Gujarat High Court
Kishorebhai Rambhai Dhadhal vs State Of Gujarat on 26 October, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/7607/2016 ORDER DATED: 26/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7607 of 2016
With
R/CRIMINAL MISC.APPLICATION NO. 8072 of 2016
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KISHOREBHAI RAMBHAI DHADHAL & 2 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. SANJANWALA, SR. ADVOCATE WITH MR CHETAN K PANDYA(1973)
for the Applicant(s) No. 1,2,3
MR. PRANAV TRIVEDI, APP PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
RULE SERVED BY DS(65) for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 26/10/2021
ORAL ORDER
1. In both the petitions, the challenge is to impugned FIR being I-C.R. No. 69 of 2016 registered against the petitioners with 'A' Division Police Station, Rajkot under Sections 406, 420, 465, 467, 469, 471, 474 and 120B of the Indian Penal Code on 20.3.2016.
2. The complaint is filed with the allegation that in relation to "Jani Building", which was purchased for Rs.30 Lakh on 30.01.1997, in it the complainant claims his share to be 16.66% The complainant alleges that the petitioners along with others had hatched conspiracy and purchased 40% share of the building from the co-owners of the building. It is further alleged that those co-owners had only 23.33% share and thereby the said sale-deed is a forged document and accused have committed offence of criminal breach of trust, cheating and forgery. The Page 1 of 10 Downloaded on : Mon Jan 17 03:19:43 IST 2022 R/CR.MA/7607/2016 ORDER DATED: 26/10/2021 petitioners of Criminal Misc. Application No. 7607 of 2016 are the accused No.5, 6 and 7, who are the purchaser of the property. The petitioner Nos. 1 to 4 in Criminal Misc. Application No. 8072 of 2016 are predecessor in title who are accused No.1 to 4 and petitioner No.5 is Power of Attorney Holder of petitioner Nos. 1 to 4.
3. The petitioners state that informant was in need of money and, therefore, he sold his undivided share in Jani Building in favour of Mr. Navinbhai Kangad by executing registered Agreement to Sell on 12.11.2001 and issued receipt before Notary on 14.11.2001. Over and above the Agreement to Sell , the informant has also given Power of Attorney to Mr. Jayprakash Kankad on 12.9.2013 and pursuant to Power of Attorney, registered Sale-deed was executed in favour of Navinbhai Kangad on 12.9.2013. It is stated accused No. 1 to 4 sold their undivided share of Jani Building to the accused Nos. 5 to 7 by registered Sale-deed on 21.9.2013. It is contended that one of the co-owners of Jani Building Mr. Hemangbhai Nanubhai Kangad had filed Special Civil Suit No.227 of 2013 before the Civil Court at Rajkot with prayer to declare the sale deed dated 21.9.2013 as null and void. The said Suit came to be dismissed on 2.11.2015.
3.1 It is also stated that the complainant himself had filed Special Civil Suit No. 198 of 2013, the Injunction Application was rejected by order dated 23.4.2014. Inspite of this factual aspect, after a period of 3 years of the execution of sale deed dated 21.9.2013, the impugned FIR came to be filed.
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4. Heard Mr. Sanjanwala, learned Senior Advocate along with Mr. Chetan Pandya, learned advocate for the petitioners. He submitted that the impugned FIR is total abuse of process of law. The Suit being Special Civil Suit No. 227 of 2013 came to be dismissed on 2.11.2015 and all the relevant issues were raised below Exh-39 of the Suit and the plaintiff Hemangbhai Nanubhai Kangad failed to prove the issues, and therefore, by examination of the facts and evidence on record, Mr. Sanjanwala submitted that the Suit came to be dismissed. He submitted that the complainant could not succeed in the Injunction Application in the Special Civil Suit No. 198 of 2013, and so out of personal vengeance, the impugned FIR has been lodged by suppressing of the material facts of the results in the Suit. Mr. Sanjanwala further stated that the complainant failed to appear in his Suit in Special Civil Suit No.198 of 2013 before the Court and, therefore, on 7.12.2013, the Suit was ordered to be dismissed for default.
5. In the present matter at hand, notice was served to respondent No.2, who has failed to appear and even has not filed any appearance through an advocate. The complainant has moved the Police of 'A' Division Police Station, Rajkot on 20.3.2016, contending that he has undivided share in the property of Jani Building, registered with document No.237 of 1997. He has alleged that he, along with 10 others, had purchased the property for Rs.30 Lakh and according to him, he had share of 16.66% in the property. The complainant alleged that accused Nos. 1 to 4 inspite of knowing the fact that they had 23.33% undivided share in the property, had sold 40% share of the property to the accused Nos. 5, 6 and 7 and though the said Page 3 of 10 Downloaded on : Mon Jan 17 03:19:43 IST 2022 R/CR.MA/7607/2016 ORDER DATED: 26/10/2021 fact was known to accused Nos. 5, 6 and 7, they had purchased the property. Accused. No.8, as Power of Attorney holder of accused Nos. 1 to 4, has signed the document and accused No.9, though was in knowledge of this fact, had been witness in document No. 6680/2013 and, therefore, he alleges that all accused had hatched conspiracy and had executed false documents for the personal financial gain. The complainant himself was before the Civil Court in Special Civil Suit No.198 of 2013. He had challenged the registered sale-deed No.6154 dated 2.9.2013 with the relief to declare it as bogus and fraudulent. The complainant as a plaintiff, could not succeed in the Injunction application and, thereafter too failed to appear before the Court and had not cared to adduce any evidence before the Court and thereby on 7.12.2018 Suit came to be dismissed for default.
6. It is submitted by Mr. Sanjanwala that prior to this FIR, a complaint against some of the co-accused was filed before 'A' Division Police Station, Rajkot and the Police had filed closure report on 17.7.2014 and private complaint before the Judicial Magistrate is also filed against some of the co-accused.
7. The issues agitated in Special Civil Suit No. 227 of 2013 was considered by the 12th Additional Senior Civil Judge, Rajkot. The Suit was dismissed on 2.11.2015. The complainant's suit being Special Civil Suit No. 198 of 2013 came to be dismissed for default, the parties were before the Civil Court for agitating their rights on the alleged disputed property.
8. The Section invoked are 406, 420, 465, 467, 468, 469, 471, Page 4 of 10 Downloaded on : Mon Jan 17 03:19:43 IST 2022 R/CR.MA/7607/2016 ORDER DATED: 26/10/2021 474 and 120B of the IPC. The position of law has been succinctly explained by the Supreme Court in the case of Mohammed Ibrahim and others vs. State of Bihar and another, reported in (2009) 8 SCC 751, which read as under:
"9. Let us first consider whether the complaint averments even assuming to be true make out the ingredients of the offences punishable either under Section 467 or Section 471 of Penal Code.
10. Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be as forged document, shall be punished in the same manner as if he had forged such document.
11. Section 470 defines a forged document as a false document made by forgery. The term "forgery" used in these two sections is defined in Section 463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
12. Section 464 defining "making a false document" is extracted below:
"464. Making a false document. - A person is said to make a false document or false electronic record-
First. - Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;Page 5 of 10 Downloaded on : Mon Jan 17 03:19:43 IST 2022
R/CR.MA/7607/2016 ORDER DATED: 26/10/2021
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, With the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly. - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly. - Who dishonestly or fraudulently causes any person to sign, seal, executed or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1 - A man's signature of his own name may amount to forgery.
Explanation 2 - The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
(Note : The words 'digital signature', wherever it occurs were substituted by the words 'electronic signature' by Amendment Act 10 of 2009)".
13. The condition precedent for an offence under Section 467 and 471 is forgery. The condition precedent for forgery is making a false document Page 6 of 10 Downloaded on : Mon Jan 17 03:19:43 IST 2022 R/CR.MA/7607/2016 ORDER DATED: 26/10/2021 (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
14. An analysis of Section 464 of Penal Code shows that it divides false documents into three categories :
1. The first is where a person dishonestly or frudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or by any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or
(b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
15. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the Page 7 of 10 Downloaded on : Mon Jan 17 03:19:43 IST 2022 R/CR.MA/7607/2016 ORDER DATED: 26/10/2021 documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category.
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of 'false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
9. In the case of M/s. Indian Oil Corporation Limited v. M/s. NEPC India Limited, reported in AIR 2006 SC 2780, the Hon'ble Page 8 of 10 Downloaded on : Mon Jan 17 03:19:43 IST 2022 R/CR.MA/7607/2016 ORDER DATED: 26/10/2021 Supreme Court has observed as under:-
"10. A growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged
10. There does not appear to be any inducement to the complainant. The allegations are of selling the property by the co-owners, which according to the complainant, was more than the shares which they possessed. What should be the share of the co-owners of the property is a dispute which is required to be decided by the Civil Court. Police has no authority to interfere in the civil rights of the party. The complainant has failed to disclose before the police about both the Suits. Non-disclosure of Civil Suits amount to material suppression which if taken into consideration to the facts and circumstances of the case, smacks of malafide. Prima-facie case of the facts as alleged in the impugned FIR itself discloses that the complainant was disputing his share in the property. The allegation itself shows that he was claiming his civil right. The question of title, right to possession, right for enjoying the property and similar other matters are to be adjudged by Civil Court and thus are not the matters which are to be dealt by the Police. The rule of law in the Country is likely to Page 9 of 10 Downloaded on : Mon Jan 17 03:19:43 IST 2022 R/CR.MA/7607/2016 ORDER DATED: 26/10/2021 be jeopardised if the policeman are to be deciding matters of civil rights. Any such aid by the Police by permitting the complainant to file the FIR, would obstruct the very process of law and such FIR cannot be permitted to be an instrument in the hands of the aggrieved to wreak vengeance. His right to get his title or claim on the property are to be decided by the Civil Courts. There is no dispute on the documents through which all the co-owners had purchased the property. What could be their shares and how much of the property would come by way of their ownership, is only to be decided by the Civil Court and in such circumstances, criminal liability cannot be fastened on the accused. The only right the complainant acquires is remedy in the Civil Court. Merely claiming that he has been cheated unless fraudulent or dis-honest intention has been shown, the criminal prosecution on that ground cannot be permitted.
11. Thus, on the facts of this circumstances and the reasoning given hereinabove, the impugned FIR being I-C.R. No. 69 of 2016 against the petitioners in both the petitions, registered with 'A' Division Police Station, Rajkot on 20.3.2016 qua the present petitioners are quashed and set-aside. Rule is made absolute.
(GITA GOPI,J) SAJ GEORGE Page 10 of 10 Downloaded on : Mon Jan 17 03:19:43 IST 2022