India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those Page 10 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023 NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus.In the said judgment the law has been laid down in the following manner;

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

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NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognized to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts Page 12 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023 NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR"

15. It appears from the record that the impugned FIR has been lodged on 03.03.2023 and within a short span of Page 13 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023 NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined registration of FIR, the applicants approached this court by way of quashing petition but as per view of this court, let the investigating officer to investigate thoroughly.
16. In view of the findings given by the Apex Court in case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., reported in 2021 (19) SCC 401, it transpires that the power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of the rare cases and it was not justified for the Court in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies.
"It is well settled that at the stage when the High Court considers a petition for quashing criminal proceedings under section 482 of the Cr.P.C, the allegations in the FIR must be read as they stand and it is only if on the face of the allegations that no cognizable offence, as alleged has been made out, that the Court may be justified in exercising its jurisdiction to quash."
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NEUTRAL CITATION R/CR.MA/4906/2023 ORDER DATED: 17/03/2023 undefined

16. Thus, from the aforesaid discussion and as per the report dated 17.03.2023 under the signature of Police Sub Inspector, Lodhika Police Station, Rajkot Rural, Rajkot as has been submitted by learned APP for the respondent-State, this court is not inclined to accept the prayer of the applicants and accordingly, present application stands rejected.

No order as to costs. Rule stands discharged.

(SAMIR J. DAVE,J) K. S. DARJI Page 15 of 15 Downloaded on : Sun Sep 17 22:47:31 IST 2023