Gujarat High Court
Bhurjibhai Shakraji Baranda vs State Of Gujarat & on 12 February, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/4828/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 4828 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BHURJIBHAI SHAKRAJI BARANDA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR YATIN SONI, ADVOCATE for the Applicant(s) No. 1
MR ANUJ K TRIVEDI, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/02/2015
Page 1 of 10
R/CR.MA/4828/2014 JUDGMENT
ORAL JUDGMENT
1. Since the issues involved in both the above captioned applications are more or less the same, those were heard together and are being disposed of by this common judgment and order.
2. The challenge in both the applications is to the charge- sheets filed against the applicant-accused of the offence punishable under sections 465, 467, 468, 471, 120B read with section 114 of the Indian Penal Code.
3. The Criminal Misc. Application No.4828 of 2014 arises from a first information report dated 17 th September, 2013 registered with the Bhavnagar 'A' Division Police Station vide C.R. No.I-175 of 2013. In the charge-sheet filed by the Investigating Officer dated 29th December, 2013, the applicant figures as the accused No.12.
4. The Criminal Misc. Application No.4829 of 2014 arises from a first information report dated 17 th September, 2013 registered with the Bhavnagar 'A' Division Police Station vide C.R. No.I-175 of 2013. In the charge-sheet filed by the Investigating Officer dated 4th October, 2013, the applicant figures as the accused No.12.
5. The case of the prosecution in brief is as under;
6. According to the original first informant, he holds a power of attorney duly executed by one Kekibhai Firozsha Siganporia. Shri Kekibhai Siganporia is the sole owner of the land bearing Revenue Survey No.216 paiki 1 situated at the village Nari, Taluka & District: Bhavnagar. The land in question originally Page 2 of 10 R/CR.MA/4828/2014 JUDGMENT belonged to one Banuben Bejanji Umrigar. At a later stage, the names of Nargisbanu Erachsha Umrigar and Banuben Shavaksha Umrigar were added in the revenue records of the said property. Nargisbanu Erachsha Umrigar and Banuben Shavaksha Umrigar passed away without leaving any legal heirs. The original owner Banuben Bejanji Umrigar also passed away. Late Banuben Bejanji Umrigar had one daughter, namely, Khursidbanu Jhagangirbhai Tarporewala. Khursidbanu Jhahangirbhai had adopted Shri Kekibhai Ferozsha Siganporia. Shri Kekibhai Siganporia also obtained a probate certificate from the High Court of Gujarat, on the basis of which, he became the absolute owner of the property. The power of attorney was duly executed by Shri Kekibhai Siganporia dated 30th October, 2001 in favour of the first informant for the administration of the property. It is the case of the prosecution that although Banuben Bejanji Umrigar, Nargisbanu Erachsha Umrigar and Banuben Shavaksha Umrigar had passed away long time back, the other accused persons posing themselves to be Banuben Bejanji Umrigar, Nargisbanu Erachsha Umrigar and Banuben Shavaksha Umrigar executed the two registered sale-deeds dated 27th August, 2013 bearing No.1253 and dated 27th August, 2013 bearing No.1254 respectively. It is the case of the prosecution that at that point of time, the applicant herein was serving as a Deputy Mamlatdar, E-Dhara. It is the case of the prosecution that a conspiracy was hatched to usurp the property and the applicant herein is also one of the co- conspirators.
7. So far as the second matter is concerned, the facts are the same with the only difference so far as the parcel of land is concerned and the sale-deeds allegedly executed fraudulently Page 3 of 10 R/CR.MA/4828/2014 JUDGMENT in that regard.
8. Mr. Yatin Soni, the learned advocate appearing on behalf of the applicant, vehemently submitted that there is no material worth the name to put the accused to trial. He submits that the three female co-accused had posed themselves to be Banuben Bejanji Umrigar, Nargisbanu Arachsha Umrigar and Banuben Shavaksha Umrigar. He submits that it is not expected of the Deputy Mamlatdar to verify at that stage whether the three ladies who had appeared before him were fictitious persons or were the true owners of the property. He submits that whoever comes for registration of the sale-deed has to put his thumb impression for the purpose of verification. At the time of registration of the sale- deed, three persons had come with the forged election cards as proof of identity and the Xerox copies of the said I.D. proof were also certified by a notary. In the said forged I.D., the photographs of the fictitious persons were there, however, the card revealed the name of the original owner. He submits that his client being a Deputy Mamlatdar, has no power to verify whether the election cards produced before him for verification were either genuine or forged. He submits that his client had presumed that the three females who had come before him were the true owners of the property.
9. In such circumstances referred to above, Mr. Soni, the learned advocate, prays that there being merit in both these applications, they deserve to be allowed and the respective charge-sheets be quashed.
10. Both these applications have been vehemently opposed by Mr. Anuj Trivedi, the learned advocate appearing on behalf Page 4 of 10 R/CR.MA/4828/2014 JUDGMENT of the first informant. The learned APP appearing for the State has also opposed both these applications. It is jointly submitted by Mr. Trivedi and the learned APP that all the accused persons named in the charge-sheet had conspired whereby the parcel of land belonging to and running in the name of the three deceased women were sold off to a third party for a substantial sale consideration. They submitted that the accused persons created forged election I.D. cards and the three women (accused Nos.4,5 and 6) posed themselves as the real owners and executed the registered sale-deeds. The applicant herein, as a Deputy Mamlatdar, had verified and registered the two sale-deeds dated 7th August, 2013 and 27th August, 2013 respectively for lands bearing Survey Nos.132 and 165 and Survey No.216 paiki respectively. It is submitted that the charge-sheet has been filed in both the cases and the defense of the applicant herein that he was not aware that the I.D. cards were forged and the three women who posed themselves as the owners, were not the true owners cannot be accepted at this stage.
11. In such circumstances referred to above, it is prayed that there being no merit in these applications, the same deserve to be rejected.
12. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the charge-sheets filed against the applicant herein deserve to be quashed.
13. The case of the prosecution is that of a well hatched conspiracy. In cases of conspiracy, one could seldom find any Page 5 of 10 R/CR.MA/4828/2014 JUDGMENT direct evidence. The criminal conspiracy has to be inferred from the circumstances emerging from the materials on record. The role of the applicant herein as alleged in the charge-sheet is that as a Deputy Mamlatdar, he was aware of the fact that the subject lands were disputed and that the real owners of the lands were dead and gone. Although, being in knowledge of such fact, yet the applicant acting in his official capacity, misused his office and treated and verified the forged I.D. cards as genuine and permitted the other accused persons to register the sale-deeds.
14. The statement of the Talati cum Mantri makes the picture a little more clear. In his statement, he has stated that the original owners of the subject land were dead and gone and the parcels of lands were in dispute since a long time. In his statement, he has stated that such facts were within the knowledge of the applicant being a Mamlatdar.
15. I am unable to accept the submissions canvassed on behalf of the applicant that there being no prima facie case against the applicant herein, the charge-sheets deserve to be quashed. It is well settled that in exercise of inherent powers under section 482 of the Code, the Court should not examine the facts, evidence and materials on record to determine whether there is sufficient materials, on the basis of which, the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole, whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. It is neither necessary nor is the court called upon to hold a full fledged inquiry or to appreciate the evidence collected by the Investigating Agency Page 6 of 10 R/CR.MA/4828/2014 JUDGMENT to find out whether it is a case of acquittal or conviction.
16. It is not a case where, if not interfered, that would amount to abuse of the process of the Code of Criminal Procedure or that the interest of justice favours.
17. The following circumstances brought to my notice would suggest that there is more than a prima facie case against the applicant to frame the charge and put him to trial.
1. All the accused persons named in the charge-sheets have conspired and acted jointly whereby the lands belonging to and running in the name of three deceased women have been sold off to a third party for substantial consideration.
2. The accused persons created forged election identity cards and three women (Accused No.4,5 & 6) posed as the real owners (since deceased) and executed registered sale deeds.
3. The Petitioner is a Deputy Mamlatdar and had verified and registered the two sale deeds dated 7 th August, 2013, and 27th August, 2013, for lands situated at Survey No.132 and 165 and Survey No.216 paiki, respectively.
4. The charge sheet has been filed of the offence under Sections 465, 467, 468, 471, 120(b) and 114 of the Indian Penal Code. It is the case of the Petitioner that he was not aware that the identification cards were forged or that the women posing as the owners were not the true owners.
5. The role of the petitioner as enumerated in the chargesheet is that as a Deputy Mamlatdar, he was aware of the fact that the subject lands were disputed and that the real Page 7 of 10 R/CR.MA/4828/2014 JUDGMENT owners of the lands were deceased. Although being aware of the said facts, yet the Petitioner whilst acting in his official capacity, verified the forged identification cards as genuine and permitted the other accused persons to register the sale deeds.
6. The statement of the Talati-cum-Mantri is that the original owners of the subject lands were deceased and the land were dead and gone and the property was in dispute since a long time. Such facts were known to the office of the Mamlatdar and the Petitioner. The said statement imputes the Petitioner of having knowledge of the true owners of the land and their status.
7. A bare perusal of the voter identification card produced by the fictitious owners, it is prima facie evident that the same are forged and the said fact could not have been overlooked by the petitioner as it is evident to any person with ordinary prudence and judgment.
(a) The applicant should have ascertained the identity of the persons by checking the voter id numbers, which is required to be done according to the procedure of the revenue department and the Government Circular of April, 2014.
(b) The name of the original (deceased) owners was entered in the revenue record in 1954. The sale deeds in the present case were executed in August, 2013, i.e. after a period of 60 years. Consequently, the owners ought to be of atleast 60 years at the time of the sale, Page 8 of 10 R/CR.MA/4828/2014 JUDGMENT i.e. August, 2013, if assuming their names were entered at the time of their birth. The voter id cards at page 29/A,31/A and 33/A reflect the age of fictitious sellers as 52,70, and 50. This would easily reflect that the voter id cards were forged and fabricated and the holders thereof were fictitious.
(c)The last name of all three persons in the voter id cards is the same, i.e. parsi. The same also reflects that the voter id cards are forged. Assuming that the said is not the last name but the faith of the person, the same also reflects that the voter id cards are fake as the voter id cards do not reflect the faith of the card holder.
8. On mere physical verification the petitioner could have known that the accused persons posing as sellers and were fictitious. The husband of one of the purchasers in his statement has stated that at the time of registration of the sale deeds, the three women seemed to be fictitious as they did not look like parsis. The very same statement is made by one another purchaser. Consequently, the identity of the persons posing as the real owners was doubted by the ordinary individuals, at the time of registration of the sale deeds, but the said fact has been deliberately overlooked by the Petitioner, who is the deputy mamlatdar.
9. The petitioner at two stages could have verified the voter id cards, as well as, the identity of the fictitious persons, i.e. on 7th August, 2013 (first sale deed), and after a period of twenty days, on 27th August, 2013 (second sale deed). It seems improbable that the Petitioner could have overlooked the same Page 9 of 10 R/CR.MA/4828/2014 JUDGMENT on both the occasions and the same, prima facie, cannot be termed as mere negligence.
10. The area of the subject matter land is substantially large, approximately 65 acres. As against it, the sale consideration mentioned in the sale deeds is insignificant. The said fact could not have been oerlooked by the Petitioner.
18. In the result, both these applications fail and are hereby rejected. Ad-interim order earlier granted in both the petitions stands vacated forthwith. It goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the question raised in these applications and shall not be construed as an expression of the final opinion in the main matter. The ad-interim order earlier granted in both these petitions stands vacated forthwith.
(J.B.PARDIWALA, J.) Vahid Page 10 of 10