Gujarat High Court
Nitinbhai @ Raju Pushottambhai ... vs State Of Gujarat on 20 December, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/3284/2016 ORDER DATED: 20/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3284 of 2016
With
CRIMINAL MISC.APPLICATION (FOR INTERIM RELIEF) NO. 2 of 2021
In R/SPECIAL CRIMINAL APPLICATION NO. 3284 of 2016
With
R/SPECIAL CRIMINAL APPLICATION NO. 3385 of 2016
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NITINBHAI @ RAJU PUSHOTTAMBHAI PRAJAPATI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. YOGESH S. LAKHANI, SENIOR ADVOCATE ALONGWITH MR RAHUL
R DHOLAKIA(6765) for the Applicant(s) No. 1
MR JM PANCHAL, SENIOR ADVOCATE ALONGWITH MR ASHISH M
DAGLI(2203) for the Respondent(s) No. 2
MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/12/2021
ORAL ORDER
1. Both the petitions arise out of the same FIR where petitioners have prayed for quashing of the FIR against them. The matter being on common facts and with the same relief, is dealt with together.
1.1 The petitioner of Special Criminal Application No. 3284 of 2016 contends himself to be a bonafide purchaser of the land in question; while the petitioner of Special Criminal Application No. 3385 of 2016 states that he is the power of attorney holder of Somabhai Sakrabhai Patel which was executed on 18.04.1988.
1.2 The impugned FIR is registered on 17.03.2016 as C.R. No. I - 41 of 2016 with Nikol Police Station for the offences punishable under Sections 419, 420, 465, 467, 468, 471, 474, Page 1 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 120(B) of the Indian Penal Code. Both the petitioners are the accused in the impugned FIR. The complainant is the son of Somabhai Sakrabhai, who alleges that Survey No.460 and Survey No.462/1 of Nikol Village was sold away by the said power of attorney on the basis of forged signature of his father on the power of attorney. It is also alleged that Survey No. 450/4 which includes well and a room was sold away by the said power of attorney, and on the basis of forged signature, false documents have been created, and Survey No.460 had been sold to accused No.2 - petitioner of Special Criminal Application No. 3284 of 2016 - Nitinbhai Purshottambhai Prajapati and his father Purshottambhai S. Prajapati. The petitioner contends that the FIR is false, frivolous and is filed with an ulterior motive of causing harassment to the petitioner; is not legally sustainable and it amounts to abuse of the process of law. The complainant has suppressed the material facts before the Investigating Agency regarding various civil litigations which were pending between the parties before the Civil Court and the FIR is filed after a delay of 28 long years and the delay has not been explained.
2. Mr. Yogesh S. Lakhani, learned Senior Advocate alongwith Mr. Dholakia, learned advocate for the petitioner submitted that Sakrabhai Sankarbhai Patel who was the original owner of agricultural lands bearing Survey No. 460, ad- measuring 4 Acre 5 Guntha as well as half share in Well and Room situated in Survey No.450/4 and Survey No.462/1 ad- measuring 1 Acre and 38 Gunthas situated at Nikol Village had passed away, leaving three sons namely, Ishwarbhai, Ramanbhai and Somabhai and four daughters namely Dahiben, Maniben, Kamlaben and Shantaben, out of whom Page 2 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 Shantaben died on 22.05.1984 and Dahiben expired on 27.09.1991. There was a family partition and the land bearing Survey No. 462/1 as well as half of the share situated in Survey No. 450/4 had gone into the share of Somabhai; whereas the land bearing Survey No. 460 came in the hands of Ishwarbhai and Ramanbhai. Ishwarbhai died on 27.12.1968 and Somabhai passed away on 16.4.2000.
2.1 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that Somabhai Sakrabhai Patel had sold his share of land vide registered Sale Deed No. 6882/1988 for a consideration of Rs.39,000/- to Purshottambhai Shankarlal Prajapati. Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the signature on that sale deed before the Sub-Registrar is not disputed even during the life time of Somabhai Sakrabhai. He submitted that, out of total consideration of Rs.39,000/-, the bank account is credited to Rs.24,000/- which was confirmed by the bank, and rest of the amount was paid in cash.
2.2 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that irrevocable general power of attorney came to be executed by Somabhai Sakrabhai in favour of Rameshbhai Dahyabhai Patel (petitioner of Special Criminal Application No. 3385 of 2016) on the very same day i.e. 18.04.1988 the date on which the Sale Deed No. 6882/1988 was registered and the said power of attorney was executed before the Executive Magistrate.
2.3 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the power of attorney was executed in favour of Page 3 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 Rameshbhai Dahyabhai Patel only to safeguard the interest of Somabhai Sakrabhai in case of any exigency as Somabhai had already sold off his land. Learned Senior Advocate Mr. Lakhani submitted that Somabhai during his life time had never disputed the fact of family partition and even the property which has gone into the share of Ishwarbhai and Ramanbhai is not disputed. Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the heirs of Ishwarbhai and Ramanbhai had sold their share of land by registered sale deed No.21604/1993 dated 29.09.1993 for a consideration of Rs.1,65,000/- to Purshottambhai Shankarlal Prajapati and Nitin Purshottambhai Prajapati (petitioner of Special Criminal Application No. 3284 of 2016) and stated that to avoid any technical issue the signature of power of attorney was taken on the said document. Mr. Lakhani, learned Senior Advocate also submitted that a confirmation deed No. 21605/1993 was also executed on 29.11.1993 by the co-owners and Rameshbhai Dahyabhai in his capacity as the power of attorney holder of Somabhai Sakrabhai confirming the earlier registered sale deed dated 18.04.1988.
2.4 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the heirs of Shantaben Sakrabhai and Maniben Sakrabhai had filed RTS Case No. 2 of 1999 and 3 of 1999 in relation to the land bearing Survey No. 460 wherein Somabhai Sakrabhai was made defendant who had filed his appearance through his advocate, and therefore, to this very fact, Mr. Lakhani, learned Senior Advocate submitted that there was no such issue of forgery in the power of attorney nor there would have been any dispute about the sale deed and the confirmation deed of 1993. Mr. Lakhani, learned Senior Page 4 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 Advocate stated that the land of Survey No. 460 was sold by Somabhai, and therefore, there should not be any grievance by the complainant who is the son of Somabhai. Mr. Lakhani, learned Senior Advocate for the petitioner submitted that heirs of Ishwarbhai and Ramanbhai had filed Regular Civil Suit No. 787 of 2005 before the Civil Court at Ahmedabad (Rural) challenging the sale deed for Survey No. 462/1 and it is stated that the complainant Chetanbhai Somabhai Patel was a party to the suit, inspite of that fact after a long silence the impugned FIR has been filed.
2.5 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that RTS Appeal No. 174 of 2008 was preferred by the heirs of Somabhai Sakrabhai including the complainant challenging the revenue entry towards the sale deed of Survey No. 462/1 which was rejected on 18.03.2011, therefore too contended, that the very allegation of forgery would not find any foot and should be considered as false. The Revision Application No. 96 of 2011 against the order passed in RTS Appeal no. 174 of 2008 was also rejected on 31.03.2013.
2.6 Mr. Lakhani, learned Senior Advocate for the petitioner further submitted that the heirs of Kamlaben Sakrabhai had preferred RTS Appeal No. 490 of 2011 and 491 of 2011 challenging the inheritance entry in the year 1970 for Survey No. 460 and inheritance entry mutated in the year 1989 for Survey No. 462/1, which came to be rejected on 30.10.2012. As against the said, Revision Application No. 20 and 21 of 2013 was preferred which too was rejected vide order dated 12.11.2013. The complainant had also addressed a written complaint to Karanj Police Station on 18.05.2013 and Page 5 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 thereafter had preferred RTS Appeal No. 107 of 2013 challenging the mutation entry with regard to Sale Deed No. 21604 of 1993 for Survey No. 460 which came to be dismissed on 27.02.2015 and the revision preferred against that order was rejected on 18.01.2017 being the proceedings as Revision Application No. 454 of 2015.
2.7 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that Regular Civil Suit No. 357 of 2013 preferred by the complainant Chetanbhai Somabhai Patel of this impugned FIR before the Civil Court, Ahmedabad (Rural), challenging the Sale Deed No. 21604 of 1993 was dismissed on 31.07.2017 against which Civil Misc. Appeal was preferred by him which was also rejected vide order dated 16.01.2018. As against the same, Appeal from Order No.200 of 2017 and SCA No. 4387 of 2018 has been preferred which is pending adjudication before this Court.
2.8 Mr. Lakhani, learned Senior Advocate for the petitioner stated that the complaint moved before the Karanj Police Station on 18.05.2013 was withdrawn by the respondent No.2- complainant of the impugned FIR; and a closure report dated 27.07.2013 was filed by Odhav Police Station, Ahmedabad, in connection with the complaint dated 30.01.2013.
2.9 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that Special Criminal Application No. 4967 of 2015 was moved by the respondent No.2 suppressing the status of the earlier complaint and submitted that the closure report of complaint of Odhav Police Station was not produced before this Court, and therefore, it can be considered that the respondent Page 6 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 No.2 has misguided the court. Learned Senior Advocate Mr. Lakhani, however, contended that on the order of this court, the impugned FIR came to be registered and in connection with the FIR filed, both the petitioners were arrested by the Investigating Officer and they were released on bail by the order of Sessions Court. To the chargesheet on 27.04.2016, Mr. Lakhani, learned Senior Advocate submits that while moving the present petition the petitioners were not in knowledge of filing of the chargesheet, therefore draft amendment was moved which came to be allowed on 28.08.2017 and accordingly necessary amendment was carried out.
2.10 Learned Senior Advocate Mr. Lakhani submitted that while considering the documents on record, there would not be any case of forgery; the son of Somabhai Sakrabhai after a long period of 28 years has disputed the signature of his father on the power of attorney. He submitted that the father of the complainant during his life time from the date of execution of sale deed in the year 1988 till his death in the year 2000 had never disputed any of the document rather the father of the complainant was party present in the revenue proceedings and was in receipt of the consideration of the sale transaction paid by cheque duly credited in his bank account.
2.11 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the dispute raised in the FIR would not have any significance since the power of attorney has never been utilised for transferring the property. The petitioner of Special Criminal Application No. 3385 of 2016 had signed the sale deed only as a confirming party in the year 1993 in the Page 7 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 documents dated 29.09.1993 since no property was to be transferred of Somabhai Sakrabhai. Thus, it is contended that for the very first time, in the year 1993, after execution of power of attorney, Rameshbhai Dahyabhai exercised the authority granted by Somabhai. Mr. Lakhani, learned Senior Advocate for the petitioner submitted that the very sale deed dated 29.09.1993 specifies the fact that Somabhai Sakrabhai had no right, title, interest or share in the property Survey No.460 which had gone into the share of Ishwarbhai and Ramanbhai; and thus, the signature in the sale deed of Rameshbhai Dahyabhai would be as a confirming party to the sale transaction of Survey No.460, which itself clarifies that there was no injury to Somabhai or to his son - the complainant.
2.12 Mr. Lakhani, learned Senior Advocate for the petitioner submitted that though the complainant was party in various proceedings before different forum but had never raised the plea of forgery, and for the first time, in the year 2013, he came up with the stand of forgery. Relying on the judgment of Rajeshbhai Muljibhai Patel v. State of Gujarat reported in 2020(3) SCC 794 : AIR 2020 SC 818, learned Senior Advocate Mr.Lakhani submitted that the FSL report of hand writing expert is not a conclusive proof of any allegation of forgery and when the parties are before the Civil Court and when all the pleadings are raised before the Civil Court, it would be the court to take into consideration the provisions of Sections 45 and 73 of the Indian Evidence Act, and barely on the sole opinion of the hand writing expert the FIR ought not to have been registered, and therefore, learned Senior Advocate Mr.Lakhani submitted that the continuation of FIR would Page 8 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 amount to abuse of process of court as the same is filed with a malafide intention and therefore prayed for quashing of the impugned FIR, as also the subsequent proceedings filed in pursuance thereof.
3. Countering the argument, learned Senior Advocate Mr. J.M.Panchal alongwith Mr. Ashish Dagli, learned advocate for the respondent No.2-complainant submitted that the allegation in the FIR is more than a prima facie case as the impugned FIR registered is in compliance of the order passed in Special Criminal Application No.4967 of 2015, and therefore, submitted that delay in filing of the FIR would be of no consequence. Mr. J.M.Panchal, learned Senior advocate for the respondent No.2 submitted that in the criminal complaint and more specifically when the FIR is with the plea of forgery is supported by evidence in the form of hand writing expert report, the delay in filing the impugned FIR will have no significance. Learned Senior Advocate Mr.Panchal submitted that there would not be any bar of limitation for lodging the FIR.
3.1 Mr.Panchal, learned Senior Advocate for the respondent No.2 submitted that as soon as the complainant came to know about the forged irrevocable power of attorney, he had filed a complaint before the respective police station, but, since it was not within the jurisdiction, the complaint filed before Karanj Police Station was withdrawn, and that the closure report of Odhav Police Station was brought to the notice of the court during hearing of Special Criminal Application No. 4967 of 2017, and therefore, it cannot be said that there was any suppression of the progress towards the complaint or any Page 9 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 suppression of material facts.
3.2 Mr.J.M.Panchal, learned Senior Advocate has relied upon the following decisions in support of his arguments.
(1) Neeharika Infrastructure Private Limited v.
State of Maharashtra decided by Hon'ble Supreme Court in Criminal Appeal No. 330 of 2021 decided on 13.04.2021.
(2) Ram Babu v. State of Madhya Pradesh and others reported in (2009) 7 SCC 194.
(3) Dr. Lakshman v. State of Karnataka and others reported in (2019) 9 SCC 677.
(4) State of Madhya Pradesh v. Surendra Kori reported in (2012) 10 SCC 155.
(5) Dineshbhai Chandubhai Patel v. State of Gujarat and others reported in (2018) 3 SCC 104.
(6) Shantaben Bhurabhai Bhuriya v. Anand Athabhai Chaudhari reported in AIR 2021 SC 5368 :
JT 2021 (11) SC 426.
3.3 Mr.J.M. Panchal, learned Senior Advocate submitted that this Court should be slow in quashing the FIR, when prima facie the facts discloses a criminal offence. Mr. Panchal, learned Senior Advocate submitted that at this stage the court has not to evaluate or assess the truth of the allegation but the question before the court is to decide the case on the basis of cognizable offence or the offences, alleged to have been committed by the accused persons. Mr. Panchal, learned Senior Advocate submitted that, on examination of the factual contents of the FIR, to see whether it discloses any prima facie Page 10 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 cognizable offence or not; the High Court cannot act as an investigating agency and the High Court cannot appreciate the evidence nor can draw its own inference on the contents of the material relied on. Referring to the provisions of Section 482 of Cr.P.C, learned Senior Advocate Mr.Panchal submitted that the powers are to be exercised sparingly with circumspection and the High Court while examining an FIR/complaint should not enter into the disputed area of the allegation.
4. The petitioner of Special Criminal Application No. 3284 of 2016 is the purchaser of the property, alongwith his father , which is Survey No. 462/1. The said Survey No. 462/1 was sold by father of the complainant - Somabhai Sakrabhai in his individual capacity and by the manager of HUF and the natural guardian and next friend of the minors. The complainant and his brother were minors. Somabhai Sakrabhai had sold the property to Shankerbhai Prajapati - the father of petitioner of Special Criminal Application No. 3284 of 2016. The said document acknowledges the fact of oral partition of HUF property. The sale consideration is not disputed and the sale deed is signed by Somabhai Sakrabhai - father of complainant on 18.04.1988. The sale deed dated 29.09.1993 is for the property of Survey No. 460 and Survey No.450/4. The said property was sold to Purshottambhai Prajapati and Nitinbhai Purshottambhai Prajapati (petitioner of Special Criminal Application No. 3284 of 2016) by heirs of Ishwarbhai and Ramanbhai. The said document also shows the party of 2 nd part as Somabhai on his own and manager of HUF through power of attorney Rameshbhai Dahyabhai (petitioner of Special Criminal Application No. 3385 of 2016) and even Page 11 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 Maniben - the daughter of Sakrabhai Shankerbhai. The very document reads with specification that Somabhai had no right, title or interest in the property Survey No.460 which by way of partition had gone to Ramanbhai and the heirs of Ishwarbhai; while Somabhai was allotted Survey No.462/1, since partition Survey No.460 had been in possession and in ownership of heirs of Ishwarbhai and Ramanbhai who were parties to the said transaction. The documents thereafter clarifies that Somabhai does not have have any right, title or interest in the said property, but, just to avoid any technical issue, he has been shown as party no.8 in the said sale deed. The said sale deed thus clarifies that the petitioner of Special Criminal Application No. 3385 of 2016 is only confirming party to the sale transaction of property Survey No.460 which has gone into the share of Ishwarbhai and Ramanbhai. Thus the very allegation of the complainant that the property of his father was sold away by power of attorney (petitioner of Special Criminal Application No. 3385 of 2016) stands prima facie refuted. These facts in the sale deed has not been considered by the Investigating Officer. The Investigating Officer ought to have even apprised himself of the closure report filed by Odhav Police Station. Execution of the sale deed dated 29.09.1993 and another confirmation document registered before the Sub-Registrar on the same day affirms and confirms the fact of sale of property of Survey No.462/1 registered on 18.04.1988. It also clarifies that the power of attorney was signed by Somabhai. The document registered on 29.09.1993 prima facie confirms the share of the individual owner as an heirs of Sakrabhai Shankerbhai; both these documents affirms the oral partition. Thus there was no reason for the present complainant to raise grievance alleging forgery. The sale Page 12 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 deed of 1988 was executed by his father on behalf of HUF and even as a natural guardian and next friend of minor and at that relevant time the present complainant was minor. Had there been any grievance that the sale deed was not in consonance to the oral partition or was affecting his right as one of the co-parcener, on attaining majority the complainant could have filed the case against his father for setting aside the sale deed of 1988. The parties are before the civil court and in revenue proceedings. The record suggest that the revenue proceedings had been exhausted. Reliance has been placed on hand writing expert report by the complainant.
In the case of Rajeshbhai Muljibhai Patel (supra), the Hon'ble Supreme Court in para 18 and 19 has observed with regard to hand writing expert report as under:
"18. Be that as it may, in the Summary Suit No.105/2015, leave to defend was granted to respondent No.2-Mahendrakumar on 19.04.2016. On the application filed by appellant No.3 in the said Summary Suit No.105/2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of respondent No.2- Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No.I- 194/2016 was registered on 28.12.2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court "whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts. When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would Page 13 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 prejudice the interest of the parties and the stand taken by them in the civil suit.
19. It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the plaintiff-appellant No.3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No.I-194/2016, in our view, would amount to abuse of the process of Court and the petition filed by the appellants under Section 482 Cr.P.C. in Criminal Misc. Application No.2735/2017 to quash the FIR I-194/2016 is to be allowed."
5. The hand writing expert is not a conclusive evidence. Thus reliance on the hand writing expert report to draw inference of criminality would be weak piece of evidence when the parties can disprove the hand writing expert opinion. The complainant has not raised any grievance against the heirs of Ishwarbhai and Ramanbhai alleging conspiracy that they are not accused in the FIR. The complainant has not challenged the sale deed executed by his father in relation to Survey No.462/1 of sale deed dated 18.04.1988.
6. It is required to be noted that the power of attorney which is stated to be with the forged signature of the father of the complainant was executed before the Executive Magistrate which remained in force till the death of Somabhai. The father of the complainant had never disputed the power of attorney. The complainant has raised allegation in context with the sale deed dated 29.09.1993. So from 1988 till 1993 Page 14 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 there was no objection or any grievance raised against the power of attorney so executed by the father of the complainant who died in the year 2000. Till the year 2000 no such claim of forgery was raised. Somabhai himself and heirs of Ishwarbhai and Ramanbhai none of them have claimed that the power of attorney was forged. Both the documents were executed on 29.09.1993 in presence of heirs of Ishwarbhai and Ramanbhai himself. Rameshbhai Dahyabhai Patel as a power of attorney of Somabhai had signed in presence of all the vendors. The confirmation document also proves that none of them had taken any objection towards the power of attorney which was executed by Somabhai. None had any reservation while executing the document on 29.09.1993. The FIR appears to be maliciously lodged with an ulterior motive. The parties before the civil court are disputing the civil rights. The complainant had not succeeded before the revenue proceedings, and thereafter attempts are made to give criminal colour to the admitted and affirmed documents. The complainant has failed to show prima facie how he has been injured, what damage is caused to him by the execution of the referred documents.
7. In the case of Mohd. Ibrahim and others v. State of Bihar and another reported in (2009) 8 SCC 751, the Hon'ble Supreme Court in para 9, 10 and 11 has observed as under:
"9. 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 Page 15 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
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;
(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 alternation; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute 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.Page 16 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022
R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 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].
The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (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.
10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
10.1) The first is where a person dishonestly or fraudulently 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.
10.2) 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 any other person.
10.3) 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 Page 17 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 of the document or the nature of the alteration.
11. 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."
8. Here in this case the petitioner of Special Criminal Application No. 3284 of 2016 is the owner of the property Survey No.462/1 was purchased by his father and Survey No.460 was purchased by him alongwith his father. As per the record both the properties had been purchased by them from all the heirs of Sakrabhai Shankerbhai. The alleged power of attorney had not been used for any delivery of any property or transfer of property. The signature of the petitioner of Special Criminal Application No. 3385 of 2016 on both the documents dated 29.09.1993 is only as a confirming party. The parties who had sold the property are Ramanbhai himself and the heirs of Ishwarbhai. Thus, prima facie, there could not be any case of cheating as dishonest or fraudulent inducement to deliver any property is not made out in the FIR. The said power of attorney has not been used by the petitioner of Special Criminal Application No.3385 of 2016 to deceive any person. There is no injury sustained by the complainant through the petitioner of Special Criminal Application No. 3385 of 2016. The FIR does not disclose any ingredients of cheating and there does not appear any false or misleading representation or any dishonest inducement. The accused have not dishonestly induced any person to deliver any property to any person or to make, alter or destroy wholly or in part any valuable security or anything signed or sealed and Page 18 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 which is capable of being converted into a valuable security. The FIR does not disclose any mens rea to even consider the case of any inducement.
9. In case of State of Haryana V. Bhajan Lal and others, AIR 1992 SC 604, the Apex Court made the following observations:-
"8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised 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 channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:
(a) 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;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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;
(c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) 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;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on Page 19 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022 R/SCR.A/3284/2016 ORDER DATED: 20/12/2021 the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) 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 provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
10. In the result, both the petitions are allowed. The first information report bearing C.R. No. I - 41 of 2016 registered with Nikol Police Station, Ahmedabad, and the Criminal Case No. 4104 of 2016 pending before the Court of learned 9 th Additional Judicial Magistrate First Class, Ahmedabad (Rural), and the subsequent proceedings initiated in pursuance thereof qua the petitioners are quashed and set aside. Rule is made absolute to the aforesaid extent.
In view of the disposal of main matter, Criminal Misc. Application No. 2 of 2021 does not survive and accordingly the same is also disposed of.
Direct service is permitted.
(GITA GOPI,J) A.M.A. SAIYED Page 20 of 20 Downloaded on : Wed Jan 12 12:49:27 IST 2022