Gujarat High Court
Rameshbhai Mangilal Nayka vs State Of Gujarat on 22 February, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD RISPECIAL CRIMINAL APPLICATION NO. 8100 of 2019 With RICRIMINAL MISC.APPLICATION NO. 15803 of 2019 RAMESHBHAI MANGILAL NAYKA Versus STATE OF GUJARAT Appearance:-SPECIAL CRIMINAL APPLICATION NO.8100 OF 2019 MR.HIREN M MODI(3732) for the Applicant(s) No. 1 MR SUDHIR) NANAVATI, SENIOR ADVOCATE for NANAVATI & NANAVATI(1933) for the Respondent(s) No. 4 NOTICE SERVED BY DS for the Respondent(s) No. 2,3 MS MOXA THAKKAR, APP for the Respondent(s) No. 1 Appearance:-CRIMINAL MISC.APPLICATION NO.15803 OF 2019 MR SUDHIR) NANAVATI, SENIOR ADVOCATE for NANAVATI & NANAVATI(1933) for the Applicant MS MOXA THAKKAR, APP for the Respondent(s) No. 1 MR.HIREN M MODI(3732) for the Respondent No.2 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE Date : 22/02/2022 ORAL ORDER
1. Special Criminal Application No.8100 of 2019 is filed under Article 226 of the Constitution of India praying as under:-
"(a) <A for writ of mandamus or any other appropriate writ, order or direction to the respondent No.1 to form a Special Investigation Team preferably comprising of officers from another District to investigate into the complaint of the petitioner, which is now FIR being as Magisterial Case No.01/2019 before the Vyara Police Station, Tapi and to prosecute the offending persons named in the complaint, and to submit final report in a time Page 1 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 bound manner;
(b) Fora writ of mandamus or any other appropriate writ, order or direction to the respondent No.2 to take necessary legal actions against respondent No.4, and in the meantime suspend him from his post of District Government Pleader and Public Prosecutor, of Tapi district with immediate effect;"
1.1 Where as the Criminal Misc.Application No.15803 of 2019 is filed for following relief:
"(A) YOUR LORDSHIPS may be pleased to quash and set aside the Impugned FIR bearing No. M.Case 01/2019 lodged at the Vyara Police Station, District: Tapi, dated 16.07.2019 for the offence punishable under section 120(b), 406, 416, 419, 420, 464, 465, 467, 468, 471 and 511 of the Indian Penal Code at Annexure "A" hereto, in the interest of justice;"
2. The parties are addressed as per their status in Special Criminal Application No.8100 of 2019.
3. Learned Advocate for the petitioner submitted that the wife of petitioner namely Radhaben has filed different revenue litigations in regard to her ancestral land, which is a Restricted Tenure Land, and the matter is now pending before this Honorable High Court for its final adpucication. That, the petitioner Rameshbhai Manglal Nayka had given a Crimimal Complaint before Vyara Police Station on 29/05/2019 against respondent No.4 Page 2 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 Mr.V.M.Trivedi and against his associates alleging that he 1s involved in a Bank Scam and he had issued Bogus Title Clearance Certificates. It is the allegation of petitioner that Mr. V.M. Trivedi ie respondent no.4 was out of India from 14/05/2016 to 03/07/2016 and even though he appeared before the office of Sub Registrar, Vyara and carried out searches of different 46 immovable properties, and he also paid the necessary fees to the Government, and thereafter he also entered into the correspondence with the different Banks on different dates, and thereafter respondent No.4 had issued bogus Title Clearance Reports in regard to the different immovable properties, and on the basis of such Tithe Clearance Reports, loans worth lacs of rupees were granted by the banks to the different property holders. The written complaint, along with the documentary evidences, was given to the Police Inspector, Vyara Police Station on 29.05.2019.
3.1 The Police had declined to register the FIR and therefore, the complainant/petitioner Rameshbhai approached Superintendent of Palice, Tapi at Vyara (respondent No.2 herein) on 30/05/2019 with his complaint but, Superintendent of Police, Tapi at Vyara also did not take any action against the respondent No.4 Mr. V.M. Trivedi, though there were ample evidences to prima facie show that, cognizable offence was committed by the respondent No.4 Mr, V.M.Trivedi and therefore, complainant Rameshbhai filed a Crimimal Miscellaneous Application bearing Page 3 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 NO.46/2019 before the Court of Chief Judicial Magistrate, Vyara and the Court called or the report of "police, and thereafter on different dates hearing took »lace and ultimately, even though there were ample evidences against respondent NOQ.4, willfully and wrongly the closure report was submitted by Vyara "police stating that no offence is made out. That, after perusing Police Papers, and after hearing arguments of the learned advocate, the learned Chief judicial Magistrate, Vyara on 16/07/2019 was pleased to direct the Police Inspector, Vyara Police Station, to register an FIR against the respondent No.4 Mr. V.M.Trivedi under Sections 120(B), 406, 416, 419, 420, 464, 465, 467, 468, 471 read with Section 511 of the Indian Penal Code.
3.2 it is submitted that the past of respondent No.4-Mr. Virendra M. Trivedi is not good. Vyara Bar Association had unanimously passed a resolution in the year 2013, in which the Hon'ble Law Minister as well as the Hon'ble Minister were informed by the Vyara Bar Association clearly stating that Vyara got separated ittfrom that of Surat District and Tapi District has come into existence and APP Mr. V.M. Trivedi was conducting the cases on behalf o the State of Gujarat but, we have very strong objection against Mr. V.M.irvedi for the selection of the post of D.G.P. because he is a very suspicious person. He is making harassment to the advocates and to the Hiigants.
3.3 it is submitted that Mr. V.M.Trivedi has indulged in Page 4 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 corruption and therefore he should not be given Post of D.G.P., and if he is posted as D.G.P. then the Itigants as well as advocates will have to suffer. It has been further stated in the Resolution of Bar Association, Vyara that Mr. V.M.Trivedi is a corrupt, dishonest and head strong Additional Public Prosecutor and if he is given the Past of Public Prosecutor then there will be Iots of problems. Tt is submitted that the petitioner herein has sent various Memorandums along with all the necessary documents learned Registrar General Saheb of Honorable High " Court, Honorable the Chief Justice Saheb of the Honorable High Court, Honorable the Unit Judge Saheb of Tapi District, Secretary Shri Pankajkumar saheb IAS Home Ministry, Secretary Shri Brijeshkumar Jha saheb IPS Home Ministry and to the Kailashnathan saheb of CMO office but, till today there is no progress in the complaint of the petitioner.
3.4 it is submitted that That, after the registration of FIR, respondent No.2 has transferred investigation to the DySP shri Rai. But, the Investigating Officer DySP shri Rai (Respondent No.3 herein} was not doing any progress in the case of complainant/ petitioner and was not collecting signatures of respondent Virendra M. 'Trivedi for the purpose of sending them to the Hand Writing Expert for comparison of his disputed signatures with that of the admitted signatures, and therefore the petitioner herein bimself contacted a Hand Writing Expert of Ahmedabad Page 5 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 namely shri K.P. Vyas and paid him necessary fees of Rupees Ten Thousand and brought Expert's Report and the Expert has given his detailed report stating in it that there appears symptoms of forgery and the disputed documents are forged documents. The petitioner has handed over the Investigating Officer the original forwarding letter and original six paged Hand Writing Expert's Report and original five paged photographs on 13/08/2019 along with true copy of the receipt of money paid but, even after submitting the required prima facie cogent evidences to the Investigating Officer, there is no progress in the investigation.
3.5 it is argued that the petitioner herein made so many representations to the first and third respondents seeking police protection to his life and security and such representations are received by the first and third respondents but they have not felt it necessary to provide police protection to the petitioner's life and liberty. Since, there is a threat to his person and the authorities have failed to perform their duties a writ of mandamus directing the police authorities to give protection to the person is required to be issued. At the same time, writ in the nature of direction to speed up the investigation in M.Case No.1 of 2019, Vyara Police Station, is also required to be given and formation of a Special Investigating Team.
3.6 it is argued that the petitioner has submitted hand writing expert's report dated 10.08.2019, before the Investigating Page 6 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 Officer Dy.S.P. Shri Rai on 13.06.2019, in which the hand writing expert has clearly pointed opined that there seems symptoms of forgery and prima-facie case of forgery has been made out but, even though there is no progress in the complaint.
3.7 it is argued that the petitioner and his family members are being harassed at the instance of respondent Na.4 and the petitioner is likely to be arrested for no fault of him at the instance of respondent No.4 herein. The petitioner is likely to be arrested by Kakrapar Police under section 151 of CrPC and he is likely to be produced before the Executive Magistrate, Vyara for the purpose of giving bail and bond for keeping peace, and the police frequently calls the petitioner to present himself before Kakrapar police Station, though the fact is that the petitioner himself had given complaint before Kakrapar Police Station regarding threats of respondent No.4.
4. AS against this learned Senior Advocate appearing for the private respondent by relying upon the pleadings of the application being Criminal Misc. Application No.15803 of 2019 submitted that the applicant herein is holding the office of Additional Public Prosecutor since last 20 years and is serving as Public Prosecutor since 2013 till date. It is submitted that the applicant herein is in legal profession since last 34 years. It is submitted that (the applicant herein has been falsely roped in the impugned complaint without any iota of evidence against the Page 7 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 applicant herein.
4d it is submitted that the complamant has lodged this impugned complaint at the behest of one Nitin Pradhan who happens to be the lawyer of the present complainant. The said Nitin Pradhan on many occasion has out of prejudice and mala fide intentions made many allegations against the applicant without any sufficient proof. That the applicant herein has also mentioned about the mental harassment that Mr. Nitin Pradhan has caused to the present applicant through a letter addressed to Hon'ble the Chief Justice of High Court of Gujarat dated 05.04.2019. The extent of mental harassment that Mr. Nitin Pradhan has caused to the present applicant can also be made out from the fact that one Yusuf Shankarbhai Gamit who happens to be the clhent of Mr. Nitin Pradhan, has admitted that the said Mr. Nitin Pradhan provoked and induced him to file false complaint against the present applicant. It is further submitted that the said fact is mentioned by way of an affidavit affirmed by the said Yusuf Shankarbhai Gamit in which the clear malafide intention of Mr. Nitin Pradhan is evident against the present applicant.
4.2 in the FIR, it is submitted that as far as allegations made in the complaint are devoid of any sufficient proof therefore filmg of the present complaint is mere an abuse of process of law. It is submitted Chat as far as allegations leveled against the applicant with regards to helping one Chetan Bhatt who happens to Page 8 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 be the friend of applicant as per the say of the complainant, by forging the "Will" and thereby fraudulently purchasing the tribal land from the wife of the complainant, the applicant most humbly submits that since the FIR came to be lodged against Mr. Chetan Bhatt, in that subject matter, one quashing application bearing CRMA No. 29548 of 2017 with CRMA No, 23976 of 2017, came to be filed against that impugned FIR being -C.R. No. 26 of 2016 before this Court (Coram : Hon'ble Mr. Justice A.S. ° Supehia } wherein this Court after hearing both parties, the Court was of the view that the impugned FIR was filed with an oblique motive and moreover, after perusing the FSL report it was found that the the "Wuiul'? was not forged and the same was genuine and also the Court observed that the said FIR was false. Ht is submitted that, Ht becomes all the more clear that applicant's role in the aforesaid allegation cannot be established at all. Therefore, it only makes out the & malafide intention of the complainant to wrongfully implicate the present applicant without any sufficient Cause. As far as second allegation with regards to the obtaining of the search reports of different properties despite the fact that the applicant herein was not in India at the relevant point of time is concerned, the applicant submits that he is serving as the panel advocate in Bank of Baroda since 2004. Therefore, keeping in mind the nature of allegations leveled in the impugned complaint, it is submitted that during the period of 14.05.2016 to 03.07.2016 the applicant herein was not present in India and it was not he himself that was present before Page 9 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 the Sub-Registrar's office, in fact it was applicant's assistant who were in the absence of the applicant were also authorized to sign and obtain the search report of the properties mentioned in the impugned complaint. [t is submitted that applicant's function and role in the approving the title clearance is only confined to the approval of the certificate after verifying the requisite documents. it is only the functioning of the bank to scrutinize the documents and after taking into account other financial formalities, the bank sanctions and approves the loan. Therefore, its mere functionality of the bank and the applicant's role thereof is merely on approval basis after verifying documents and not the sanctioning authority of any kind of financial transaction whatsoever.
4.3 it is submitted that the concerned bank authority as well as the Investigating Officer in his report dated 11.07.2019 has himself stated that during the course of the preliminary inquiry, nothing against the applicant was found and the applicant herein did not indulge in any illegal acts as well as in preparation of the faise and bogus search report as well as in preparation of bogus title clearance reports.
5. The Court has heard submissions of rival parties and perused the documents placed on record. From the facts, it appear that in Criminal Misc. Application No.15803 of 2019, while issuing notice by order dated 26.08.2019 this Court had ordered 'No coercive steps" which order was extended on 19.09.2019. The Page 10 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 complainant filled Criminal Misc. Application No.1 of 2019 for vacating the interim relief vide order dated 26.08.2019. This application came to be rejected on 26.09.2019. Against this order, the complainant filed Special Leave to Appeal (Cri.} No.9544 of 2019 which came to be disposed of by an order dated 21.10.2019, which reads as under:-
"We are informed by Mr.Gopal Shankarnarayana, learned senior counsel that Criminal Misc.Application No.15803 of 2019 is listed on 26.11.2019 before the High Court.
We request the High Court to dispose of the application on that date.
The reply of the complainant be taken on record within a period of two weeks from today.
We have not expressed any opinion in the matter. The Special Leave Petition is, accordingly, dismissed.
Pending Application(s) shall stand disposed of."
6. The complainant filed an affidavit in Criminal Misc. Application No.15803 of 2019, mainly levelling allegation on the functioning of the respondent V.M. Trivedi. However, nothing concrete in connection with the lapse, if any, in connection with the FIR in question M.Case No.O1 of 2019 has come on record.
~~] The entire episode appears to have a colour of a Page 11 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 professional rivalry between two practicing lawyers in the Court at Vyara. It will be pertinent to refer to few facts which appear to be the root of the matter. The respondent V.M.Trivedi had addressed one letter dated 05.04.2019 to the Chief Justice of Gujarat High Court referring to a complaint made regarding malpractice of certain nature to the Principal District Judge and the Registrar, Vigilance. This appears to be triggering point when complainant made a written application to Vyara Police Inspector on 29.05.2019 making allegations of offences which allegedly took place between 14.05.2016 to 03.07.2016. This complaint aiso refers to the advocate Nitin Pradhan and thereafter on 20.06.2019 Criminal Misc. Application No.43 of 2019 is filed in the Court of Chief judicial Magistrate at Vyara where in-charge CJM passed final order on 20.06.2019 directing the Police Inspector, Vyara to remain present on 24.06.2019. On 16.07.2019, the Chief Judicial Magistrate passed an order invoking Section 156(3) of the Criminal Procedure to register an FIR and accordingly, M. Case No.1 of 2019 came to be registered.
a. Against the complaint before Police Inspector and after the order to register FIR, respondent No.4 V.M.Trivedi filed Criminal Misc. Application No.i2144 of 2019, but withdrew the same with liberty to file afresh in case FIR is ordered to be filed. This order was passed on 01.07.2019. It is thereafter MCRA is filed for quashing of the FIR in one hand and a petition by the Page 12 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 complainant to transfer the investigation. The quashing petition was filed on 19.08.2019 and transfer of investigation was filed on 21.08.2019 which gives an indication of "Cat and the Mouse chase."
9. Be that as it may, the investigation has proceeded further during the pendency of the petitions and this Court has adjourned the petitions from time to time even on the basis of joint request where ever necessary the Court has examined the ongoing investigations and has passed clarificatory orders. Reference he made to order dated 26.11.2019 in particular.
10. Ultimately, the investigating report has been placed before the Chief Judicial Magistrate on 23.01.2020 which is the nature of 'B' summary with prosecution. The gist of the report is that During the entire aforesaid investigation, it is found that Mr. Virendra Mulshankar Trivedi had actually gone to foreign trip during 14/05/2016 to 03/07/2016 and before that he had signed the application to get the search done from the office of the Sub registrar. Junior advocate Rohitbhai Mohanbhai Gamit filled the necessary details in the said search applications, got the search done, prepared title clearance report and sent the same to Mr. Virendra Mulshankar Trivedi through Mahabali Express Courier, who after signing title clearance report, used to return it at the office of Mr. Virendra Mulshankar Trivedi at Vyara. Rohitbhai used to send this title clearance report to the bank. Moreover, it is found Page 13 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 during investigation that on the basis of title clearance report issued by Mr. Virendra Mulshankar Trivedi during 14/05/2016 to 03/07/2019, no complaint was lodged by panel advocate Mr. Virendra Trivedi with the complainant in this case or any other person, through Bank of Baroda or Sub registrar office, Vyara and no fraud regarding loan was found.
11, During investigation in this case, it is found that the complainant in this case, Mr. Rameshbhai Mangilal Nayka, resident of Tadkuva Dungari Faliyu, Taluka-Vyara, District- Tapi, does not have account in any branch of Bank of Baroda of Tapi District . Moreover, he has not submitted any application to the bank for personal loan or loan on any land. No proceedings have taken place regarding his loan. In connection to his application, no application is submitted by the Bank of Baroda for panel advocate Mr. Virendra M. Trivedi before the office of the Sub registrar for getting the search done or to get loan on the land of the complainant. Panel advocate Mr. Virendra M. Trivedi has not conducted investigation in the search application of the complainant regarding the aforesaid matter.
12. In the year 2013, complainant in this case Ramesh Mangilal Marwadi and complainant Mrs. Radhaben Nayka, along with the police officers of Tapi District, investigating the offense of Atrocity, used to meet Mr. Virendra M. Trivedi on the date of Court hearing. Mrs. Radhaben had lodged the offense of Atrocity against Page 14 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 Chetan Bhatt and other persons at Kakrapar police station vide I 26/2013. In connection to this offense, opinion of Mr. V. M. Trivedi was sought by the Tapi District Police in the year 2016 as to whether the offense related to Atrocity was committed or not. In the said case, Mr. Virendra M. Trivedi provided his opinion as Public Prosecutor. Thereafter, the Hon'ble High Court ruled in favor of the accused Chetan Bhatt and other accused persons, noting that no offense amounts to the aforesaid complaint. Hence, the complainant in this case Mr. Ramesh Mangilal Marwadi who accompanied Radhaben Nayka, held grudge. Therefore, he hatched conspiracy against Mr. Virendra M. Trivedi and made false allegations that he had prepared fabricated sale deed, submitted wrongful title report to the bank and in collusion with the bank, embezzled lakhs of rupees and filed complaint at Vyara police station and submitted application before the Superintendent of Police, Tapi. Police station in-charge, Vyara was investigating the aforesaid applications. At that time, the complainant Ramesh Mangilal Nayka and advocate interfered in the investigation of police officers. Therefore, the police officers responded that the investigation is ongoing. Hence, the complainant and his advocate lodged Misc. Application before your Court and stated that the policemen are not investigating the applications and they are not lodging offense on the basis of application. On the basis of the said application, the Hon'ble Court sought investigation report of the applications from the in-charge of Vyara police station. The police Page 15 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 station in-charge at the respective time investigated the application and submitted a report to the Hon'ble Court that the offence is not occurred in the said matter. Being aggrieved with the investigation report of police, the complainant submitted a complaint to the Hon'ble Court. On the basis of the said complaint, Hon'ble Court has passed an order under section 156(3) of Cr.P.C to submit a report after conducting investigation.
13. Thus, during the whole investigation, it has not been found that the accused persons mentioned in the complaint, namely (1) Virendra Mulshankar Trivedi (2) Bank Manager(@who sanctioned loans of various banks at respective time) (3) Officers seeking title clear reports from the accused no - 1 (4) All the persons who played their role in the pre-planned conspiracy of accused no - 1 and committed criminal activities in collusion with accused no - 1, obtained fabricated and bogus search during the foreign tour of accused no - 1 Virendra Mulshankar Trivedi and got prepared title clearance reports and submitted the same in the bank and got information from the bank or the registrar office and misused it. Neither it appeared in the investigation that a scam regarding agricultural/property loan has been done. They have not prepared any fabricated documents for the purpose of cheating after hatching a conspiracy. Neither it has appeared that they committed cheating or criminal breach of trust.
i4, in view of the aforesaid report, learned advocate for the Page 16 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 applicant in Criminal Misc. Application No.15803 of 2019 does not press this application keeping all his options upon the decision of the Chief Judicial Magistrate on the aforesaid report. In case the decision of the Chief Judicial Magistrate is against the applicant of Criminal Misc. Application No.15803 of 2019, it will be open for him to resort to any remedy available tao him under the law including challenging the order of Chief Judicial Magistrate for that purpose, the applicant may not be arrested for two weeks from the adverse decision if any.
15. insofar as prayer for transfer of investigation is concerned, the law laid down by the Apex Court is very clear where the transter of investigation can be ordered where the facts of the case match following parameters.
(a) Where if is necessary to do justice and inspire confidence in investigation.
(6b) Where it is necessary to have a fair, honest and complete investigation.
{c} Where high state official and authorities are involved and likely to influence the investigation. (d} Where investigation by police lacks credibiltty.
(e} Where investigation is tainted/biased.
16. in the facts of the present case, as narrated hereinabove, the Court is of the view that the settled parameters Page 17 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022 R/SCR.A/8100/2019 ORDER DATED: 22/02/2022 are not fulfilled and this is not a fit case to invoke Section 226 to transter investigation particularly when the issue is to be examined by the Chief Judicial Magistrate. Moreover, the complainant still has a chance to object to the summary report and seek necessary direction from the Chief Judicial Magistrate.
17, In view of the aforesaid, no case is made out for interference. Hence, Special Criminal Application No.8100 of 2019 stands dismissed. Notice is discharged. Criminal Misc.Application No.i5803 of 2019 also stands disposed of as not pressed. Notice is discharged. Interim relief granted earlier stands vacated.
(A.Y. KOGJE, J) SHITOLE Page 18 of 18 Downloaded on : Sun Apr 24 13:52:52 IST 2022