Gujarat High Court
Girishbhai vs State on 19 July, 2011
Author: M.D.Shah
Bench: Md Shah
Gujarat High Court Case Information System
Print
CR.MA/4957/2011 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 4957 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
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 ?
=========================================================
GIRISHBHAI
JASHWANTLAL BHATT - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
KB ANANDJIWALA for
Applicant(s) : 1,
MS CM SHAH, APP for Respondent(s) : 1,
RULE
SERVED BY DS for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 19/07/2011
ORAL
JUDGMENT
The present application under Sec.482 of the Code of Criminal Procedure has been filed for quashing of charge sheet numbered as Criminal Case No.263 of 2011 arising out of M.Case No.1 of 2008 at Maninagar Police Station(Inquiry Case No.8 of 2008) for the offences punishable under Sections 406, 420, 467, 468, 471 and 120-B of IPC.
Facts in short are that a complaint was filed by the respondent No.2-complainant in the Court of Metropolitan Magistrate, Court No.15, Ahmedabad, numbered as Inquiry Case No.8 of 2008 against four accused for the offences punishable under Sections 406, 420, 467, 468, 471 and 120-B of IPC. The complaint states that the complainant is a builder, who purchased a bungalow named Meghdoot in the year 2000 situated in Khokhra Mehmedabad admeasuring 708 sq.mtr. As there were number of tenants on the ground floor, he struck a deal with them to construct a building and to allot them shops of the same size on the ground floor. Accordingly, an agreement was executed on 8-3-2000 between accused No.2-Chairman of Gokul Owners Association and complainant being the owner of Parth Construction. The building named 'Gokul Palace' was constructed and possession of the shops was handed over to the original tenants by issuing share certificates. It was alleged that the accused Nos.2 and 3 took loans from Bank of India, Lal Darwaja Branch, by mortgaging the shops and offices of other members of the Association and by obtaining false and fabricated documents from advocate and misusing the letter heads of Gokul Owners Association on which bogus and forged resolutions were typed. Accused No.2 stood as a guarantor on behalf of accused No.1. It was alleged that as the loan amounts were not paid by accused No.1 firm, mortgaged properties were sealed and it is at that time the members of the Association came to know for the first time of the fraud being played on them by accused Nos.2 and 3. It was alleged that as the accused Nos.1,2 and 3 committed fraud, a suit was filed in the Court of City Civil Court, Ahmedabad. The aforesaid complaint was sent for investigation under Sec.156(3) of Cr.P.C. by the learned Metropolitan Magistrate after hearing the learned advocate for the complainant. At the end of investigation, charge sheet was filed in the case. Hence, the present application is filed for quashing of the complaint.
Heard learned advocate, Mr.K.B.Anandjiwala for the applicant and learned Addl. Public Prosecutor, Ms.C.M.Shah for the respondent No.1-State.
It is submitted by Mr.Anandjiwala for the applicant that applicant is innocent and has not committed any offence. There is no material connecting the applicant with the alleged crime, he submitted. It is further submitted that the applicant is a practicing advocate and is doing the work of documentation and is on the panel of Bank of India. The allegation against him is that he issued Title Clearance Certificate and abetted in committing the crime. According to him, title clearance certificate used to be issued by the applicant on production of xerox copies of various documents and loan papers sent by the bank and on verification of revenue record. It is further submitted that revenue record would disclose as to in whose name the property stands and nothing beyond that and when Chairman and Secretary of the Association namely, the accused Nos.2 and 3, issued bogus share certificates, forged and fabricated resolutions on the letter head of Society, bogus allotment letters, no due certificate etc., the applicant can never be held liable. According to him, loan has been granted by the bank in pursuance of acceptance of bogus title clearance certificates issued by M/s Soni Associates Advocates and production of various other documents regarding mortgage. Relying on a decision of this Court dated 13-12-2001 rendered in Cri.Misc.Appln.No.1583 of 2001 quashing the FIR in a similar set of facts and circumstances, it is submitted that case of the applicant is on the similar footing and hence, the complaint may be quashed.
Learned APP, on the other hand, has submitted that the applicant has issued the title clearance certificate based on which the bank has granted loan and hence, he is one of the conspirators in committing the alleged crime and since prima facie ingredients of offence allged against the applicant has been disclosed against the applicant, complaint may not be quashed.
This Court has gone through the complaint as well as the records and proceedings. It appears that the applicant is an advocate, who issued title clearance certificate based on the documents produced by the bank along with the loan application papers. Nothing is forthcoming from the record to indicate as to whether he has gained anything from the alleged crime. Moreover, nothing is there on record to indicate as to in which manner the applicant has played the role of a conspirator. He does not appear to have any connection with other accused, who allegedly played role in obtaining the loan. He being a professional advocate in the panel of the bank has to issue certificate on perusal of the documents produced by the bank along with the loan papers. When his role as a conspirator could not be prima facie established from the record, he cannot be tried for the offences alleged and hence, complaint qua him is required to be quashed. This Court cannot appreciate the evidence appearing on the record as it may prejudice the parties at the time of trial.
It is to be noted that in a similar fact situation, complaint filed against an advocate, who issued title clearance certificate was quashed by this Court vide order dated 13-12-2001 passed in Cri.Misc.Appln.No.1583 of 2001. In view of the above also, the complaint qua him is required to be quashed.
In view of the above, Criminal Case No.263 of 2011 arising out of M.Case No.1 of 2008 at Maninagar Police Station (Inquiry Case No.8 of 2008) and the proceedings thereunder are quashed qua the present applicant. The application is accordingly allowed. Rule is made absolute to the aforesaid extent.
Observations by this Court in this judgment being made for the purpose of deciding this application qua the present applicant shall not be a binding precedent on any other accused.
(M.D.SHAH,J.) radhan Top