Pravinsinh Kishoresinh Waghela & vs State Of Gujarat & on 10 January, 2017

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Gujarat High Court

Pravinsinh Kishoresinh Waghela & vs State Of Gujarat & on 10 January, 2017

HC-NIC Page 1 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT By means of filing this Application under Section 482 of the Code of Criminal Procedure Code, 1973 ["CrPC" for brevity], the applicants-original accused seek to invoke inherent powers of this Court, praying for quashing and setting aside further proceedings of the complaint dated 19th July 2009 filed by the respondent no. 2 herein, being C.R. No. I-57 of 2009 registered with Bavala Police Station for the offence punishable under Sections 365, 428, 506 (2), 341, 465, 468, 420, 120-B and 114 of the Indian Penal Code ["IPC" for brevity].

At the outset, it is required to be noted that pursuance to the prayer made by the applicants for staying investigation of C.R No. I-57 of 2009, pending admission, hearing and final disposal of the Application, this Court vide Oral Order dated 15th March 2010, while issuing notice of rule, granted interim relief, staying further investigation of the complaint dated 19th July 2009, till final disposal of the petition, after considering the facts and circumstances of the case and the nature Page 2 of 20 HC-NIC Page 2 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT of dispute pending before the Civil Court concerned, and more particularly, the fact that a Public Notice was issued earlier in point of time through an advocate of the complainant. It is informed that by virtue of stay, investigation has not progressed in respect of the aforementioned complaint.

Heard learned advocate Shri Harshit M Karathia appearing on behalf of the applicants, Shri K.P Raval, learned APP for the respondent no.1-State and Shri Chetan K Pandya, learned advocate appearing on behalf of the respondent no.2-Complainant. It is submitted by Shri Harshit M Karathia, learned advocate appearing on behalf of the applicants that a false complaint has been registered against the present applicants, being C.R. No. I-57 of 2009 with Bavala Police Station for the offence punishable under Sections 365, 428, 506 (2), 341, 465, 468, 420, 120-B and 114 IPC by the respondent no. 2-complainant. That, the respondent no. 2 has adopted tactics which amounts to abuse of process of law because the dispute involved is Page 3 of 20 HC-NIC Page 3 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT civil in nature and for the purpose, Special Civil Suit has already been filed against the present applicants. That, the entire complaint is based on the fact that signatures of the respondent no. 2-complainant were taken when he was in unconscious state of mind, however, this fact is completely falsified by the fact that the registered sale deeds were executed by the complainant under his own signatures, wherein his photographs were taken on the documents. If the complainant was in unconscious state of mind, the office of the Sub Registrar would have never registered the Sale Deeds nor he would have been able to present himself for the photograph, which gets snapped through the computer system operating in the office of Sub Registrar concerned. It is further urged that in the aforesaid eight properties, wherein, though name of the complainant was on revenue record since 1983, a public notice was issued on 11th July 2009 in the daily newspaper "Divya Bhaskar" by the relatives of the complainant stating that no one should enter into any Page 4 of 20 HC-NIC Page 4 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT kind of transaction in respect of these eight parcels of land in question, since the properties were jointly owned, and the partition which had taken place previously, was challenged by them. Thereafter, immediately on 12th July 2009, again a Public Notice was issued in a daily newspaper "Divya Bhaskar"

stating that the Notice dated 11th July 2009 was not given by them and it was issued by mistake and through inadvertence, and hence, the same was to be treated as withdrawn. It is further submitted that after the alleged incident of kidnapping/abducting the complainant and by making him drink two glasses of liquor containing intoxicating substance and when he was unconscious, he was dropped at Dholka-Medha Road and after two to three hours, when the complainant re-gained his sense, he went to his in-laws' house where it took two days to regain complete consciousness and further on inquiring the Mamlatdar, he was found having nothing, but on 16th July 2009, it came to his knowledge that sale deeds were made in Page 5 of 20 HC-NIC Page 5 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT favour of one lady and that too without any consideration with an intention to cheat him. The complaint in this respect was lodged by him on 19th July 2009 ie., eleven days late from the execution of the registered Sale Deeds [which took place on 8th July 2009]. That, the allegations made in the complaint are vague, improper and does not repose any confidence. That, witnesses to the said registered Sale Deeds are named as accused in the aforesaid complaint and the respondent no. 2 has tried to involve as many number of accused as possible in the said complaint so that the applicants get succumbed to his illegal demands, inspite of the fact that complainant has been paid entire sale consideration. That, the complainant had executed one irrevocable power of attorney in favour of the applicant no. 1 on 14th July 2009 and the applicant no. 3 purchased the said land by paying total consideration of the said pieces of land which were registered through eight sale-deeds, bearing registration no. 1877 to 1884 on 8th July 2009 from the Page 6 of 20 HC-NIC Page 6 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT original land owner ie., complainant-Mahavirsinh Dilubha Waghela, wherein, the applicant no. 1- Pravindsinh Kishoresinh Waghela [power of attorney holder of the complaint] has signed as the confirming party. That, on coming to know that a complaint has been filed by the respondent no. 2 against the applicants, they approached the learned Sessions Judge, Ahmedabad [Rural] by way of filing Criminal Misc. Application No. 939 of 2009 on 11th September 2009 under Section 438 CrPC, which came to be allowed by an Order dated 18th September 2009. That, however, the entire transaction is purely of civil nature and the complainant has given it criminal colour for extraneous reasons to extort more money by adopting illegal tactics. It is requested under the circumstances by the learned advocate for the applicants to quash and set-aside the aforesaid complaint, in the interest of justice.

Per contra, learned APP Shri KP Raval appearing on behalf of the respondent no.1-State has vehemently Page 7 of 20 HC-NIC Page 7 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT opposed the submissions made for and on behalf of the applicants urging that without completion of investigation of the complaint registered against the applicants, at present, no conclusion can be drawn by this Court holding the applicants innocent, or having committed no offence. That, the prosecution should be permitted to go deep into the matter, investigate the same and file the chargesheet, since from the records, sufficient material is available against the applicants to involve them in the offence alleged. Learned APP further urged that the applicants have alternative remedy available under the law which could be availed by them by filing discharge application before the trial Court concerned, after investigation is over and chargesheet is filed. He added that if they are innocent or investigation having found no substance in the complaint, they would avail the benefit of discharge from the offence by the competent Court of law. However, as per the arguments of learned APP, as there is no substance in the arguments advanced on behalf of Page 8 of 20 HC-NIC Page 8 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT the applicants by their learned advocate, no relief can be allowed by this Court. Ultimately, learned APP urged this Court to dismiss the Application in limine.

Learned advocate Shri Chetan K Pandya appearing on behalf of the respondent no.2-complainant also strongly opposed the submissions made for and on behalf of the applicants and urged that the allegations levelled against the applicants are true and correct. That, the first sale deed allegedly executed by the respondent no. 2-complainant for a sale consideration of Rs. 96,200/= only was received by cash itself appears to be doubtful. He added that in another sale deed, the sale price of another piece of land is shown as Rs. 70,000/= which was received in cash on installment basis. All the eight sale deeds were executed on a very same day ie., 8th July 2009 which is also a doubtful. Moreover, consideration of huge amount was paid in cash and installment basis and no receipts thereof of the amount received by the respondent no. 2 are produced on the record by the Page 9 of 20 HC-NIC Page 9 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT applicants. That, the applicants can never be treated as bona fide purchaser of the land in dispute. That, a Civil Suit was also filed against the present applicants. That, the applicant no. 3 is the sole beneficiary of the transactions. That, there was no settlement carried out by the respondent no. 2-complainant with any of the accused. That, discretionary power vested with the Court under Section 482 CrPC cannot be exercised when prima facie applicants are found involved in the offence alleged. That, the applicant no. 1, in whose favour the alleged irrevocable power of attorney was executed is the father of applicant no. 2. If it was a genuine document, why the applicant no. 1 has put his signature as the confirming party in the sale deeds in an individual capacity. That, investigation must be permitted to be carried out by the Investigating Agency. However, at this juncture, as per the averments of Mr. Pandya, learned advocate appearing for the complainant, all the applicants are involved in the offence and no discretionary power should be Page 10 of 20 HC-NIC Page 10 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT exercised in their favour, however, they are at liberty to approach the Court concerned by filing discharge application at an appropriate stage. Ultimately, it was requested by learned advocate Shri Pandya appearing for the respondent no. 2 to dismiss the present Application.

Having considered the facts and circumstances of the case, submissions made by the learned advocates appearing for the respective sides, it appears that as per the allegations made in the complaint filed by the respondent no. 2, his signature and thumb impression were taken by abducting/kidnapping him and by making him drink two glasses of liquor added with intoxicating substance and when he was dropped at Dholka-Medha Road, after two to three hours, when he regained his sense, he went to his in-laws' house where it took him two days to regain complete consciousness. He further made inquiries with the office of Mamlatdar and nothing was found. But, on 16th July 2009, he came to know that Sale Deeds were executed in favour of one Page 11 of 20 HC-NIC Page 11 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT lady without any consideration, with an intention to cheat him.

It is pertinent to note here that the Sale Deeds in favour of the applicant no. 3 were executed on 8th July 2009 at Dholka, which were duly registered with the Office of the Sub Registrar, Dholka in his presence as well as witnesses. It transpires from the documents/sale deeds that the respondent no. 2 has put his own signatures, photographs as well as given thumb impression on the very same day. The sale deeds speak volume about his presence in the office of Sub Registrar at Dholka where these documents were duly registered, seal of the office of the Sub Registrar, Dholka were applied, the concerned Sub Registrar has also put his signature below the documents verifying compliance of the necessary procedure and confirming the same. Both the witnesses have also put their signature on all the documents and thereafter, the documents were registered in the office of Sub Registrar at Dholka on 8th July 2009. It also transpires that the sale consideration Page 12 of 20 HC-NIC Page 12 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT was paid by installments in cash to the respondent no.

2. However, complaint was filed by the respondent no. 2 on 19th July 2009 ie., 11 days after the date of execution of registered sale deeds. Now, as per the provisions of the Registration Act, a Sale Deed can be executed only when the buyer and seller, alongwith a confirming party are present before the Sub Registrar, where all of them; including the witnesses have to put their thumb impression/ signature as well as his photographs was also taken on the spot through computer process. Therefore, the allegation made in the complaint that the signatures of the respondent no. 2 were taken on these documents, when he was in unconscious state of mind falsifies the very contention. It transpires from the record that the registered sale deeds carry signature of the complainant, his photograph, signature of witnesses duly endorsed by the Sub Registrar. As per the documents produced on the record, the Home Department of the State of Gujarat has also issued certain directions by way of a Page 13 of 20 HC-NIC Page 13 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT Circular dated 23rd July 2003 inter alia stating that the Police department should not become party direct or indirectly to the personal disputes relating to the property. Further, a public notice was issued in daily newspaper viz., "Divya Bhaskar" Ahmedabad edition on 11th July 2009 by the relatives of the respondent no. 2- complainant stating that no one should enter into any kind of transaction for the eight pieces of land in question, as the property was jointly owned and that the partition which had taken place previously is being challenged by them and have also asked for re-partition of the same by filing appropriate court proceedings. Thereafter, surprisingly, another public notice was issued in the same newspaper on the very next day ie., 12th July 2009 stating that the public notice dated 11th July 2009 was not given by them and it was issued by mistake and through inadvertence, and hence, it was stated to have been withdrawn.

Further more, from the Village Form 7/12 produced on the record, it appears that since 1983, the Page 14 of 20 HC-NIC Page 14 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT respondent no. 2 is shown as the occupant/owner of the above said eight parcels of land. A Civil Suit No. 158 of 2009 filed by Prem Kuvarba, widow of Diluba Babubhai and others against the present applicants no. 1 & 3 is pending, wherein, the respondent no.2-complainant is also shown as defendant no. 3 by the plaintiffs. After registering the complaint against the applicants, they have approached the learned Sessions Judge, Ahmedabad [Rural] by filing a Criminal Misc. Application No. 939 of 2009 under Section 438 CrPC in which the learned Addl. Sessions Judge was pleased to allow the application by granting anticipatory bail by an Order dated 18th September 2009. Applicant no. 1 is the power of attorney holder of the complainant, in whose favour on 14th July 2008, irrevocable power of attorney was executed by the respondent no. 2 in respect of the land, bearing Revenue Survey No. 366, 441, 442, 445, 486/1, 486/2, 487/1 and 487/2 admeasuring 1,14,527 sq.m in all. Applicant no. 3 has purchased the land in dispute by paying sale consideration and by executing Page 15 of 20 HC-NIC Page 15 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT eight different sale deeds, bearing registration no. 1877 to 1884, on 8th July 2009 from the land owner viz., respondent no. 2-complainant, wherein, the applicant no. 1 has signed as the confirming party. As a Civil Suit is also pending against the present applicants no. 1 & 3 in respect of the said land in which the complainant is also one of the defendant. Prima facie, it appears the complainant has tried to convert the civil disputes into criminal by filing a false complaint against the present applicants, though he has signed in all the eight Sale Deeds executed in favour of the applicant no. 3, having received entire sale consideration towards the land in dispute. Therefore, it can be said that the complainant has abused the process of law by filing false complaint against the present applicants.

Here, this Court would like to refer to a decision of the Apex Court rendered in case of State of Haryana & Ors. V. Bhajan Lal & Ors., reported in 1992 Supp (1) SCC 335, wherein the Court has broadly set out the circumstances in which this Court can exercise the Page 16 of 20 HC-NIC Page 16 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT power under section 482 of Criminal Procedure Code.

Paragraphs 102 and 103 thereof read as under :

"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the Page 17 of 20 HC-NIC Page 17 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent persons can ever reach a just conclusion that there is sufficient grounds for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for Page 18 of 20 HC-NIC Page 18 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

It seems that criminal complaint filed by the respondent no. 2 seems to be misuse of the process of law. It also transpire from the order passed by this Court [Coram : Mr. Justice JB Pardiwala] in Criminal Misc. Application [For Quashing & Setting Aside FIR/ Order] No. 19821 of 2014 dated 2nd December 2014 that a compromise was arrived at by the complainant with the accused no. 1 & 2 viz., Kantibhai Mulshankar Pandit and another, accused of the said complaint. Hence, upon filing of an affidavit by the respondent no. 2-complainant Mahavirsingh Dilubha Vaghela, this Court was pleased to quash and set-aside further proceedings of Criminal Case No. 2423 of 2013 pending in the Court of learned JMFC, Bavla, arising from C.R No. I-57 of 2009, lodged with Bavla Police Station, Ahmedabad [Rural].

Under the circumstances, for the reasons stated hereinabove, this is a fit case to exercise discretion Page 19 of 20 HC-NIC Page 19 of 20 Created On Wed Jan 11 02:29:27 IST 2017 R/CR.MA/11254/2009 CAV JUDGMENT vested in this Court under Section 482 CrPC to quash and set-aside the impugned complaint. Resultantly, Criminal Misc. Application is allowed. Complaint, being C.R. No. I-57 of 2009 registered with Bavala Police Station for the offence punishable under Sections 365, 428, 506 (2), 341, 465, 468, 420, 120-B and 114 of the Indian Penal Code is hereby quashed and set-aside. Rule nisi made absolute to the aforestated extent. No costs.

Needless to mention here that none of the observations made hereinabove shall influence the concerned Civil Court, while deciding pending Civil Suit No. 158 of 2009 filed by one Prem Kuvarba, w/d. of Diluba Babubhai and others against the present applicants no. 1 to 3, wherein, the respondent no. 2- complainant is also shown as defendant no. 3.

{B.N Karia, J.} Prakash Page 20 of 20 HC-NIC Page 20 of 20 Created On Wed Jan 11 02:29:27 IST 2017

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Gujarat High Court