Gujarat High Court
Vasudevbhai Kedarmal Agrawal & 3 vs State Of Gujarat & on 20 June, 2017
Author: B. N. Karia
Bench: B.N. Karia
R/CR.MA/2984/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 2984 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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VASUDEVBHAI KEDARMAL AGRAWAL & 3....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR K J PANCHAL, ADVOCATE for the Applicant(s) No. 1 - 4
MR BC DAVE, ADVOCATE for the Respondent(s) No. 2
MR KP RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 20/06/2017
CAV JUDGMENT
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1. The applicants-original accused have preferred this application under Section 482 of the Code of Criminal Procedure, 1973 {"CrPC" for brevity} for quashing and setting aside the FIR, being C.R. No. I- 23 of 2011 registered with Changodar Police Station, Ahmedabad for the offence punishable under Section 379, 427 and 114 of the Indian Penal Code with all consequential proceedings.
2. Brief facts of the case are that the respondent no.2/complainant lodged the impugned complaint on 5th February, 2011 wherein it is alleged that the complainant kept two Bighas of land in the year 1985 by executing an agreement to sell from the land owner ie., Popatbhai Kanjibhai Mistri by giving consideration amount of Rs. 4,000/-. It is further alleged that immediately, by executing a supplementary agreement, the complainant got possession of the land and paid Rs. 36,000/- and as per the condition enshrined in the agreement to Page 2 of 37 HC-NIC Page 2 of 37 Created On Mon Aug 14 15:42:52 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT sell, the original land owner was required to get the land converted into Non Agricultural and original owner would execute the document. The said agreement was agreed to be in force for a period of 12 months. It was decided that until the land is converted into Non agricultural, the said agreement would continue, as the complainant was not a farmer, and therefore, it was not possible for him to execute the document in his name and thereby, the agreement to sell came to be registered, but the supplementary agreement was not registered. Thereafter, in the year 1986, one factory came to be started on the said land and for that purpose, one water tank was also erected/constructed as well as one kacha platform and one shed was also erected and on the road side, one cement godown was also constructed wherein the complainant was keeping cement and raw materials. At a distance of about 25 feet from godown, the complainant also Page 3 of 37 HC-NIC Page 3 of 37 Created On Mon Aug 14 15:42:52 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT erected six rooms in a row and the doors and windows were also installed therein and other construction was completed on the said land as well as one hydraulic machine was also installed on the site.
2.1 It is also alleged in the complaint that the factory of the complainant was being looked after by one Chandubhai Patel, who remained at the site for a period of about two to three years from 1990 and two other ladies, namely, Jyotiben Patel and Pushpaben Patel, resident of Naroda-Ahmedabad, were also residing at the said place. That, the said factory was in operation for four months and the remaining section was in operation till the year 2005 and thereafter, the said factory was closed down. Thereafter, the complainant went abroad and returned on 20th September, 2006 and when the complainant paid visit at his premises, he found that the sheds were broken and scraps thereof were Page 4 of 37 HC-NIC Page 4 of 37 Created On Mon Aug 14 15:42:52 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT lying there and other things at the site were found ransacked. Thereafter, when the complainant inquired by procuring extract of village Form No. 7/12 from the office of the Mamlatdar, it was noticed that one mutation entry in respect of the said land of the complainant was posted in the name of Vasudev Kedarmal and other three persons (present applicants). The complainant got suspicion that the said act of ransacking or demolishing of the construction might have been carried out by the applicants. The complainant also filed a civil suit and also deployed security personnel to keep watch over his property. Upon vacation of stay in the said proceedings and when no interim relief was granted in his favour; even by the Hon'ble High Court in the year 2007, the watchman of the complainant informed him telephonically that one person has encroached upon his land with JCB machine and he was immediately called at the site and while Page 5 of 37 HC-NIC Page 5 of 37 Created On Mon Aug 14 15:42:52 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT reaching there, he found that rooms were demolished and scrap was also thrown outside the plot and at that time, the complainant learnt that the said act was committed by the applicants and after some days, on account of feeling fear, the security personnel deployed by the complainant had also left the place and one display board of Apple Wood Estate Pvt. Ltd was found to be installed at the site and that is how the present complaint has been lodged.
3. Heard learned advocate Mr. K.J. Panchal appearing on behalf of the applicants, learned advocate Mr. B.C.Dave appearing on behalf of the respondent no.2, and learned APP Mr. K.P. Raval appearing on behalf of the respondent no.1-State.
4. It is submitted by the learned advocate Mr. KJ Panchal appearing on behalf of the applicants that the present applicants are absolutely innocent persons, as they are falsely roped in by the Page 6 of 37 HC-NIC Page 6 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT complainant with a view to harass them and usurp the property and extort money from the applicants. It is further submitted that the complaint filed by the respondent no.2 is sheer abuse of process of law, vexatious and frivolous. That, the complaint was filed by the respondent no.2 under Section 379, 427 and 114 of the Indian Penal Code and no prima facie case is made out against the applicant. That, ingredients of the offence as well as charge leveled in the complaint are missing against the applicants. That, the land bearing block No. 131 is situated at Sanathal was owned by Shri Ranchhodbhai Parsottambhai Patel and Shambhubhai Parsottambhai Patel. That, both the said brothers sold their land to one Popatbhai Kanjibhai Mistri on 28th April, 1983, and in turn, entry in village Form No. 6 at Sr. No. 8 on the basis of the sale deed was posted on 14th August, 1983. That, the said person Popatbhai, who was the purchaser of the land Page 7 of 37 HC-NIC Page 7 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT requested the revenue authority to mutate the names of his two sons namely Lalitbhai Popatbhai and Mukeshbhai Popatbhai in the revenue record, and therefore, mutation entry to that effect was posted at Sr. No. 4876 on 6th March, 1994 in the village Form No. 6 of the said land. That, the present applicants when intended to purchase the said land, therefore, a public notice was issued in the daily news paper on 31st March, 2005 for title clearance certificate in respect of the said land and also in respect of any encumbrances of any party. That thereafter, on 25th January, 2006 by executing two different sale deeds, the said land was purchased by the present applicants and both the sale deeds were registered with the office of Sub Registrar. That, on the basis of the said sale deed on 18th May, 2006, mutation entries were posted in their names in the village Form No. 6 at Sr. No. 7142. Thereafter, the applicants further decided to Page 8 of 37 HC-NIC Page 8 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT sale the said land, therefore, by taking full amount of consideration from one Shri Manjeetsing J. Vasu, one agreement to sell was executed; alongwith one power of attorney, whereby the possession of the land was also handed over to the purchaser on 23rd June, 2006. It is submitted by learned advocate Mr. KJ Panchal appearing on behalf of the applicants that though the agreement was executed on 23th June, 2006 and payment was received by different cheques on 27th April, 2006, possession of the land was handed over to said Shri Manjeetsing Vasu. Thereafter, upon instructions received from the purchaser on 19th October, 2007, the said land was sold to Dilipkumar Jayantilal Sanghvi, Ketankumar Jayantilal Sanghvi and Bharatkumar Jayantilal Sanghvi by way of a registered sale deed, wherein Shri Manjeetsing Vasu was included as a confirming party. It is further submitted that said sale deed was registered in the office of the Sub Registrar at Page 9 of 37 HC-NIC Page 9 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT Sr. No. 5158. That , in para 6 of the said sale deed, it is specifically stated that one agreement to sell was executed in favour of the confirming party on 23rd June, 2006 and on the same day, the possession of the said land was handed over to the confirming party and at the instance of the said Manjeetsing Vasu, the said land was further sold/transferred to the said Dilipkumar Sanghavi, Ketankumar Sanghvi and Bharatkumar Sanghvi. It is further argued by learned advocate appearing on behalf of the applicants that as per the said sale deed, the applicants had received in all Rs. 22 lacs from Shri Manjeetsing Vasu and no consideration in respect of the said land was to be received by the applicants from the purchasers. That, as per the agreement, Shri Manjeetsing Vasu was paid Rs. 24 lacs by the purchasers-Sanghvi brothers. It is further submitted that when the respondent no.2- complainant came to know about this transaction, Page 10 of 37 HC-NIC Page 10 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT on the basis of so called agreement to sell, he filed a protest application against the mutation entry No. 7142 posted in the village Form No. 6 in respect of the sale deed before the Deputy Collector, Dholka and the learned Deputy Collector, vide his order dated 17th July, 2008 in RTS Appeal No. 133/2007 was pleased to reject his application. It is further submitted that order passed by the learned Deputy Collector, Dholka in RTS Appeal No. 133/2007 was challenged by the respondent no.2 by preferring L.B. Revision Application No. 190 of 2008 before the Collector at Ahmedabad, which was ultimately rejected by an order dated 8th May, 2009. That, simultaneously the respondent no.2, on the basis of the so called agreement to sell, also filed Special Civil Suit No. 280 of 2006 alongwith application Exhibit 5 for temporary injunction before the learned Civil Judge (S.D.), 6th Court, Ahmedabad Rural. The learned Judge, after hearing both the Page 11 of 37 HC-NIC Page 11 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT parties and appreciating the documents produced on the record, vide his order dated 7th September, 2007, was pleased to reject the application of temporary injunction filed by the respondent no.2. It was held by the learned Judge that no prima facie case was found on consideration of material, as plaintiff was not able to prove his possession on the suit property. Being dissatisfied with an order passed by the learned 6th Senior Civil Judge, Ahmedabad Rural, he preferred Appeal from Order No. 333 of 2007 along with Civil application No. 12165 of 2007 before the Hon'ble High Court, which was also dismissed by an order dated 24th September, 2007, as no illegality was committed by the trial Court. It is further submitted that despite three public notices having been issued, no objections were raised by the respondent no.2- complainant and there was no challenge to the mutation entry in favour of the respondent no.4 to 7 Page 12 of 37 HC-NIC Page 12 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT ie., present applicants. That, against the order passed by the High court, the plaintiff/respondent no.2 moved to the Hon'ble Supreme Court, by way of Special Leave to Appeal (Civil) No. 22733 of 2007, which was came to be dismissed as no merit was found by the Apex Court. That, after having failed on all stages before all forums, the respondent no.2 filed the present FIR, which is nothing, but a sheer abuse of process of law. As no relief was got by the respondent no.2 in his favour, a false FIR is registered against the present applicants. That, the basic dispute canvased by the respondent no.2 is predominantly civil in nature. That, present applicants are bonafide purchasers for value and after making thorough inquiry regarding title clearance of the land and following procedural formalities by way of publishing public notice, they have purchased the said land for a temporary period and again it was handed over to Shri Page 13 of 37 HC-NIC Page 13 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT Manjeetsing Vasu. That, the said property was purchased by the applicants on 25th January, 2006 and on 27th April, 2006, it was sold to Shri Manjeetsing Vasu and payment was received by way of cheque and agreement to sell was executed in his favour. That, the possession was handed over on 23rd June, 2006 with an agreement along with Power of Attorney. That, the allegations made in the complaint that the respondent no.2 was informed by his watchman about trespassing and encroachment by some persons with JCB Machine are quite wrong and false. That, present applicants were not at all in possession of the said property. There was no question of entering into the said land illegally and committing the offences, as alleged by the respondent no.2. That, the land is an agricultural land and without the order of competent authority declaring that land to be non-agricultural , any construction which is put up on such land is contrary Page 14 of 37 HC-NIC Page 14 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT to the provisions of law, and therefore, possession of the respondent no.2 was not believed by the Hon'ble Courts; as stated above. That, the FIR is filed belatedly after a period of five years, for which no explanation; even plausible, is offered by the complainant. That, provision of Section 468 CrPC specifically bars taking cognizance after lapse of period of 3 years and the present FIR also is barred by the period of limitation as mentioned in Section 468(2)(c) of the Code of Criminal Procedure, 1973. That, in none of the proceedings initiated by the respondent no.2, he has mentioned any word about committing theft or causing mischief in respect of construction in the said property. It is further submitted that FIR is contrary to the averments made in the civil proceedings, and therefore, present FIR is required to be quashed and set aside. Further, it was requested by learned advocate Mr. K.J.Panchal appearing on behalf of the applicants to Page 15 of 37 HC-NIC Page 15 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT quash and set aside the FIR, being C.R. No. I- 23 of 2011 registered with Changodar Police Station, Ahmedabad for the offence punishable under Section 379, 427 and 114 of the Indian Penal Code and all the proceedings arising out from the said complaint.
5. Learned advocate Mr. BC Dave appearing on behalf of the respondent no.2 has strongly opposed the submissions made on behalf of the applicants and argued that this offence was committed by the applicants at any point of time, on or before 30th September, 2006. The complainant was not staying in India and mischief was committed by the present applicants. On 29th august, 1985, an agreement to sell of the disputed land was executed in favour of the complainant/respondent no.2 and possession of the land was also handed over to him. That, the complainant started his factory on the said land and machinery was lying in the factory. That, civil Page 16 of 37 HC-NIC Page 16 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT proceedings initiated by the complainant earlier are not relevant to decide the present petition. That, an affidavit was filed by the respondent no.2- complainant stating that he was doing his business of Telecom products and running his Company in the name of Slipcon System and investment was made for running the factory by making construction and bringing machineries in the year 1986. That, the factory was in operation up-to 2005, and thereafter, it was closed, as the complainant was out of the country and when he came back to India from abroad in the month of September 2006, he visited his factory and at that time, he found that the godown sheds were broken and entire factory was damaged and some of the machineries were stolen. That, he had filed a suit and prayed for interim injunction and went upto the Hon'ble Apex court. That, in the year 2007, his watchman informed him on phone that someone has entered Page 17 of 37 HC-NIC Page 17 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT into the factory premises with JCB machines and on inquiry by him, found that rooms of the factory were completely demolished and machineries lying in the room were thrown outside the factory on the road. That, he filed many applications before the higher authorities for registering his complaint, but no complaint was registered till 2011. That, after approaching all the higher authorities under SWAGAT programme, and ultimately on 22nd January, 2011 impugned complaint was registered against the accused. That, on 18th October, 2006, a written complaint was submitted to the Police Inspector, Sanand Police Station for registering the offence, but no response was received by the complainant. That, the said complaint is under investigation and police is investigating the offence, and therefore, this Court may not exercise the discretion for quashing the said complaint under Section 482 CR.PC. It is further argued that the Page 18 of 37 HC-NIC Page 18 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT person, who had purchased the land in question are not agriculturists and they are originally resident of Rajasthan. It is ultimately requested by him to dismiss the present application.
6. Learned APP Mr. KP Raval appearing on behalf of the State has supported the arguments advanced by the learned advocate Mr. BC Dave appearing on behalf of the respondent no.2 and argued that serious allegations are made by the complainant- respondent no.2 against the present applicants involving them in the offence under Sections 379, 427 and 114 of the Indian Penal Code. That, due to interim relief granted in favour of the applicants, Investigating Agency is not in a position to proceed with the investigation and without investigation, no conclusion can be arrived by this Court at this stage by exercising powers under Section 482 Cr.PC for quashing the complaint. That, an opportunity of investigation should be availed to the Investigating Page 19 of 37 HC-NIC Page 19 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT Agency to find out correctness of the allegations made by the respondent no.2 in his complaint. At this stage, this Court may not exercise discretion in favour of the applicants by quashing the complaint registered against them. Lastly, it was also requested by him to dismiss the application.
7. Heard learned advocates appearing on behalf of the respective parties as well as learned APP Mr. KP Raval appearing on behalf of the respondent no.2-State of Gujarat at length.
8. Perused the averments made in the complaint, affidavit submitted by the respondent no.2 dated 5th April, 2011 and further affidavit dated 14th June, 2017 as well as documentary evidence produced on the record by either side.
9. Having considered the facts of the case, averments made by the learned advocates as well as learned APP, it appears that the present applicants purchased a piece of land, bearing Block Page 20 of 37 HC-NIC Page 20 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT No.131, situated at Sanathal. Before purchasing the said land, a public notice was published in the daily news paper on 31st March, 2005 for title clearance certificate in respect of any encumbrances on any part over the land. It appears from the documents produced on the record that two different sale deeds were executed in favour of the applicants on 25th January, 2006 by one Poapatlal Kanjibhai, Administrator and Manager of HUF, and Mukeshbhai Popatbhai and Lalitbhai Popatbhai for sale consideration of Rs. 9,11,000/- and Rs. 9,95,000/- respectively. In the said sale deed executed in favour of the applicants, it was assured by the sellers that they were the sole owners of the land and nobody had any right, title or interest in the said land as co-owners. It appears from both these documents produced on the record that the total sale consideration was made by cheques drawn on Bank of India and State Bank of India on different Page 21 of 37 HC-NIC Page 21 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT dates. Both the sale deeds were registered before the office of Sub-Registrar at Sanand on 25th January, 2006. It also appears from the revenue record of the village, ie., Form No. 6 that, on the basis of the sale deed executed in favour of the applicants on 25th January, 2006, a mutation entry was made in favour of the applicants at Sr. No. 7142 on 8th April, 2006. It also appears from the record and documents that thereafter, the present applicants decided to sale the said land, and therefore, an agreement to sell was executed by them in favour of one Shri Manjeetsing J. Vasu. From the documents produced on the record and agreement produced at page no.90, it appears that by way of full consideration an amount was so received by the present applicants from the said Shri Manjeetsing J. Vasu and possession of the land was handed over to him on 23rd June, 2006 ie., on the date of agreement. The applicants received Page 22 of 37 HC-NIC Page 22 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT payment by way of different cheques on 27th April, 2006. Thereafter, it appears that the said Shri Manjeetsing J. Vasu, also decided to sale this land to (1) Shri Dilipkumar Jayantilal Sanghavi (2) Ketankumar Jayantilal Sanghavi and (3) Bharatkumar Jayantilal Sanghavi. On a request made by the said Shri Manjeetsing J. Vasu to the present applicants, on 19th October, 2007, a registered sale deed was executed by the present applicants in favour of the purchasers, as stated above, and Shri Manjeetsing J. Vasu was included as a confirming party and this sale deed was registered in the office of Sub-Registrar vide sr. no. 5158.
10. This Court would like to refer to all these sale deed, wherein, it is specifically stated that one agreement to sell was executed in favour of confirming party on 23rd June, 2006 and on the same day, possession of the said land was handed over to the confirming party ie., Shri Manjeetsing J. Page 23 of 37 HC-NIC Page 23 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT Vasu and at the instance of the said person ie., Shri Manjeetsing J. Vasu, the said land was further sold/transferred to (1) Shri Dilipkumar Jayantilal Sanghavi (2) Ketankumar Jayantilal Sanghavi, and (3) Bharatkumar Jayantilal Sanghavi. It appears from the sale deed that the applicants received an amount of Rs. 20 lacs from Shri Manjeetsing J. Vasu and no further consideration in respect of the said land was to be received by the present applicants from the purchasers. As per the agreement, Shri Manjeetsing J. Vasu was paid a sum of Rs. 24 lacs by the said purchasers ie., Sanghavi brothers.
11. Thereafter, it appears that when the respondent no.2 came to know about this transaction, he filed a protest application against the mutation entry No. 7142 posted in the village Form No. 6 in respect of the sale deed before the Deputy Collector, Dholka. It appears from the documents produced on the record that the Deputy Page 24 of 37 HC-NIC Page 24 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT Collector, by his order dated 17th July, 2008 in RTS Appeal No. 133/2007, was pleased to reject the said application preferred by the respondent no.2. As complainant was not satisfied with the order passed by the Deputy Collector, Dholka in RTS Appeal No. 133/2007, preferred L.B. Revision Application No. 190/2008 before the learned Collector. It appears from the documents produced on the record that the learned Collector, vide his order dated 8th May, 2009, was pleased to dismiss the said appeal preferred by the respondent no.2.
12. It also appears that during this period, the complainant, on the basis of so called agreement to sell filed Special Civil Suit No. 280 of 2006 along with an application Ex. 5 before the learned Civil Judge (S.D.), 6th Court, Ahmedabad Rural praying for interim injunction. The learned Judge, after hearing both the parties and appreciating the evidence on the record, by order dated 7th September, 2007, was Page 25 of 37 HC-NIC Page 25 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT pleased to reject the said application for interim injunction (Ex.5) filed by the respondent no.2. The learned Judge in his order found that there does not appear to be any ownership or possession of the respondent no.2-complainant and no documentary evidence was produced before him. It was further observed that the factum of running any factory on the disputed land also was not proved and/or established by the respondent no.2, and therefore, he failed to prove his ownership or possession over the said land. The respondent no.2, being aggrieved by and dissatisfied with the order passed below application ex. 5 in Special Civil Suit No. 280 of 2006, preferred an Appeal from Order No. 333 of 2007 alongwith Civil Application No. 12165 of 2007. This court was pleased to dismiss the appeal preferred by the respondent no.2 by order dated 24th September, 2007, as no illegality was committed by the trial Court. It is observed by this Page 26 of 37 HC-NIC Page 26 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT Court that despite three public notices, no objections were raised by the respondent no.2/complainant and there was no challenge to this mutation entry in favour of the original respondents nos. 4 to 7 ie., the present applicants, under the provisions of the Bombay Land Revenue Code. The alleged payment of Rs. 4000/- made by the respondent no.2 for the land and thereafter, an amount Rs. 32,000/- was not believed by this court. As against this, the present applicants/original defendants no. 4 to 7 paid more than Rs. 19 lacs for the said property and by way of a registered sale deed. Thus, the very basis on which the respondent no.2-complainant says that he was the owner of the property, and that he was in possession of the property, itself is not believed by the Court in the civil proceedings. It also appears from the documents produced on the record that against the impugned order passed by this court in Appeal from Page 27 of 37 HC-NIC Page 27 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT Order No. 333 of 2007, the respondent no.2 moved to the Hon'ble Supreme Court of India by way of filing Special Leave to Appeal (Civil) No. 22733 of 2007 which too came to be dismissed, as no merits were found by the Apex Court.
13. From the documents on the record produced by the respondent, it appears that he has tried to register an offence before various authorities against the accused. As per the complaint, this offence was committed before any point of time prior to 30th September, 2006, while the complaint was lodged by him on 5th February, 2011 ie., after passing of five years. There is a gross delay in lodging a complaint by the respondent no.2. The delay in lodging a complaint by the respondent no.2 is also not clarified and explained in the facts of the present case.
14. In Criminal Misc. Application No. 11032 of 2014, this Court (Coram: Hon'ble Mr. Justice JB Pardiwala) Page 28 of 37 HC-NIC Page 28 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT has 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 Page 29 of 37 HC-NIC Page 29 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT 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 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]."
15. In Kishan Singh (dead) thr. Lrs. V/s. Gurpal Singh & Ors. reported in AIR 2010 SC 3624, Hon'ble Apex Court, while dealing with a case of inordinate delay in launching a criminal prosecution, has held as under;
"In cases where there is a delay in lodging a 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 Page 30 of 37 HC-NIC Page 30 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT 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 the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions 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 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 : Chandrapal Singh & Ors. v. Maharaj Singh & Anr., AIR 1982 SC 1238; State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992 SC 604; G. Sagar Suri & Anr. v. State of U.P.& Ors., AIR 2000 SC 754; and Gorige Pentaiah v. State of A.P. & Ors., (2008) 12 SCC 531)."Page 31 of 37
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16. Learned advocate Mr. KJ Panchal made a mention that Section 468 CrPC places an embargo upon the courts from taking cognizance of an offence, after expiry of limitation period as provided therein. Section 468 prescribes that when the period of limitation begins. The maximum punishment under Section 379, 427 is provided as 3 years, and therefore, under Section 468 CrPC for taking cognizance of offence, the limitation period is fixed for 3 years. In the instance case, as per the complaint lodged by the respondent no. 2, the alleged offence committed was before any point of time prior to 30th September, 2006. Simultaneously, civil proceedings were initiated by the respondent no.2 before the District Court at Ahmedabad (Rural). No transaction was carried out in connection with the land in dispute by the present applicants with the respondent no.2 then. No agreement to sell, no sale deed were executed by the present applicants Page 32 of 37 HC-NIC Page 32 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT with the respondent no.2, nor he had purchased the land from the present applicants at any point of time. The alleged agreement, on which the respondent no.2 has relied, of purchasing the land in dispute is of the 1985 was not produced on the record and after inquiry made by the Court, he has produced the document in his favour executed by one Popatbhai Kanjibhai Mistri on 29th August, 1985. It appears from the record that after executing an agreement in favour of the respondent no.2, no steps were taken by him to execute the registered sale deed in his favour and for the first time, he filed Special Civil Suit No. 280 of 2006 against Popatbhai Kanjibhai and others; including the present applicants for specific performance along with an application Ex. 5 before the learned Civil Judge (S.D.), 6th Court, Ahmedabad (Rural) after 20 years or more praying for interim injunction and order passed by learned Civil Judge (S.D.), 6th Page 33 of 37 HC-NIC Page 33 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT Court, Ahmedabad Rural was confirmed by this Court as well as by the Appellate Court.
17. This Court would like to refer to a decision in the case of Minu Kumari & Anr. v. State of Bihar & Ors. reported in (2006) 4 Supreme Court Cases 359, wherein it is held that;
'Section 482 CrPC does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code,(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section Page 34 of 37 HC-NIC Page 34 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision."
18. Considering the facts of this case, the dispute involved is of a civil nature. Criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such type of transactions. In this category of cases, High Court may quash criminal proceedings, if in its view, the possibility of conviction is remote and bleak and continuation of criminal case would Page 35 of 37 HC-NIC Page 35 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT put accused to great oppression and prejudice, and extreme injustice would be caused to him by not quashing the criminal case.
19. This court is of the opinion that it would be unfair and/or contrary to continue with criminal proceedings and/or continuation of the criminal would cause abuse the process of law, despite the fact that the applicants have not participated in any of the transactions in respect of the land in dispute with the respondent no.2-complainant, or have not played any role in committing the offence; as alleged in the complaint, as argued by learned advocate appearing on behalf of the respondent no.2. To secure the ends of justice, it would be appropriate to put to end to the impugned criminal proceedings, qua the present applicants herein.
20. In view of the above, this Criminal Misc. Application is hereby allowed. Complaint, being C.R. No. I- 23 of 2011 registered with Changodar Page 36 of 37 HC-NIC Page 36 of 37 Created On Mon Aug 14 15:42:53 IST 2017 R/CR.MA/2984/2011 CAV JUDGMENT Police Station, Ahmedabad is hereby quashed and set aside with all consequential proceedings, qua the applicants. Needless to mention that the observations drawn by this Court would not in any way influence the trial qua other accused persons.
21. Rule nisi is made absolute to the aforestated extent. Ad-interim relief stands confirmed. However, there shall be no order as to costs.
{B. N. Karia, J) ksdarji Page 37 of 37 HC-NIC Page 37 of 37 Created On Mon Aug 14 15:42:53 IST 2017