Gujarat High Court
Pragnaben Jagdishbhai Shah vs State Of Gujarat on 29 September, 2023
NEUTRAL CITATION
R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 7616 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
PRAGNABEN JAGDISHBHAI SHAH
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR DIGANT B KAKKAD(6523) for the Applicant(s) No. 1
MR PRAVIN GONDALIYA(1974) for the Applicant(s) No. 1
MR. MANAN MEHTA, LD. ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 29/09/2023
ORAL JUDGMENT
1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant-accused seeks to Page 1 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined invoke the inherent powers of this Court praying for quashing of the First Information Report, being C.R. No.I-51 of 2014 lodged with the Jalalpur Police Station, District: Navsari for the offence punishable under Sections 406, 420, 465, 467, 468, 471 and 120(B) of the Indian Penal Code.
2. The facts, giving rise to the present application, may be summarized as under;
2.1 At the relevant point of time, the applicant was desirous of purchasing the agricultural land. One day, the applicant came to know that one land bearing Block/Revenue Survey No.46, admeasuring Hec-Acre-Sq. Mtr. 0-86-81, situated at village Mirjapur, Taluka: Jalalpur, District: Navsari was to be sold.
2.2 Somehow, in the year 2012, the legal heirs of one Chhotubhai Morarbhai Patel, namely, (i) Amrutbhai Chhotubhai Patel (ii) Bhulabhai Chhotubhai Patel (iii) Arjunbhai Chhotubhai Patel (iv) Shushilaben Chhotubhai Patel (v) Chandanben Chhotubhai Patel and (vi) Kumudben Chhotubhai Patel contacted the applicant for the purpose of selling the land in question.
2.3 Therefore, upon verification of the revenue record, the applicant came to know that one Chhotubhai Morarbhai Patel died on 20.06.1983 and thereafter his wife, namely, Jekarben Chhotubhai Patel died on 10.09.1989 and, therefore, the above mentioned legal heirs of said Chhotubhai Morarbhai Patel got their names mutated in the record of rights vide Mutation Entry No.662 on 26.09.2008 which came to be certified on Page 2 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined 11.12.2008.
2.4 It is the case of the applicant that prior to mutation of Entry No.662, the said land was running in the name of Chhotubhai Morarbhai Patel and after fully satisfied with the title upon verification of revenue records and believing the said entry to be genuine one, the applicant agreed to purchase the said land from the legal heirs of Chhotubhai Morarbhai Patel as named herein above.
2.5 It is also the case of the applicant that except Kumudben Chhotubhai Patel, the other legal heirs are residing outside India and, therefore, they have authorized Kumudben Chhotubhai Patel as their power of attorney to execute the sale deed in favour of the applicant.
2.6 The said land was purchased by the applicant by paying consideration of Rs.10,00,000/- and the sale deed in respect of the said transaction also came to be executed and duly registered with the office of the Sub-Registrar at Jalalpur on 27.02.2012 being Sale Deed No.858 of 2012.
2.7. Thereafter, on the basis of the said sale deed, the applicant got their name mutated in the record of rights in the year 2012 vide Revenue Entry No.762, which came to be certified on 04.05.2012.
2.8. It is the case of the applicant that there are two Chhotubhai Morarbhai Patel having properties in village:
Mirjapur, Taluka: Jalalpur, District: Navsari. It appears from the record that legal heirs of one Chhotubhai Morarbhai Patel are Page 3 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined residing at United States and another Chhotubhai Morarbhai Patel is residing at Africa. The Chhotubhai Morarbhai Patel who is residing in Africa is alive as on date.
2.9. One Valabhai Dahyabhai Patel, i.e, the cousin of Chhotubhai Morarbhai Patel who is residing at Africa preferred an application before the Dy. Collector challenging Entry No.662 claiming that the subject land belongs to Chhotubhai Morarbhai Patel who is alive and residing at Africa. He has also alleged that the said Entry No.662 mutating the names of legal heirs of deceased Chhotubhai Morarbhai Patel has wrongly been made.
2.10. Pursuant to the said application, the Deputy Collector passed an order dated 31.07.2012, remanding the matter as to find out the truth upon hearing both the parties and an entry in this regard also came to be made in the revenue records on 21.01.2013 which came to be certified on 08.04.2013, and upon such entry being made in the revenue record, the applicant came to know about the controversy.
2.11 Thereafter, the applicant inquired about the same from Valabhai Dahyabhai Patel and upon being satisfied with the explanation given by him, the applicant felt cheated and, therefore, she gave a complaint in writing to the concerned police authority on 05.03.2014 alleging commission of offence under Sections 420, 506(2) an 120(B) of the Indian Penal Code.
However, no FIR has been lodged pursuant thereto against the legal heirs of deceased Chhotubhai Morarbhai Patel.
Page 4 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined 2.12 Thereafter, Valabhai Dahyabhai Patel has preferred an appeal before the Additional Collector, Navsari challenging the Entry No.762 dated 22.03.2012 mutated in favour of the applicant. Pursuant to filing of said appeal, notice was issued to the present applicant to remain present for hearing on 19.06.2014.
2.13 Thereafter, the Collector, Navsari passed an order directing the Mamlatdar, Jalalpur to lodge a police complaint in the subject matter against the legal heirs of deceased Chhotubhai Morarbhai Patel as referred to herein above. Accordingly, the impugned FIR came to be lodged against the applicant herein and the legal heirs of the deceased Chhotubhai Morarbhai Patel before the Jalalpur Police Station. The applicant is innocent and there are no allegations against the present applicant in the impugned FIR and she has been falsely implicated in the offence. Hence, the present application.
3. Learned advocate Mr. Pravin Gondaliya appearing on behalf of the applicant has submitted that the impugned FIR is registered on 10.05.2014 for the offences mentioned therein. Learned advocate Mr. Gondaliya has submitted that, in fact, the applicant has purchased the subject land from the legal heirs of Chhotubhai Morarjibhai Patel by executed a registered sale-deed in the year 2012. Learned advocate Mr. Gondaliya has further submitted that in the year 2012, before purchasing the said property, the applicant has verified the revenue records and found that one Chhotubhai Morarjibhai Patel died on 20.06.1083 and his wife, namely, Jekarben Chhotubhai Patel Page 5 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined died on 10.09.1989. Therefore, the names of legal heirs of deceased Chhotubhai Morarjibhai Patel came to be mutated in the revenue records on 26.09.2008 vide Entry No.662 and the said entry was also certified on 11.12.2008. The said fact is reflected from the 7/12 abstract of the said property.
4. Learned advocate Mr. Gondaliya has further submitted that at the time of purchasing the subject land, the applicant had verified the revenue records and found that the subject land was running in the name of Chhotubhai Morarjibhai Patel and after his death, the names of his legal heirs came to be mutated in the record of rights. Mr. Gondaliya has also submitted that after fully satisfied with the revenue record and believing the said entry to be true and genuine, the applicant has purchased the said property and as per Section 135-J of the Gujarat Land Revenue Code, an entry in the record of rights and the certification thereof shall be presumed to be true until contrary is proved. Learned advocate Mr. Gondaliya has also submitted that at the time of purchasing the subject land by the applicant, there appeared to be no controversy or dispute going on in respect of the said property and, therefore, the applicant had purchased the said property for the consideration of Rs.10,00,000/- by executing a registered sale deed from the legal heirs of deceased Chhotubhai Morarjibhai Parmar. Learned advocate Mr. Gondaliya has further submitted that the present applicant has entered into the said transaction after verifying and scrutinizing the revenue record and the said transaction on the part of the applicant is genuine and bona fide one. It is also fact on record that the Entry No.662 was mutated in the revenue record in the year 2008 and the Page 6 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined applicant-accused had purchased the said property in the year 2012 by way of registered sale deed and, therefore, it can safely be said that after lapse of four years, the present applicant-accused had entered into the agreement with the legal heirs of deceased Chhotubhai Morarjibhai Patel and record clearly shows and suggests that they are the original owners and occupants of the property. Not only that, at the time of execution of the sale-deed, possession was also handed over to the applicant. Therefore, the action on the part of the applicant is natural, bona fide and after satisfying all necessary and requisite requirements of the law. The applicant has been duped by the so called legal heirs of the Chhotubhai Morarbhai Patel by creating impression in the mind of the applicant that they are the original owners and occupants of the said property and they are the legal heirs of the original Chhotubhai Morarbhai Patel and after the sad demise of said Chhotubhai Morarbhai Patel, being the legal heirs of him, they have become the owners of the subject property and, therefore, considering all those materials and the assurance given by the legal heirs of deceased Chhotubhai Morarbhai Patel, the applicant has entered into the agreement by paying the huge amount of consideration of Rs.10,00,000/- and, therefore, it can safely be said that the applicant is the victim of principle of double jeopardy because she has lost money as well as property. Not only that, she has to face the consequences of legal proceedings and, therefore, the present complaint registered against the applicant is required to be quashed and set aside.
5. Learned advocate Mr. Gondaliya has submitted that as Page 7 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined soon as the applicant has come to know about the registration of the complaint, immediately she has approached this Court by way of preferring this application and obtained order of stay upon the investigation qua the present applicant-accused. The investigation was continued so far as rest of the accused persons are concerned. It is an admitted position of fact that rest of the accused persons have not approached this Court and have also not obtained any order and, therefore, the investigation qua those accused persons was continued, and ultimately, at the end of the investigation, charge-sheet has been filed against those accused persons. Learned advocate Mr. Gondaliya has further submitted that the applicant is residing altogether in a different village and she was, at all, not aware about the systematic design of fraud committed by the co-accused persons and being a victim of the systematic design of fraud committed by the co-accused persons, the applicant may be discharged from the burden of criminal liability by allowing the present application.
6. In such circumstances, referred to above, learned advocate Mr. Gondaliya prays that there being merit in this application, the same be allowed and the impugned FIR be quashed and set aside.
7. On the other hand, learned APP Mr. Manan Mehta has vehemently opposed this application and submitted that one criminal complaint has been registered against the persons named therein and the applicant herein has been shown as accused No.7 in the complaint. It is found out from the record that the present applicant-accused has purchased the land by Page 8 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined way of registered sale-deed duly executed by the legal heirs of deceased Chhotubhai Morarbhai Patel. It is an admitted position of fact that the said Chhotubhai Morarbhai Patel passed away in the year 1983 and he is not the owner of the said property. Coincidentally, in the said village, another person of the same name, i.e, Chhotubhai Morarbhai Patel is the original owner of the said property who is residing at Africa and he is still alive. As the name of said Chhotubhai Morarbhai Patel is there in the revenue record, the accused persons hatched a criminal conspiracy by making hand in glove with each other and got their names entered in the revenue record as the legal heirs of said Chhotubhai Morarbhai Patel by producing the death certificate of deceased Chhotubhai Morarbhai Patel knowing fully well that the subject property belongs to another person whose name is coincidentally Chhotubhai Morarbhai Patel and by taking advantage of the similarity in the names, they have got their names entered in the revenue record and, thereafter, sold the said property to the applicant herein. The original Chhotubhai Morarbhai Patel who is the owner of the said property subsequently had come to about the entry being mutated in the revenue record in respect of the property of his ownership and, therefore, he has made an application to the concerned revenue authority and sought information about the same. The concerned revenue authority, upon receipt of such an application, initiated inquiry into the same and during the course of inquiry, the authority has come to know that under the guise of similarity of the names of two persons of the same village, the accused persons hatched a criminal conspiracy and designed a plan to usurp the property of the original owner by way of illegal means and Page 9 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined as a part of the said conspiracy, they have produced the death certificate of deceased Chhotubhai Morarbhai Patel and on the basis of the same, somehow managed to get their names entered in the revenue records and subsequently the said entry also came to be certified and on the strength of the said evidence, they have sold away the said property to the applicant herein. Learned APP Mr. Mehta has submitted that, in fact, on the strength of the registration of the complaint, investigation was ensued and at the end of the investigation, charge-sheet has also been filed against the accused persons. Learned APP Mr. Mehta has candidly submitted that during the course of investigation, it is not found that the present applicant-accused was well aware about the said conspiracy. He has also fairly submitted that during the course of investigation, nothing concrete evidence is found against the present applicant-accused. Not only that, the present applicant accused has purchased the said property by paying consideration of amount of Rs.10,00,000/- by way of registered sale deed duly executed by the legal heirs of Chhotubhai Morarbhai Patel before the Office of the Sub-Registrar. Therefore, considering the above stated ground reality, appropriate order may be passed.
8. Having heard the learned counsel appearing for the parties and having gone through the materials available on record, it is found out that the names of legal heirs of deceased Chhotubhai Morarbhai Patel have been entered into the revenue record vide Entry No.662 on 26.09.2008. Thereafter, after lapse of four years, in the year 2012, the present applicant-accused has entered into the agreement by Page 10 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined executing a registered sale deed by paying an amount of Rs.10,00,000/-. At the time of registration of the complaint it is specifically stated that deceased Chhotubhai Morarbhai Patel died on 20.06.1983 and his wife died on 10.09.1989 and, therefore, the legal heirs of deceased Chhotubhai Morarbhai Patel got their names mutated in the revenue record vide Entry No.662 on 26.09.2008 which came to be certified on 11.12.2008. Therefore, it can be said that on the strength of the record of rights and the certification of entry in the name of the legal heirs of deceased Chhotubhai Morarbhai Patel in the revenue record, the applicant has presumed it to be true until the contrary is proved. It also appears that after verifying and scrutinizing the relevant revenue records, the applicant has entered into such transaction by paying an amount of Rs.10,00,000/- to the vendors of the property in the year 2012. Thereafter, she has immediately approached the concerned authority for mutating her name in the record of rights and on the strength of the registered sale deed, got her name mutated in the record of rights vide Entry No.762 in the year 2012 which was certified on 14.05.2012.
9. It is also found out from the record that, in fact, there are two Chhotubhai Morarbhai Patel who are having the properties in the village Mirjapur, Taluka: Jalalpur, District: Navsari. For the purpose of better and clear understanding of two Chhotubhai Morarbhai Patel and their legal heirs, I deem it proper to reproduce hereunder a chart duly prepared by the learned advocate for the applicant in the tabular form;
Page 11 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined Chhotubhai Morarbhai Patel Chhotubhai Morarbhai Patel (Resides in Africa) (He is Alive) (Died in year 1983) (Legal heirs Resides in the United States) His Heirs are Legal Heirs being
1) Shantiben Chhotubhai 1) Amrutbhai Chhotubhai Patel Patel
2) Dr. Rajan Chhotubhai Patel 2) Bhulabhai Chhotubhai Patel
3) Dilip Chhotubhai Patel 3) Arjunbhai Chhotubhai Patel
4. Kiranbhai Chhotubhai Patel 4) Shushilaben Chhotubhai Patel
5) Chandanben Chhotubhai Patel
6) Kumudben Chhotubhai Patel The name of above persons was mutated in the revenue records and record of rights in the year 2008 for the subject land. Revenue Entry No.662 They sold the subject land to present applicant in the year 2012 after receiving appropriate consideration of Rs.10,00,000/-.
One Valabhai Dahyabhai Patel, cousin of Chhotubhai Morarbhai Patel. 10. Subsequently, one day the cousin of Chhotubhai
Morarbhai Patel who is alive, namely, Valabhai Dahyabhai Patel came to know about the mutation of the said entry and, therefore, he had preferred a revision application before the Deputy Collector, challenging the Revenue Entry No.662 specifically stating that the said land belongs to Chhotubhai Morarbhai Patel who is alive and residing at Africa. It is also Page 12 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined specifically stated in the said application that the Revenue Entry No.662 in favour of the legal heirs of deceased Chhotubhai Morarbhai Patel has wrongly been made in the record of rights. Pursuant to the said application, an order was passed by the Deputy Collector, remanding the matter back to find out the truth upon hearing both the parties and an entry with regard to the said order being No.RTS/Appeal/6/2012 dated 31.07.2012 was also made in the revenue record on 21.01.2013 which was subsequently certified on 08.04.2013. On the strength of the said order passed by the Deputy Collector, the applicant came to know about the present controversy and, therefore, she had inquired about the said controversy from Valabhai Dahyabhai Patel, and upon being satisfied with the explanation given by Valabhai Dahyabhai Patel, the applicant realized and felt that she has been cheated by the legal heirs of deceased Chhotubhai Morarbhai Patel. Therefore, immediately she has given a complaint in writing to the Police Officer, Jalalpur Police Station on 05.03.2014 alleging offence under Sections 420, 506(2) and 120(B) of the Indian Penal Code. The applicant had tried her level best to register complaint against the original accused persons who had cheated her, but failed to succeed in her attempts and all her attempts were gone in vein. It is also an admitted position of fact that the said controversy reached to the table of the Collector, and the Collector has verified and scrutinized all the papers and found that very serious offence has been committed by the accused persons by creating forged and fabricated entry on the basis of supply of wrong information knowing fully well that they are not the owners and occupants of the said property. They have created impression in the mind Page 13 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined of the Government Machinery that they are the original owners of the said property. Not only that they have also tried to see to it that their names are to be mutated in the revenue records and, subsequently, after certification of the said entry, they have sold away the property to the third party and earned amount by playing fraud. Therefore, the Collector, Navsari has given specific direction to the Mamlatdar, Jalalpur to register the complaint in the said subject matter against the legal heirs of deceased Chhotubhai Morarbhai Patel as well as the present applicant.
11. I have gone through the materials on record and it is found out that the concerned Investigating Officer has carried out the investigation on the strength of the registration of the complaint and ultimately at the end of the investigation, filed charge-sheet against the accused persons whose names have been shown in the complaint except the present applicant- accused as specific stay was granted by this Court in favour of the present applicant. It also appears from the materials available on record that the applicant-accused is altogether residing in a different village and not aware about the conspiracy hatched by the legal heirs of the deceased Chhotubhai Morarbhai Patel at the time of execution of the sale deed and has purchased the said property after verifying and scrutinizing the mutation entries running in the name of the legal heirs of deceased Chhotubhai Morarbhai Patel in the revenue record by paying consideration of Rs.10,00,000/-. Therefore, I am of the opinion that even if the entire case of the first informant is accepted as it is, none of the ingredients to constitute the offence under Sections 406, 420, 465, 467, Page 14 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023 NEUTRAL CITATION R/CR.MA/7616/2014 JUDGMENT DATED: 29/09/2023 undefined 468, 471 and 120(B) of the IPC could be said to have been spelt out. Thus, the impugned FIR lodged against the present applicant-accused deserves to be quashed and set aside.
12. In the result, this application succeeds and is hereby allowed. The first information report being C.R. No.I-51 of 2014 registered with the Jalalpur Police Station, District: Navsari is hereby quashed and set aside qua the present applicant. All consequential proceedings arising from the same also stands terminated. Rule is made absolute to the aforesaid extent.
(DIVYESH A. JOSHI,J) VAHID Page 15 of 15 Downloaded on : Fri Oct 06 20:30:39 IST 2023