Gujarat High Court
Arjanbhai Bhagabhai Dangar & 4 vs State Of Gujarat & on 21 February, 2017
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/14713/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 14713 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
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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 or any
order made thereunder ?
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ARJANBHAI BHAGABHAI DANGAR & 4....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ASHISH M DAGLI, ADVOCATE for the Applicant(s) No. 1 5
MR KP RAVAL, APP for the Respondent(s) No. 1
MR NANDISH THAKKAR, ADVOCATE for THAKKAR AND PAHWA ADVOCATES for the
Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 21/02/2017
CAV JUDGMENT
1. By this application under Section 482 of the Code of Criminal Procedure, the petitioner has prayed for quashing of the First Information Report being C.R. No. I-107/2011 registered with Jetpur City Police Station for the offence punishable under Sections 406, 420, 506(2), 120B and 114 of the Indian Penal Code.
2. The case, as made out by the respondent no.2 herein in his Page 1 of 20 HC-NIC Page 1 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT First Information Report, may be summarized as under; 2.1 The complainant is resident of Rajkot and having shop under the name and style of Patel Plywood at Rajkot. A land bearing survey No. 189/2 (21697 sqr. Meter) located at village Pedhla and Badhabhai Sidabhai Makwana is the original owner of the said land and the father of the complainant namely Mansukhbhai had purchased the said land in the year 1984 on two stamp papers of Rs.5.00 and on 05.04.1984, original owner of the land had transferred the said land in the name of father of the complainant and for which, consideration was paid. On 28.05.1985, on a stamp paper of Rs.10.00, the receipt of payment of amount was also issued and since then, the father of the complainant was doing administration of such land and for which, Badhabhai had executed power of attorney in favour of father of the complainant on a stamp paper of Rs. 50/- on 28.05.1985 and thereafter, the land was converted into Non Agricultural land. But, on 08.03.2005, the father of the complainant passed away, and therefore, all the liability came on the shoulder of the complainant and as he was in need of money, he had decided to sell the said land and contacted the friend of his father namely Govindbhai Savasani. 2.2 Thereafter, in the month of July, 2006, this Govindbhai had called for the documents of the land of the complainant to enable him to show it to some customers and thereafter, through Govindbhai, the complainant came in contact with one Arjanbhai Dangar and on consideration of Rs. 20 lacs, the transaction was finalized. After the transaction was finalized on 03.08.2006, when the complainant was Page 2 of 20 HC-NIC Page 2 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT at his shop and thereafter, he was informed by Arjabhai that as he intends to see the land in question and therefore, alongwith other persons they went to the place and thereafter, the complainant was taken to the office of one advocate Mr. Mehta wherein original owner Badhabhai, his legal heirs were present and thereafter, with the help of advocate namely Sanatbhai Mehta, notarized document was prepared and Rs. 65,000/- was paid and signature of the complainant was taken as a witness thereof. On the basis of their assurance, the complainant put his signature and came back to Rajkot and on the next day i.e. on 04.08.2006, as per mutual agreement, Rs. 20 lacs was to be given to one Nileshbhai, however, the amount was not paid and accordingly, time and again inquiry was made, but the payment was not made and therefore, the complainant has filed impugned complaint.
3. Heard learned advocate Mr. Ashish M. Dagli appearing on behalf of the petitioners, learned advocate Mr. Nandish Thakkar for Thakkar and Pahwa Advocates appearing on behalf of the respondent no.2 and learned APP Mr. KP Raval appearing on behalf of the respondent no.1-State.
4. It was submitted by Mr. Ashish M. Dagli, learned advocate for the petitioners that a false complaint is lodged by the respondent no.2-first informant before Jetpur Police Station being CR No.I-107 of 2011 on 3rd August, 2006 for the offence punishable under Sections 406, 420, 506(2), 120B and 114 of the Indian Penal Code. It is further argued that land in dispute, situated at village Pedhla bearing survey Page 3 of 20 HC-NIC Page 3 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT No. 189/2(21697 sqr. Meter of land) is originally owned by Badhabhai Sidabhai Makwana, who passed away on 8th March, 2005. That the complainant was never owner or had any right, title or interest in the said land. However, criminal proceedings were initiated by the respondent no.2-complainant. It is a gross abuse and misuse of the process of law. That, after long delay of more than 5 years, entire story is got up by the respondent no.2. That, from the facts, it is found that the entire dispute is purely of a Civil nature and admittedly, the land in dispute was of the ownership of Badhabhai Sidabhai Makwana and after his death, it was transferred in the revenue record in the names of his legal heirs; namely, Labhuben Badhabhai Makwana, Sumitraben Badhabhai Makwana, Prafullaben Badhabhai Makwana, Devrajbhai Badhabhai Makwana, Bavliben Badhabhai Makwana as well as Jayaben Badhabhai Makwana. That, before purchasing the said land, a public notice was issued on 4th August, 2006 and no objection was raised by the complainant. That petitioners have made a "Banakhat" with possession of the said land on 28th June, 2006, wherein the complainant is a party, having signed as a witness. That, a power of attorney was also executed by the legal heirs of the original owner in favour of Hasmukhbhai Meghjibhai Shiyal on 3rd August, 2006 and in the same document also, the complainant has signed as a witness. That, this document was duly executed before the Notary and legal heirs of Badhabhai had also signed therein. That, the receipt was also issued in lieu of accepting full consideration of the land by the legal heirs of the deceased Page 4 of 20 HC-NIC Page 4 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT Badhabhai Sidabhai on 3rd August, 2006. On 30.11.2007, the sale deed was executed in favour of the petitioners by power of attorney Hasmukhbhai Meghjibhai Shiyal on behalf of the legal heirs of the original owner and it was duly registered before the office of the Sub Registrar on 1st December, 2007. That, an entry in favour of the petitioners in revenue record, being entry No. 2667, was made on 29.02.2008 and it was objected by one Shaikhbhai Ibrahimbhai Dawoodbhai. That, after hearing both the sides, learned Deputy Collector, Gondal was pleased to reject the appeal filed under Section 108(5) of the Land Revenue Rules. That, respondent no.2 has tried to convert a civil dispute in criminal prosecution by initiating a false complaint after elapse of more than 5 years, making attempt to pressurize the petitioners having failed in all the proceedings. That, after execution of all the documents, the complainant himself has signed as a witness in the year 2011. He has filed the complaint, making a grievance of the year 2006, is nothing but a gross abuse and misuse of process of law, and therefore, it was requested by learned advocate Mr. Ashish Dagli, learned advocate for the petitioners to quash and set aside the complaint, being CR No. I-107 of 2011 before Jetpur Police Station by the respondent no.2 in the interest of justice.
5. In support of his arguments, learned advocate Mr. Ashish Dagli appearing on behalf of the petitioners has placed reliance on two decisions of this Court, rendered in case of Arvindbhai Maganlal Master Vs. State of Gujarat & Anr. [Criminal Misc. Application No. Page 5 of 20 HC-NIC Page 5 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT 11031 of 2014] and in case of Khandubhai Poonabhai Tandel Vs. State of Gujarat & Anr., reported in 2015 (2) GLR 1146.
6. From the other side, learned advocate Mr. Nandish Thakkar for Thakkar and Pahwa Advocates appearing for the Respondent No. 2 has strongly and vehementally opposed the submissions made on behalf of the petitioners and argued that the respondent no.2 is the owner and occupant of the land situated in village Pedhla, Ta: Jetpur, District: Rajkot. That his father Mansukhbhai Popatbhai Hadvani had purchased the land from one Badhabhai Sidabhai Makwana in the year 1984 and had paid amount of Rs. 2,05,375/- to the original owner and an agreement/Satakhat in writing was executed in favour of his father on 05.04.1984 by putting his thumb impression. That, son of the original owner namely Devrajbhai Badhabhai Makwana had put his signature on the revenue stamp paper and amount was paid in cash and written receipt was issued by all the legal heirs of Badhabhai Sidabhai Makwana on 28th May, 1985. That, original owner Badhabhai Sidabhai had also executed irrevocable power of attorney in favour of father of the complainant on 28th May, 1985 and all the powers of the land in question were given to his father. That, he had paid the revenue taxes and was looking after all the activities of the land. That, father of the respondent no.2 expired on 8th March, 2005 and the respondent no.2, being an elder son and as his family was in need of money, he had decided to sell this land by giving all the papers of land to one Govindbhai Savsani, friend of his father. That, Arjanbhai Dangar-accused no.1 was willing to purchase the land in Page 6 of 20 HC-NIC Page 6 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT question and a deal was finalized for Rs. 20 lacs, as agreed by the said accused. That, on instructions issued by one Govindbhai Savsani, the respondent no.2 was asked to meet him in the office of Govindbhai Savsani in presence of Ghanshyambhai Ahir, Satishbhai Hubal, Hasmukh Meghji Shiyal, Bhupatbhai Kandolia and other persons. That, all the persons went to the office of advocate Sanatbhai Mehta, where legal heirs of original land owner Badhabhai Sidabhai Makwana were present as well as Talati cum Mantri was also present. That, all the papers of the land were prepared by advocate Sanatbhai Mehta and signatures of all the legal heirs were obtained on the papers prepared by the said advocate Shri Sanatbhai Mehta. It was assured by Arjanbhai Dangar-accused that Rs. 20 lacs would be paid to the respondent no.2 at Rajkot, and hence, he had put his signature on the document upon a promise and assurance given by the original accused no.1-Arjanbhai Dangar. That, on demand of Rs. 20 lacs made by the complainant towards the sale consideration of his land, the accused no.1 Arjanbhai Dagnar refused to pay the said amount, though he has assured to give it and on the contrary threatened him to face dire consequences. That, complainant was frequently promised by the accused no.1-Arjanbhai dangar that he was in financial crisis and he would be paying the amount as soon as his land is sold. That, the accused no.1 and other co-accused persons have cheated the complainant to the extent of Rs. 20 lacs. That, accused-Hasmukh Meghjibhai Shiyal had executed a registered sale deed in favour of Daxaben Arjanbhai Dangar-wife of the accused no.1 Page 7 of 20 HC-NIC Page 7 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT and Miraben Satishbhai Humbal-wife of the accused Satishbhai Humbal, which is paper transaction and this transaction is made to defeat demand of Rs. 20 lacs from the original accused no.1- Arjanbhai Dangar. That, the intention of the accused persons is clear that complainant is deprived of his statutory dues. That, investigation is yet at crucial stage and police is in the process of recording statements of witnesses and collection of documents. That, no amount was paid to the complainant by the accused persons, however, he was promised to pay. That, issue of delay in lodging complaint by the respondent no.2 is clearly explained in the complaint itself. Merely because, the complaint is delayed, as argued by the learned advocate for the petitioners, can never be a ground for quashing the FIR; as requested by the petitioners. That, investigation should be permitted to be completed by investigating agency till the charge-sheet is filed in the case. Ultimately, it was requested by learned advocate Mr. Nandish Thakkar for the respondent no.2 to dismiss the present petition.
7. Mr. KP Raval, learned APP for the respondent no.1-State has supported the arguments advanced by the learned advocate Mr. Nandish Thakkar for the respondent no.2 and submitted that from the filing of this petition, this court has been pleased to grant interim relief in favour of the petitioners by staying investigation into the offence, and therefore, it was not possible for the investigating agency to prosecute further in the matter. That, at the initial stage, only 2 statements of witnesses were recorded by the investigating Page 8 of 20 HC-NIC Page 8 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT agency, and thereafter, on receiving the order passed by this Court, investigating agency restrained itself to investigate into the offence. That, looking at the charges levelled against the present petitioners, investigation should be permitted, so that truth may be found by the investigating agency. From the averments made in the complaint, it cannot be said that it is purely a civil dispute or complainant is a consented party, who has put his signature as a witness in the document. At this stage, it can be said that prima facie, the offence punishable under Sections 406, 420, 506(2), 120B and 114 of the Indian Penal Code is made out against the present petitioners. Hence, it was requested by him to dismiss the present petition.
8. Having heard arguments advanced by the leaned advocate for the respective parties and considering the documents produced on the record, it appears that from the original owner of the land, namely, Badhabhai Sidabhai Makwana, in the year 1984, the father of the complainant Mansukhbhai had purchased the land of survey No. 189/2 (21697 sqr. Meter of land) on two stamp papers of Rs. 5.00 and on 05.04.1984 and an agreement to sell was executed. It also appears from the record that on 28.05.1985, on a stamp paper of Rs. 10.00 and a receipt of payment of amount, as agreed between parties, was issued by the original owner. Thereafter, it appears that on stamp paper of Rs. 50.00, the power of attorney was executed by the original owner namely Badhabhai Sidabhai Makwana in favour of the father of the complainant on 29.05.1985. Further, it appears that one sale deed was executed by the original owner of the land in Page 9 of 20 HC-NIC Page 9 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT dispute in favour of father of the complainant signed by the legal heirs of the original owner as he passed away on 8th March, 2005 as stated and averred in the petition. It transpires from the record and documents that a banakhat with possession was executed on 3rd August, 2006 by the legal heirs namely Labhuben Badhabhai Makwana, Sumitraben Badhabhai Makwana, Prafullaben Badhabhai Makwana, Devrajbhai Badhabhai Makwana, Bavliben Badhabhai Makwana as well as Jayaben Badhabhai Makwana in favour of Shri Hasmukhbhai Meghjibhai Shiyal at Rajkot. It was duly registered before the office of the Sub Registrar, Jetpur under their signatures. In column of witnesses, the present respondent no.2 has put his signature as a witness alongwith the signature of petitioner no.5- Bhupat Popatbhai Kandoliya. This Banakhat was executed in favour of Hasmukhbhai Meghjibhai Shiyal, who happens to be petitioner no.2 and accused no.2 in the complaint. Thereafter, it appears from the document produced on record that aforesaid seller and others, as stated above, executed a Special Power of Attorney (Irrevocable power of attorney) in respect of the disputed land in favour of the said accused no.2-Hasmukhbhai Meghjibhai Shiyal, which was duly notarized on 3rd August, 2006. It also appears from the documents available on the record that on the basis of said power of attorney, accused no.2, as shown in the complaint, namely Hasmukhbhai Meghjibhai Ahir (Shiyal) executed a sale deed of the said land converting it into non agricultural revenue survey No. 189 paiki 2, admeasuring 21963 sqr. meters in a capacity of power of attorney of Page 10 of 20 HC-NIC Page 10 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT the legal heirs of deceased Badhabhai Sidabhai Makwana, namely, Labhuben and others, as stated above. On 1st December, 2007, the said sale deed was registered with the office of Sub Registrar, Jetpur. Thereafter, an appeal was preferred before the learned Dy. Collector at Gondal under Rule 108(5) of the Land Revenue Rules, being Appeal No. 44/2008-09, in connection with the disputed entry No. 2667 of the land in question. Learned Deputy Collector, Gondal, by his order dated 09.03.2009, was pleased to reject the appeal preferred by one Shri Shaikhbhai Ibrahimbhai Dawoodbhai and confirmed the order passed by the learned Mamlatdar, Jetpur in connection with E-Dhara Entry No. 2667 dated 20th May, 2008 made in the Village Form.
9. It also appears that one notice/correspondence was also placed on record by both the parties. There is nothing on record that any transaction of purchasing the land in dispute was carried out by the accused no.1-Arjanbhai Dangar or other co-accused for the amount of Rs. 20 lacs, as alleged in the complaint by the respondent no.2, nor he was promised by the accused no.1 to pay the said amount. On the contrary, it transpires that the sale deed for the land was made in favour of Smt. Daxaben Arjanbhai Dangar and Smt. Miraben Satishbhai Humbal by the legal heirs of the deceased Badhabhai Makwana-original owner of the land through their power of attorney Hasmukhbhai Meghjibhai Shiyal-accused no.2 in the complaint. There is no satisfactory explanation given by the respondent no.2 in lodging the complaint after passing of 5 years and more time, as the agreement to sale was executed by the legal heirs of the deceased Page 11 of 20 HC-NIC Page 11 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT Badhabhai Makwana on 3rd August, 2006 and the complaint was lodged on 6th November, 2011. Certainly, a man of ordinary prudence would not wait till 5 years and more time to recover his money without filing a civil suit, even after any promise or assurance is given to him. The title of the respondent no.2-complainant in respect of the land in question did not appear to be cleared, as he is claiming to be the owner of the said land. Similar issue was decided by this Court (Coram: Hon'ble Mr. Justice JB Pardiwala) in Criminal Misc. Application No. 11031/2014, wherein a complaint was registered against the petitioners for the offence punishable under sections 406, 420, 120B read with Section 34 of the Indian Penal Code. It is observed therein as under;
"The offences of criminal breach of trust (Section 406 IPC) and cheating (Section 420 IPC) have specific ingredients. In order to constitute a criminal breach of trust (Section 406 IPC).
1) There must be entrustment with person for property or dominion over the property, and
2) The person entrusted :
a) dishonestly misappropriated or converted property to his own use, or
b) dishonestly used or disposed of the property or willfully suffers any other person so to do in violation -
i) any direction of law prescribing the method in which the trust is discharged and
ii) of legal contract touching the discharge of trust (see: S.W.P. Palanitkar v. State of Bihar, (2002)1 SCC 241) : (AIR 2001 SC 2960).
Similarly, in respect of an offence under section 420 IPC, the essential ingredients are :
1) deception of any person, either by making a false or misleading representation or by other action or by omission;Page 12 of 20
HC-NIC Page 12 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT
2) fraudulently or dishonestly inducing any person to deliver any property, or
3) the consent that any persons shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit (see: Harmanpeet Singh Ahluwalia v. State of Punjab, (2009)7 SCC 712 :
(2009) Cr.L.J. 3462 (SC) ) Further, in both sections, mens rea i.e. intention to defraud or the dishonest intention must be present from the very beginning or inception without which either of these sections cannot be invoked.
In my view, the plain reading of the First Information Report fails to spell out any of the aforesaid ingredients noted above. I may only say with a view to clear a serious misconception of law in the mind of the police as well as the courts below that if it is a case of the complainant that offence of criminal breach of trust as defined under Section 405 of IPC, punishable under Section 406 of IPC, is committed by the accused, then in the same breath it could not be said that the accused has also committed the offence of cheating as defined and explained in Section 415 of the IPC, punishable under Section 420 of the IPC.
Every act of breach of trust may not be resulted in a penal offence of criminal breach of trust unless there is evidence of manipulating act of fraudulent misappropriation. An act of breach of trust involves a civil wrong in respect of which the person may seek his remedy for damages in civil courts but any breach of trust with a mens rea gives rise to a criminal prosecution as well. It has been held in Hart Prasad Chamaria v. B.K. Surekha and others, reported in 1973(2) SCC 823 as under :
"We have heard Mr. Maheshwarit on behalf of the appellant and are of the opinion that no case has been made out against the respondents under Section 420 Indian Penal Code. For the purpose of the present appeal, we would assume that the various allegations of fact which have been made in the complaint by the appellant are correct. Even after making that allowance, we find that the complaint does riot disclose the commission of any offence on the part of the respondents under Section 420 Indian Penal Code. There is nothing in the complaint to show that the respondents had dishonest or fraudulent intention at the time the appellant parted with Rs.Page 13 of 20
HC-NIC Page 13 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT 35.000/- There is also nothing to indicate that the respondents induced the appellant to pay them Rs. 35.000/- by deceiving him. It is further not the case of the appellant that a representation was made, the respondents knew the same to be false. The fact that the respondents subsequently did not abide by their commitment that they would show the appellant to be the proprietor of Drang Transport Corporation and would also render accounts to him in the month of December might create civil liability on the respondents for the offence of cheating."
To put it in other words, the case of cheating the dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, the person who comes into possession of the movable property receives it legally, but illegally retains it or converts it to his own use against the terms of the contract. Then the question is, in a case like this, whether the retention is with dishonest intention or not. Whether the retention involves criminal breach of trust or only a civil liability would depend upon the facts of each case.
The distinction between mere breach of contract and the offence of criminal breach of trust and cheating are fine one. In case of cheating, it depends upon the intention of the accused at the time of inducement, which may be judged by a subsequent conduct but for this the subsequent conduct is not the sole test but mere breach of contract which cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction i.e. the time when the offence is said to have been committed. Therefore, it is his intention, which is the gist of the offence. Whereas, for the criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. The property in respect of which the offence after breach of trust has been committed must be either the property of some person other than the accused or the beneficial interest in or ownership of it must be of some other person. The accused must hold that property on trust of such other person. But the offence, i.e. the offence of breach of trust and cheating involve dishonest intention but they are mutually exclusive and different in basic concept. There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of entrustment. Page 14 of 20 HC-NIC Page 14 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property and he dishonestly misappropriated the same. Whereas, in case of cheating, the offender practices fraudulent or dishonest to induce with another person to deliver the property. In such situation, both the offences cannot co- exist simultaneously.
I may quote with profit a decision of the Supreme Court in the case of Nageshwar Prasad Singh alias Sinha v. Narayan Singh, AIR 1999 SC 1480. In the said case, the allegation of the prosecution was that an agreement was signed between the complainant respondent and the appellant whereby some land was agreed to be sold by the appellant to the complainants on a consideration, and allegedly a part thereof was paid as earnest money, the balance being payable in the manner indicated in the deed. The most important term in the deed was that possession of the plot would stand transferred to the complainants and possession in fact was delivered to the complainants over which they made certain constructions. The complaint was laid on the basis that the appellant had cheated the complainants of the sum of money they had paid as earnest money as his subsequent conduct reflected that he was not willing to complete the bargain for which the complainants had to file a suit for specific performance which was pending in the civil court. Held, that latter part of illustration (g) to Section 415, I.P.C. illustrates that at the time when agreement for sell was executed, it could have, in no event, been termed dishonestly so as to hold that the complainants were cheated of the earnest money, which they passed to the appellant as part consideration and possession of the total amount involved in the bargain was passed over to the complainant/respondent and which remained in their possession. Now it is left to imagine who would be interested for dealing the matter for completing the bargain when admittedly the complainants have not performed their part in making full payment. The matter was, therefore, before the civil court in this respect. The liability, if any, arising out by breaching thereof was civil in nature and not criminal. Accordingly, the appeal was allowed and complaint proceedings were Page 15 of 20 HC-NIC Page 15 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT quashed."
10. The delay in lodging the FIR also assumes significance in the facts of the present case. At the cost of repetition, I am stating that, the irrevocable power of attorney of the land was made on 3rd August, 2006, in which, respondent no.2 has put his signature as a witness on 28th June, 2006 and even in a banakhat, which was executed, the complainant has put his signature as a witness, whereas, FIR came to be lodged in the year 2011. In the cited judgment, Hon'ble High Court has further observed as under:
"Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [vide: Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710].
In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases, the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before a civil court may initiate criminal proceedings just to harass the other side with a malafide intention or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to Page 16 of 20 HC-NIC Page 16 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Kishan Singh (D) through L.Rs. v. Gurpal Singh and others, 2010 Cri.L.J. 4710]."
11. In yet another decision in case of Khandubhai Poonabhai Tandel Vs. State of Gujarat & Anr. reported in 2015(2) GLR -Page No. 1146, the same issue was considered by this Court (Hon'ble Mr. Justice Vipul M. Pancholi), wherein the complainant has suppressed the material fact of sale deed executed in favour of Naynaben on 27.05.2005 and on that account, it was held that the impugned FIR is nothing, but an abuse of process of the Court. Here also, the complainant- respondent no.2 has suppressed the material facts in his complaint, execution of the banakhat in favour of Hasmukh Meghjibhai Shiyal dated 28.06.2006 and registered sale deed in favour of Daxaben and Miraben on 1st December, 2007 as well as the revenue proceedings and objection made by Shri Shaikhbhai Ibrahimbhai Dawoodbhai before the learned Deputy Collector at Gondal in land appeal No. 44/08-09 and order passed thereunder on 9th March, 2009. Under these circumstances, story of the respondent no.2 that a deal of purchasing the land in dispute was finalized with Arjanbhai Dangar- accused no.1 in Rs. 20 lacs in presence of other co-accused, in the office of Govindbhai Savsani and Sanatbhai Mehta, advocate prepared the papers of the land and the legal heirs of the deceased Page 17 of 20 HC-NIC Page 17 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT Badhabhai Makwana and Talati-cum-Mantri were present there and the signatures of the legal heirs were obtained on the papers and he had also put his signature as well as promise was given by Arjanbhai to pay an amount of Rs. 20 lacs at Rajkot can not be believed. The fact of giving threats to him by Arjanbhai Dangar of facing dire consequences on demand of Rs. 20 lacs from him cannot be also believed. The participation in the alleged offence by other accused persons, except their presence on 3rd August, 2006 would not be sufficient to involve them in a criminal offence, as alleged by the respondent no.2 in the complaint. No other allegations are made by the respondent no.2-complainant against the other accused, except the accused no.1-Arjanbhai Dangar. It is argued by Mr. Thakkar that the petitioner no.5 is involved in numbers of other offences of land grabbing and because of showing his name as an accused in other offences, it could not be sufficient to involve him in the present offence. On the contrary, the accused no.5 has also put his signature in the document in company of the respondent no.2 himself. No objection was raised by the respondent no.2 on issuing of a public notice in a daily news papers showing the intention of the purchaser to purchase the land from the legal heirs of the deceased-original owner.
12. It transpires from the record that the petitioners have averred in para 5 of the petition that they have made Banakhat with possession on 28.06.2006, and in para 8 of the petition, it is stated that after execution of this document on 30.11.2007, a sale deed was Page 18 of 20 HC-NIC Page 18 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT executed in favour of the petitioners by power of attorney Hasmukhbhai Meghjibhai Shiyal and the sale deed was registered before the office of Sub Registrar on 1st December, 2007. It appears that the aforesaid sale deed, as alleged in the petition as well as in the arguments, was executed in favour of Daxaben Arjanbhai Dangar and Miraben Satishbhai Humbal by the legal heirs of deceased Badhabhai Makwana through their power of attorney Hasmukhbhai Meghjibhai Shiyal and it was registered before the office of the Sub Registrar, Jetpur on 1st December, 2007. Whereas, Banakhat was executed regarding the land in dispute with the possession by the legal heirs of the deceased Badhabhai Makwana in favour of Hasmukhbhai Meghjibhai Shiyal. The averments made by the petitioners that the aforesaid two documents were made and executed in their favour appears to be not correct. No documents, either Banakhat or sale deed, was executed in favour of the petitioners by complainant. It also transpires from the record that no agreement to sale for consideration of Rs. 20 lacs of the land in dispute was finalized with petitioner no.1 by the complainant, as alleged in the complaint. No documents are produced by the complainant in this respect on the record.
13. From the aforesaid facts and circumstances of the case, this Court is of the view that respondent no.2 has tried to drag all the petitioners in a criminal offence by converting a civil dispute into a criminal, when no banakhat or sale deed was executed in favour of the present petitioners. Hence, for the foregoing reasons, this Page 19 of 20 HC-NIC Page 19 of 20 Created On Sun Aug 13 15:55:15 IST 2017 R/CR.MA/14713/2011 CAV JUDGMENT Application deserves to be allowed and is hereby allowed. The FIR, being C.R. No. I-107/2011 registered with Jetpur City Police Station for the offence punishable under Sections 406, 420, 506(2), 120B and 114 of the Indian Penal Code is hereby quashed qua the petitioners herein.
14. It is clarified that the observations made by this Court in this Judgment and order are relevant only for the purpose of deciding the present petition and shall have no bearing so far as the civil proceeding, which is pending before the Civil Court or revenue authorities. Without being influenced in any manner by any of the observations made by this Court, the other authorities would decide the dispute, if any, independently on its own merits and in accordance with law.
15. Rule is made absolute. No order as to costs.
(B.N. KARIA, J.) ksdarji Page 20 of 20 HC-NIC Page 20 of 20 Created On Sun Aug 13 15:55:15 IST 2017