Gujarat High Court
Binaben Vikrambhai Shah vs State Of Gujarat on 20 June, 2024
NEUTRAL CITATION
R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 10843 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BINABEN VIKRAMBHAI SHAH & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. YATIN OZA, LD. SR. ADV. WITH MR RAJESH K SAVJANI(2225) for the
Applicant(s) No. 1,2
MR TATTVAM K PATEL(5455) for the Respondent(s) No. 2
MR. L.B. DABHI, LD. ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 20/06/2024
CAV JUDGMENT
1. Rule returnable forthwith. Learned APP Mr. Dabhi waives service of notice of rule for and on behalf of the respondent No.1-State and learned advocate Mr. Tatvam Patel waives Page 1 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined service of notice of rule for and on behalf of the respondent No.2.
2. By this application under section 482 of the Code of Criminal Procedure,1973, the applicants seek to invoke the inherent powers of this Court praying for quashing of the first information report being C.R. No.I-40 of 2016 registered before the Santej Police Station, Gandhinagar for the offence punishable under sections 420, 467, 468, 471 and 114 of the Indian Penal Code.
3. The brief facts of the prosecution case are that the respondent No.2-original complainant, namely, Hemantbhai Somabhai Patel lodged the impugned FIR with the Santej Police Station stating therein that his mother, namely, Cheharben Shivlal Patel purchased some parcels of land bearing Block No.1117 (agricultural land) and Block No.1118 (non-agricultural land), situated in the sim of village Rancharda by way of a registered sale-deed in the year 1980. Thereafter, out of the aforesaid two parcels of land, the land bearing Block No.1118 was sold out by his mother to the Director of Sulphur Private Limited, namely, Binaben Vikrambhai Shah by way of a registered sale deed being No.1909 dated 12.08.1994. Thereafter, as the mother of the complainant was suffering from cancer, anticipating the need of money to meet with such expenditures, the complainant applied for the title clearance certificate in the year 2007 in respect of land bearing Block No.1117 so that could sell the said property. However, the Director of Sulphur Private Limited, namely, Vikrambhai Chinubhai Shah raised objection by submitting an Page 2 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined agreement to sell in respect of the said land of Block No.1117 on 06.06.2007. It is also stated in the complaint that looking to the said agreement to sell, the same was executed on 13.12.1993 by the mother of the complainant Cheharben in favour of the Director of Gujarat Sulphur Pvt. Ltd., namely, Binaben Vikrambhai Shah in respect of both the Block Nos.1117 and 1118 bearing the signature of his mother Cheharben Shivlalbhai Patel showing her as the vendor. Upon coming to know about the same, the complainant asked his mother Cheharben about the said agreement to sell whereupon the mother of the complainant told him that she has not executed the said agreement to sell and the signature in the said document also does not belong to her. Therefore, at the relevant point of time, the complainant got verified the signature of her mother in the said document with the private handwriting expert, upon which, he came to know that the said signature was false and fabricated one. It is further alleged that thereafter in the year 2015, at the time of carrying out the survey work of his land, the said Vikram Shah also made an encroachment upon the agricultural land of the complainant of Block No.1117 by erecting the shed of his company. Therefore, the complainant made a fencing between the two lands. It is stated in the complaint that thereafter, by misusing the said agreement to sell, the said Vikram Shah instituted false cases against the complainant. It is also alleged that even as the name of the mother of the complainant was running in the electricity connection in respect of the land of Block No.1118, the said Vikram Shah addressed a letter to the G.E.B., Bopal on the letter head of his, i.e, Gujarat Sulphur Pvt. Ltd. company Page 3 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined wherein also Vikram Shah had put a forged signature of the mother of the complainant Cheharben behind his signature. Not only that, on the last page of three different stamp papers of Rs.20/- also, the signature of the mother of the complainant had been forged by the accused persons. Thus, with a view to grab the land of the complainant bearing Block No.1117, the accused Binaben Vikrambhai Shah and Vikrambhai Chinubhai Shah have created a bogus agreement to sell by forging the signature of the mother of the complainant and thereby committed an offence of cheating and forgery. Hence, the impugned FIR.
4. Learned senior advocate Mr. Yatin Oza assisted by learned advocate Mr.R.K. Savjani appearing for the applicants submits that the applicant No.2 is the Managing Director of the Company namely Gujarat Sulphur Pvt. Ltd. and is managing the day to day affairs of the company and taking all the decisions for the betterment of the company. The applicant No.1 is the wife of the applicant No.2 doing the household work and just with a view to exert pressure upon the applicant No.2, she has been falsely implicated in the present offence.
5. Learned senior advocate Mr. Oza submits that the applicants purchased parcels of land bearing Block Nos.1117 and 1118 total admeasuring 7395-51 square meter from the mother of the respondent No.2-original complainant, namely, Cheharben Shivlal Patel and for the said transaction, an agreement to sell dated 13.12.1993 also came to be executed by the mother of the complainant in favour of the applicants. The said land was purchased by the applicants for the total Page 4 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined consideration of Rs.10 Lakh, out of which, Rs.5,25,000/- was paid by way of account payee cheques and the remaining amount of Rs.4,25,000/- was paid in cash on different dates. Learned senior advocate Mr. Oza further submits that, in fact, as per the case of the prosecution, Cheharben was the absolute owner and occupant of the lands in question, i.e, Block Nos.1117 and 1118 who had purchased the subject lands in the year 1980 from the erstwhile owners by way of a registered sale deed and since then she was enjoying the possession of the subject lands. Learned senior advocate Mr. Oza also submits that after getting the possession of the subject lands, the applicants started constructing the compound wall upon the subject lands, due to which, the concerned government authorities as well as the Panchayat authorities issued notices to the applicants for carrying out non-agricultural activities upon the lands in question.
6. Learned senior advocate Mr. Oza further submits that upon compliance of the terms of agreement by the parties and after receiving an amount of consideration of Rs.3,99,000/- through three different cheques, a registered sale deed dated 12.08.1994 came to be executed in favour of the applicants in respect of the land of Block No.1118 admeasuring 2068 square meters (original size of the land is 3092-1024 square meters road deduction). Thereafter, on the strength of such a registered sale deed, the names of the applicants had been mutated in the revenue record and since then their names are running in the revenue record. Thereafter, the company started carrying out the manufacturing activities upon the said Page 5 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined land which is continued as on date. Learned senior advocate Mr. Oza also submits that machineries were also installed by the company on the said land which is being used for the purpose of keeping the finished goods, and considering the nature of the work of the company, there was a need of another big parcel of open land for the purpose of keeping the raw materials and, therefore, the land of Block No.1117 was also required to be used. Learned senior advocate Mr. Oza further submits that the Block No.1117 was an agricultural land and the applicants were not the agriculturists. Therefore, upon assurance being given by Cheharben for conversation of the said land from agricultural to non-agricultural as also as they were having cordial relationship, the applicants agreed for execution of the registered sale deed in respect of the land of Block No.1117. Learned senior advocate Mr. Oza also submits that the agreement to sell was executed for both the lands viz. Block No.1117 and 1118. However, first the applicants got executed the registered sale deed so far as the land of Block No.1118 is concerned as it was a non-agricultural land, however, as Block No.1117 was an agricultural land, registered sale deed could not be executed in respect of the said land at the relevant point of time as the applicants were not the agriculturists. However, it was clearly stated in the agreement to sell that as soon as requisite formalities of conversion would be completed, the registered sale deed in respect of land of Block No.1117 shall also be executed in favour of the applicants. Learned senior advocate Mr. Oza submits that since the execution of the agreement to sell, both the properties Page 6 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined were handed over to the applicants and since then they have been using the said property for the welfare of the company.
7. Learned senior advocate Mr. Oza submits that on 01.06.2007, a public advertisement came to be issued in relation to the subject land viz. Block No.1117 seeking title clearance by Cheharben and her family members. As soon as the said fact came to the notice of the applicants, immediately they raised objections by way of filing an appropriate application, and at that point of time, the said fact was also brought to the notice of the concerned authority specifically stating that the said property was in possession of the applicants and the original land owner has entered into an agreement to sell of the said property with the applicants and amount of consideration has also been paid to Cheharben. Reply to the said objection also came to be filed by Cheharben and others on 07.08.2007. Learned senior advocate Mr. Oza further submits that the applicants were in possession of the land in question since 03.09.1993 was well within the knowledge of all the concerned by virtue of agreement to sell. Learned senior advocate Mr. Oza also submits that on 08.10.2010, i.e, after a period of 33 months from the death of Cheharben, the son of Cheharben, i.e, the respondent No.2 herein approached Santej Police Station by way of preferring an application in the form of complaint specifically stating that the signatures contained in the agreement to sell dated 13.12.1993 as well as in the letter addressed to the G.E.B. do not belong to his mother and the applicants herein have prepared a false and fabricated documents by forging the Page 7 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined signature of his mother. Pursuant to submission of such an application, the applicants were called by the Santej Police Station on 11.12.2010, pursuant to which, the applicants were appeared before the Santej Police Station on19.01.2011, and at that point of time, statements of the applicants were recorded and the applicants had also produced all the documentary evidence with regard to their possession and occupation over the land in question before the police. Learned senior advocate Mr. Oza also submits that on 31.01.2016, the respondent No.2 along with other more than 20 persons illegally entered into the company premises and broken down the fencing as well as certain portion of the property constructed on the subject land. The watchman was also beaten by them and having come to know about such fact from the watchman, the applicant No.2 immediately rushed to the factory premises and informed the Santej Police Station about such an illegal at of the respondent No.2. However, the applicant No.2 was manhandled and threat of dire consequences was also administered by the respondent No.2. Therefore, on 31.01.2006, a complaint came to be lodged by the applicant No.2. Learned senior advocate Mr. Oza further submits that on the very next day, once again the respondent No.2 tried to illegally enter into the subject land and, therefore, on 02.02.2016, the applicant No.2 addressed a complaint to the Inspector General of Police, Gandhinagar against the respondent No.2 for his illegal act of criminal trespass and giving threat to the applicant No.2 to kill him.
8. Learned senior advocate Mr. Oza submits that as the respondent No.2 tried to illegally encroached upon the land of Page 8 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined the applicants, the applicants have approached the Civil Court by way of preferring Regular Civil Suit No.12 of 2016 for declaration and permanent injunction to which the respondent No.2-complainant has been made as the party-defendant. In the said suit, after considering the documentary evidence and the submissions made by the parties, the trial court issued notice and passed an ad-interim order on 04.02.2016 restraining the defendants from interfering with the possession of the company over the subject land which was made returnable on 11.02.2016. An application was also preferred by the applicants to carry out the Panchnama of the said property through Court Commissioner which came to be allowed and a Court Commissioner was appointed who visited the subject land on 07.02.2016. Learned senior advocate Mr. Oza also submits that the notice issued by the trial court as well as the injunction order came to be served upon the respondent No.2 as well as other defendants on 05.02.2016. Learned senior advocate Mr. Oza also submits that on the same day, i.e., on 05.02.2016, the respondent No.2 along with his son, in breach of ad-interim order passed by the trial court, illegally entered into the subject land with a huge crane and removed the fencing and put a door by damaging the factory shed and committed the illegal act. Therefore, the applicants were constrained to register the complaint against guilty the persons which came to be registered as C.R. No.I-11 of 2016 for the offence punishable under Sections 327, 341, 447, 427, 504, 506(2) and 114 of the Indian Penal Code. Learned senior advocate Mr. Oza submits that the said illegal act was done by the respondent No.2 with a view to show his possession over Page 9 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined the subject land at the time of court commissioner's visit over the subject land. He further submits that thereafter the hearing of Exh.5 application was concluded and the matter was kept for orders on 05.05.2016. However, on 05.052016, the respondent No.2 tendered the list of documentary evidences wherein a copy of the FIR registered against the applicants pursuant to the order passed by this Court dated 04.04.2016 in Special Criminal Application No.1917 of 2016 was also produced. Upon coming to know about registration of such complaint, the applicants immediately approached this Court by way of filing the present application, and while issuing notice, this Court protected the applicants by directing the concerned investigating officer not to take any coercive steps against the applicants. Therefore, the investigation was carried out by the investigating officer, however, uptill now, charge-sheet has not been filed against the applicants. Learned senior advocate Mr. Oza submits that the original land owner Cheharben entered into an agreement to sell after receiving the amount of consideration and there is no dispute about the amount paid by the applicants to Cheharben. Learned senior advocate Mr. Oza also submits that the said agreement to sell was executed in the year 1993 and the said fact was well within the knowledge of all the parties concerned. On the strength of the execution of the aforesaid agreement to sell, subsequently, a sale deed also came to be executed by Cheharben in favour of the applicants so far as land of Block No.1118 is concerned (non agricultural). It is an admitted position of fact that Block No.1117 is an agricultural land and the applicants are not the agriculturists. Since day one, the Page 10 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined factory unit was in operational mode over the subject land. Notices were also issued by the competent government authorities to the applicants as well as to Cheharben as sale deed was no executed in favour of the applicants so far as land of Block No.1117 is concerned. So far as the manufacturing activities and production work of the company upon the subject land is concerned, it was well within the knowledge of Cheharben and her family members since 1993, however, due to some technical glitches, a sale deed could not have been executed in favour of the applicants so far as the land of Block No.1117 is concerned though the applicants were in possession of the said property on the strength of the agreement to sell. Thereafter, after many years, an advertisement was issued in the newspaper for the purpose of getting title clearance certificate so far as Block No.1117 is concerned to which the applicants also raised objections. Learned advocate Mr. Oza further submits that the impugned FIR is nothing but a sheer abuse of process of law filed after a period of almost 22 years by narrating the concocted story of execution of false and fabricated documents. Learned senior advocate Mr. Oza submits that total amount of consideration of Rs.10 Lakh was paid to Cheharben in the year 1993, out of which, Rs.5,25,000/- was paid through account payee cheques and the remaining amount of Rs.4,25,000/- was paid in cash on different occasions. Learned senior advocate Mr. Oza also submits that if the signature put by the mother of the respondent No.2 upon the agreement to sell is believed to be false, no prudent person can ever execute a registered sale deed in relation to part of land which is mentioned in the Page 11 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined agreement. On the contrary, they should have approached the concerned authority to ventilate their grievance which has not been done by the respondent No.2 in the present case. In fact, the dispute is very much pending before the competent civil court, and a criminal colour is given to purely a civil dispute. Learned senior advocate Mr. Oza further submits that even if the accusation levelled in the impugned FIR against the applicants are to be taken and considered true and genuine without admitting it, even though the same does not constitute any offence against the applicants and, therefore, the impugned FIR is required to be quashed and set aside. So far as the document submitted before the GEB containing the signature of Cheharben is concerned, the same was sent to the FSL for the purpose of verifying the authenticity of the said document, and as per the opinion of the handwriting expert, the signature upon the said documents does not belong to the mother of the complainant. So far as other allegations are concerned, the original agreement to sell is not produced by the complainant before the investigating officer, and in absence of the said documents, the investigation has not reached to its logical conclusion. Learned senior advocate Mr. Oza also submits that admittedly, the application preferred by the applicants to the G.E.B. for the purpose of making change in the tariff plan in the electricity meter installed in the company was for the land of Block No.1118. There is dispute as regards the execution of the registered sale deed on the basis of which names of the applicants were entered into the revenue record. Therefore, it can safely be said that there is no mala fide intention on the part of the applicants to get any Page 12 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined undue benefit from act as alleged and the complainant has also not suffered any loss as the complainant has already received the amount of consideration for the land in question. Learned senior advocate Mr. Oza also submits that even if the entire case of the first informant is accepted as true, none of the ingredients to constitute the offence of forgery and cheating are spelt out and, therefore, the continuation of the criminal proceedings against the applicants-accused would be nothing, but an abuse of the process of law. He further submits that the dispute involved is purely a civil dispute, despite that, making false and vexatious allegations, FIR has been registered with ulterior motive to pressurize the applicants and wreck vengeance against them. Learned senior advocate Mr. Oza further submits that a civil suit filed by the applicants is still subjudice and unless and until the same is decided, no criminal prosecution can be launched.
9. To buttress his submissions, learned senior advocate Mr. Oza has put reliance upon the following decisions;
i) In the case of Kishan Singh through Lrs. vs. Gurpal Singh & Ors., reported in 2010 8 SCC 775;
ii) In the case of Madhubhai Virjibhai Patel vs. State of Gujarat, Criminal Misc. Application No.7023 of 2009;
iii) In the case of Manindersingh Jolly vs. State of Gujarat, reported in (2017) 3 GLR 1957;
iv) In the case of Khandubhai Poonabhai Tandel vs. State of Gujarat, reported in (2015) 2 GLR 1146;
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v) In the case of Jnofer Bhujwala vs. State of Gujarat, reported in (2015) 2 GLH 112;
vi) In the case of Vimla vs. Delhi Administration, reported in 1963 (Supp2) SCR 585;
vii) In the case of Kishorbhai Babubhai Sakhwala vs. State of Gujarat, Criminal Misc. Application No.1931 of 2011;
viii) In the case of Meghubhai Naranbhai Mir & Ors. vs. State of Gujarat & Anr., Criminal Misc. Application No.10803 of 2010;
10. In such circumstances, referred to above, learned senior advocate Mr. Oza prays that there being merit in his application, the same be allowed and the impugned FIR registered against the applicants-accused be quashed and set aside.
11. On the other hand, learned counsel Mr. Tatvam Patel appearing for the respondent No.2-original complainant has vehemently opposed the present application and submits that the subject lands were purchased by his mother Cheharben in the year 1980 and since then she was in absolute possession and occupation of the land in question. The applicants' family were having friendly relationship with the family of the complaint since long and, therefore, the land of Block No.1118 was sold out by the mother of the complainant to the applicants by way of a registered sale deed on receipt of amount of consideration for the said land. Thereafter, on the strength of the aforesaid registered sale deed, names of the Page 14 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined applicants were mutated in the revenue record and since then they are in possession of the said land and are doing the manufacturing activities of their company. Learned advocate Mr. Patel further submits that so far as the land of Block No.1117 is concerned, the said land is an agricultural land and the kin of the complainant are doing the agricultural activities upon the said land from the very inception and the said fact was well within the knowledge of one and all. The complainant is also paying the tax of the said land and the documentary evidence in this regard has also been produced by the complainant before the trial court in a suit proceedings. Learned advocate Mr. Patel also submits that at the time of carrying out the construction work upon the land of Block No.1118, the applicants have illegally made encroachment upon certain portion of the land of Block No.1117 by erecting a shed of their company. He further submits that in the year 2007, as the complainant was having some financial crisis, he decided to sell out the property of Block No.1117 and, therefore, for the purpose of obtaining the title clearance certificate, the complainant issued an advertisement in the newspaper, however, as soon as the said fact has come to the notice of the applicants, they have raised objections and at the time of raising objections, they have produced a copy of the agreement to sell with regard to the land of Block No.1117 containing the signature of his mother Cheharben. Having come to know about such an agreement to sell, the complainant asked his mother about the said agreement to sell whereupon he came to know that no such agreement to sell has ever been executed by his mother in favour of the Page 15 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined applicant and she has also not signed any such agreement to sell, which created suspicion in the mind of the complainant and, therefore, the complainant forwarded the xerox copy of the said agreement to sell to the private handwriting expert for getting its opinion, and as per the report submitted by the government approved private handwriting expert, the signature upon the agreement to sell does not belong to the mother of the complainant. Not only that, during the interregnum period, the complainant also came to know that the applicants have also forged the signature of his mother upon certain other documents including the letter addressed by the applicants to the G.E.B. seeking some changes in the tariff plan. Therefore, the complainant applied to the G.E.B under the Right to Information Act for obtaining the copy of the said document which was accordingly given to the complainant on 09.07.2010. The said document was also sent to the private handwriting expert to verify the genuineness of the signature of the mother of the complainant which was also opined to be the forged one by the government approved private handwriting expert. Therefore, the complainant preferred an application in the form of a complaint against the accused persons before the competent police authorities in the year 2010. Thereafter, the complainant waited for a long period of time for the action to be initiated by the police authority against the guilty persons, however, to his utter shock and surprise, no action has been taken by the concerned police authority. Thereafter, in the year 2016, a reminder was also sent to the concerned police authority, but in vain. Learned advocate Mr. Patel further submits that thereafter the Page 16 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined complainant was left with no other option but to approach this Court by filing the Special Criminal Application No.1917 of 2016 seeking direction to the concerned police authority to register the complaint. This Court, after considering the averments made in the said application and the materials available on record, allowed the said application and issued directions to the concerned police authority to register a complaint against the guilty persons, and on the strength of the order passed by this Court, FIR came to be lodged against the applicants. Learned advocate Mr. Patel also submits that as the applicants were protected by this Court, the investigation has not reached to its logical conclusion. However, as the investigation was ordered to be continued, the concerned investigating officer proceeded with the investigation and during the course of investigation, has collected certain documents which were forwarded for getting the opinion of the scientific expert, and as per the opinion given by the expert, the signatures of the mother of the complainant upon the agreement to sell as well as upon the application forwarded to the G.E.B are found to be forged one.
12. Learned advocate Mr. Patel further submits that so far as the contention raised by the applicants that there is a delay of 22 years in registering the complaint, the same would not stand for a minute as the alleged agreement to sell had never seen the light of the day till 2007 when the applicants raised objections to the advertisement issued by the complainant for obtaining the title clearance certificate. Before that, the applicant did not know whether the said document was in Page 17 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined existence or not. It was for the first time when the objections were raised by the applicants, the same had come on record. At that point of time, as the mother of the complainant was alive, the complainant made an inquiry from her about the alleged agreement to sell, whereupon the complainant was told by his mother that she has never executed any such agreement to sell in favour of the applicants nor has put any signature on any kind of documents. Therefore, as soon as the complainant came to know about the said false and fabricated agreement to sell alleged to have been executed by his mother in favour of the applicants, immediately the complainant approached the concerned police station and filed the first information report and, therefore, it cannot be said that there is a delay in registering the complaint. Learned advocate Mr. Patel also submits that at the time of filing objection, the applicants have produced the xerox copy of the agreement to sell and not the original one. Even before the trial court, the original agreement to sell has yet not been produced by the applicants. He further submits that if the Hon'ble Court would make a cursory glance upon the xerox copy of the agreement to sell, then it would be found out that the same is an unregistered document and nobody has witnessed the said document. Even the said document is not notarized before the notary. Learned advocate Mr. Patel further submits that if any agreement to sell is being executed first in point of time, then at the time of execution of the registered sale deed, there has to be a reference of such an agreement to sell which is absent in the registered sale deed. Learned advocate Mr. Patel also submits that there is no dispute as regards the execution of the Page 18 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined registered sale deed so far as the land of Block No.1118 is concerned. In fact, it is the very case of the complainant that only Block No.1118 was sold to the applicants and not the land of Block No.1117. He further submits that the applicants are trying to mislead the Hon'ble Court by addressing the Block No.1118 as subject land as there is no dispute with regard to the land of Block No.1118. Learned advocate Mr. Patel further submits that even the figures as mentioned in both the documents are not tallying. Learned advocate Mr. Patel further submits that assuming for the sake of argument that the agreement to sell was executed for the Block No.1117 also and the amount of consideration was also paid, then why the applicants have never approached the competent civil court for specific performance of contract. Even during the interregnum period from 1993 to 2016, there is nothing on record to indicate that the applicants have ever approached the mother of the complainant for getting the sale deed executed in respect of the land of Block No.1117. The applicants are miserably failed to produced a single piece of document to shown that they are the owners and occupants of the land of Block No.1117. Learned advocate Mr. Patel also submits that from the very inception, the complainant is denying the fact of receiving the amount of consideration in cash, and if at all, the complainant or any of his family members have received any amount in cash from the applicants, then the applicants have to produce the copy of the receipt of such payment, which has not been produced by them till today. Learned advocate Mr. Patel further submits Page 19 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined that it is the specific say of the applicants that Block No.1117 is an agricultural land and they are not the agriculturists.
13. Learned advocate Mr. Patel submits that the applicant has also preferred a suit before the competent civil court against the complainant, seeking declaration and permanent injunction, and to satisfy the said claim, the applicant (plaintiff) has to produce the original agreement to sell before the civil court, however, as on date, the same has not been produced by the applicants in the suit proceedings even though the same is presumed to be lying in the custody of the applicants as they had produced the xerox copy of the said agreement to sell first in point of time in the year 2007. Even during the course of investigation, the investigating officer also tried to get the custody of the original agreement to sell but could not succeed and, therefore, in the absence of the original agreement to sell, the investigation officer was not able to send the said document to the FSL for the purpose of carrying out certain scientific tests. Admittedly, the entire case of the applicants before this Court as well as before the trial court hinges upon the original agreement to sell, however, uptill now they have not produced the said document before any of the authorities. The said act, approach and conduct on the part of the applicants clearly shows that there is mens rea on the part of the applicants and they are deliberately not producing the original agreement to sell on record. He further submits that during the pendency of the present proceedings, this Court has directed the complainant to produce the disputed agreement to sell before the investigating officer.
Page 20 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined Thereafter, the statement of the complainant was recorded wherein he has stated before the investigating officer that the said document is not at all in his custody since very beginning. Not only that, the complainant was one of the defendants in the suit proceedings and the complainant has also preferred an application before the civil court to direct the applicant (plaintiff) to produce the original agreement to sell as the entire suit is based upon such document, and in absence of the original agreement to sell, the resultant effect would be nullity. The said application is pending as on date. More than eight years have been passed from the date of institution of the suit, however, the applicant (plaintiff) has not produced the original agreement to sell before the competent civil court.
14. In such circumstances, referred to above, learned advocate Mr. Patel prays that there being no merit in the present application, the same be rejected.
15. Heard the learned counsel for the parties and perused the record.
On Merit:
16. It appears from the record that both the parties are well known to each other. The mother of the complainant, namely, Cheharben Shivlal Patel purchased two parcels of land bearing Block Nos.1117 (agricultural) and 1118 (non-agricultural) somewhere in the year 1980 by way of a registered sale deed. Out of the aforesaid two parcels of land, the land bearing Block No.1118 was sold out by the mother of the complainant to the Page 21 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined applicants herein by executing a registered sale deed No.1909 dated 12.08.1994 as both the parties were having family terms. Thereafter, as alleged, as the mother of the complainant was detected with cancer, the complainant, anticipating the need of money, decided to sell out the other parcel of agricultural land bearing Block No.1117 and, therefore, he applied for title clearance certificate in the year 2007. At that time, the applicant No.2 raised an objection and submitted a xerox copy of the agreement to sell in respect of Block Nos.1117 and 1118 said to have been executed by the mother of the complainant in favour of the applicants, and upon such objection being raised by the applicants, the complainant came to know about the said transaction in respect of Block No.1117. It is alleged that the signature contained in the said agreement to sell does not belong to the mother of the complainant and the same has been forged by the applicants, and to verify the genuineness of the signature, the complainant sent the xerox copy of the disputed document to the private handwriting expert for getting its opinion, and as per the opinion of the said private handwriting expert, the signature in the document does not belong to the mother of the complainant.
17. Be that as it may. It is an admitted position of fact that there is no dispute as regards the execution of the sale deed by the mother of the complainant in favour of the applicants so far as the non-agricultural land of Block No.1118 is concerned. The dispute arose when the applicants claimed the ownership rights over the land of Block No.1117 along with the land of Page 22 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined Block No.1118 by producing an agreement to sell, said to have been executed by the mother of the complainant for both the parcels of land. As per the say of the complainant, his mother has never executed any such agreement to sell so far as the land of Block No.1117 is concerned. Thus, both the parties are claiming their ownership rights over the agricultural land of Block No.1117. However, none of the sides have produced any cogent piece of evidence to prove their ownership rights over the land of Block No.1117. The only piece of evidence available, on the basis of which, the ownership is being claimed by the applicants, is the xerox copy of the alleged agreement to sell. Neither of the parties have produced the original agreement to sell in support of their respective claims. Therefore, how the said agreement to sell was prepared, whether the signature on the agreement to sell is forged one, or whether the involvement of the applicants was there or not, is the subject matter of investigation.
18. It is worthwhile to state that after registration of the impugned FIR, the applicants approached this Court by way of filing the present application, and a Coordinate Bench of this Court, vide order dated 10.05.2016, protected the applicants. Thereafter, the investigation was proceeded, and during the course of investigation, another document in the form of a letter addressed by the office of the applicants to the GEB has come on record also containing the signature of the mother of the complainant. The same was also sent to the FSL by the investigating officer for getting its opinion whether the signature contained in the said document actually belongs to Page 23 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined the mother of the complainant or not, and as per the opinion of the handwriting expert, the signature upon such document also does not belong to the mother of the complainant.
19. On perusal, it is found out that civil proceedings have also been initiated by the applicants before the civil court for declaration and permanent injunction. However, though such proceedings have been initiated at the instance of the applicants claiming their ownership over the land of Block No.1117, they have not produced the original agreement to sell in the said proceedings. Even, before this Court also, the original agreement to sell has not been produced on record by either of the parties, and in the absence of original agreement to sell, it is difficult for this Court to come to any particular conclusion. However, in my considered opinion, in cases where the ownership right is being claimed, the entire burden of proof lies upon the claimant to produce the cogent and convincing piece of evidence in support of its claim, which in the present case, the applicants have failed to do so. Not only that, it is brought to the notice of this Court by learned advocate Mr. Patel that the complainant has preferred an application before the civil court seeking direction to the applicants to produce the original agreement to sell on record, however, uptil now the same has not been produced by the applicants before the civil court despite the fact that the entire suit proceedings hinges upon the said agreement to sell. Even both the parties have filed an affidavit before this Court specifically stating that the original agreement to sell is not in their custody. Thus, in the opinion of this Court, the mystery whether the original Page 24 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined agreement to sell is lying in whose possession can only be unfolded upon proper investigation being carried out.
20. Another aspect which is also pertinent to note here is that the agreement to sell was executed in the year 1993 with a specific condition that within a period of 18 months, after payment of entire amount of consideration, the sale deed shall be executed, and per the say of the applicants, the entire amount of consideration had been paid by the applicants at the relevant point of time. If this being the situation, then why the applicants have kept mum and not initiated any proceedings for specific performance of contract for this many years, and all of a sudden, after the complainant side applied for title clearance, woke up from the slumber and raised the objection by producing the copy of the agreement to sell claiming their ownership over the land of Block No.1117 and that too, on the basis of a xerox copy of the agreement to sell and not the original one. Even no documentary evidence has been produced by the applicants to indicate that during the interregnum period, they have made any attempt by addressing a letter or issuing any notice to the complainant for getting the sale deed executed. If, at the relevant point of time, the agreement to sell was executed for both the parcels of land, then the original must have been in the custody of the applicants, as it is in the wisdom of any prudent and vigilant person that at the time of execution of the registered sale deed, there is always a need of agreement to sell, if any in existence and, therefore, it is for the vendee who wants to get Page 25 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined the sale deed executed to keep such an important document in his safe custody till the execution of the sale deed.
21. Furthermore, the disputed land is an agricultural land and the applicants are not the agriculturists. Assuming for a moment, for the sake of argument, that an agreement to sell was executed in favour of the applicants in respect of the agricultural land of Block No.1117, then again the question arises whether any agreement to sell for an agricultural land executed in favour of a non-agriculturists is legally enforceable in the eye of law?. Every State has its own land laws which can vary. As per the Gujarat Tenancy and Agricultural Lands Act, a non-farmer cannot directly purchase an agricultural land unless he is an agriculturist or having an agricultural land in his name or any of its relative is a farmer. As per the said Act, even though if someone who is a non- farmer wants to purchase an agricultural land, then first he or she has to purchase the agricultural land in the name of his or her relative and then get it transferred in his or her name as his or her legacy. Further, non-farmers can acquire the agricultural land for certain specific purposes, such as setting up agro-based industries or for educational or research purposes, but the same also requires special permission from the state government or relevant authorities. However, in the present case, no documentary evidence has been produced on record by the applicants indicating that they have ever applied for obtaining such permission from any competent authority. Thus, non-production of any such document indicating the permission being obtained by the applicants before execution Page 26 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined of the agreement to sell raises doubt about the validity of the agreement to sell itself. These are all moot questions of law which can be dealt with in detail in the light of the land laws prevailing as on date in the suit proceedings filed by the applicants and merely on the basis of the fact that the civil suit is pending before the competent civil court, the criminal proceedings cannot be quashed.
Tenets of law:
22. It is well settled that in certain cases very same set of facts may give rise to civil as well as criminal proceedings and even if a civil remedy is availed by any of the parties, either of them are not precluded from setting in motion the proceedings in the criminal law. The remedies are not internally exclusive but co-extensive and essentially defer in their content, scope and import. [see (2020) 4 SCC 552 K. Jagdish Vs. Udaya Kumar G.S.].
23. In the case of Vijay Singh M. Krishnan v. Vijay Singh & Anr. Criminal Appeal No. 1028 of 2001, decided on 11.10.2001, the Supreme Court has observed that accepting such a general proposition that the transaction between the parties are of a civil nature and the criminal court cannot proceed with the complaint because the factum of document being forged was pending in the civil court would be against the provision of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. In the case on hand, the allegations are regarding the forging of the signature of the mother of the Page 27 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined complainant on the agreement to sell to grab the parcel of land of an unsold property. The criminal proceedings cannot be quashed only because the applicants have initiated a civil proceedings with respect to the subject land.
24. The Apex Court in the case of Dinesh Bhai Chandu Bhai Patel Vs. State of Gujarat and Anr., (2018) 3 SCC 104 has considered the question that when a registration of the FIR is challenged seeking its quashing by the accused under Article 226 of the Constitution or Section 482 of the Code, then what are the powers of the High Court and how the High Court should deal with such question. The Supreme Court after referring to the principle laid down in State of West Bengal and Ors. Vs. Swapan Kumar and Ors. (AIR 1982 SC 949) has held thus :-
"26. This Court in State of West Bengal & Ors. vs. Swapan Kumar Guha & Ors. (AIR 1982 SC 949) had the occasion to deal with this issue. Y.V. Chandrachud, the learned Chief Justice speaking for Three Judge Bench laid down the following principle:
21..... the condition precedent to the commencement of investigation under S.157 of the Code is that the F.I.R.
must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences.
Page 28 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined
66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence.
29. The High Court, in our view, failed to see the extent of its jurisdiction, which it possess to exercise while examining the legality of any FIR complaining commission of several cognizable offences by accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate Court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof.
30. At this stage, the High Court could not appreciate the evidence n or could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the Complainants and visa-se-versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material."
25. In the case of Mahesh Choudhary Vs. State of Rajasthan, reported in (2009) 4 SCC 439 the Supreme Court held thus :-
"12. It is also well settled that save and except very exceptional circumstances, the court would not look to any document relied upon by the accused in support of Page 29 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined his defence. Although allegations contained in the complaint petition may disclose a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior courts are also required to consider as to whether the allegations made in the FIR or Complaint Petition fulfill the ingredients of the offences alleged against the accused."
26. From the settled principles of law as enunciated in the above referred decisions, it emerges that the criminal prosecution cannot be quashed merely on the ground that the civil proceedings are pending.
27. In the case of State of Orissa and another Vs. Saroj Kumar Sahoo, reported in (2005) 13 SCC 540, the Supreme Court has observed that the inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material.
28. Indisputably, the applicants said to have purchased two adjoining parcels of lands from the mother of the complainant, for which, agreement to sell was executed by the mother of the complainant in favour of the applicants. Thereafter, a registered sale deed also came to be executed by the mother of the complainant in favour of one of the applicants in respect Page 30 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined of one parcel of land which is a non-agricultural land, which is not in dispute. However, specific allegations are made against the applicants that they have forged the signature of the mother of the complainant and created a false and fabricated agreement to sell so far as the other parcel of land is concerned knowing fully well that the said land is an agricultural land and they are not the agriculturists. Looking to the allegations made in the FIR registered against the applicants, clearly a case of cognizable offence is made out.
Applicability of the decisions relied upon by the learned advocate for the applicants:
29. Learned senior advocate Mr. Oza relies upon the decision in the case of Kishan Singh (supra), whereby the Supreme Court has upheld the decision of the Punjab and Haryana High Court which quashed and set aside the FIR filed against the accused therein by holding that there is an unexplained inordinate delay in registering the FIR. The Court further observed that the action on the part of the father of the appellant therein would not be bona fide and the criminal proceedings initiated by him against the respondents therein amount to an abuse of the process of law.
The aforesaid decision, in my opinion, is of no avail to the applicants as the facts and circumstances of that case are quite distinct and different than the facts of the present case. In that case, the civil suit had already been decided and adjudicated by the civil court in favour of the respondents therein and on the basis of the outcome of the said civil Page 31 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined proceedings, the criminal proceedings had been quashed. Here in the case on hand, the civil suit is still pending for adjudication. So far as the delay part is concerned, the complainant has filed a detailed affidavit dealing with the allegation of delay in registering the FIR wherein he has stated that for the first time, in the year 2007, when the applicants filed the objections, the complainant came to know about the agreement to sell being executed by his mother in favour of the applicants for the subject land. As soon as he came to know about such fact, as his mother was alive at that time, he inquired from her about the same whereupon his mother denied any agreement to sell being executed by her in favour of the applicants in respect of the subject land. Thereafter, the complainant also undertook other procedures and also addressed a communication to the applicants. The complainant also made an applications in the form of complaint before the various police authorities, however, as no action was taken by any of the authorities, the complainant approached this Court seeking direction to the concerned police authority to register the complaint. Thereafter, pursuant to the direction issued by this Court to register the complaint, the impugned FIR came to be lodged. Therefore, it can be said that the delay occurred in filing the FIR is not intentional.
30. Another decision upon which reliance is being placed by the learned senior advocate Mr. Oza is the decision of this Court in the case of Madhubhai Virjibhai Patel (supra), whereby a Single Bench of this Court quashed and set aside the FIR impugned therein. However, in my opinion, in the said case Page 32 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined also, there is an element of a civil proceedings initiated by the applicant therein much prior to the filing of the FIR for specific performance of contract. In the said case, an agreement to sell in favour of the applicant therein somewhere in the year 1989, and as the complainant and the other co-shares did not execute the sale deed as per the terms of the agreement to sell, the applicant preferred the civil suit in the court of Civil Judge for specific performance of contract and for refund of the advance money wherein an ex-parte interim injunction was granted in favour of the applicant. Subsequently, the complainant therein along with the co-sharers appeared and filed an application for vacating the interim injunction which was rejected by the civil court and confirmed the interim injunction. Herein in the case on hand, the situation is altogether different. In the case on hand, one of the main contentions raised by the learned advocate for the complainant is that the applicants herein have not filed any suit for specific performance of contract, whereas in the case relied upon by the learned advocate Mr. Oza, the applicant of that case had immediately approached the civil court for specific performance of contract and ultimately obtained an interim injunction. Therefore, the said decision is also of no avail to the applicants as the facts of both the case are quite contrary to each other.
31. Another decision of this Court relied upon by the learned advocate for the applicants in the case of Manindersingh Jolly (supra) would also not come to the rescue of the applicants as in the said case also, the civil suit has already been decided Page 33 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined and adjudicated by the civil court, whereas in the present case, the civil suit filed by the applicants is yet to be adjudicated. So far as the delay part is concerned, as stated above, the delay has been sufficiently explained by the complainant in the affidavit filed by him.
32. So far as the decision in the case of Khandubhai Poonambhai Tandel (supra) is concerned, in the said case, the criminal proceedings have been quashed on the ground that civil remedy is always available with the complainant for redressal of his grievance if the transaction in question is of a civil nature. However, in the present case, such remedy has already been availed and pending for adjudication, not by the respondent-complainant but by the applicants and, therefore, it can be said that the facts of both the cases are quite contrary to each other.
33. The decision in the case of Jnofer Bhujwala (supra) would also not come to the rescue of the applicants. In the said case, the criminal proceedings have been quashed on the ground that the civil proceedings are pending before the civil court. However, as held in catena of decisions, some of which referred to herein above, mere pendency of the civil proceedings cannot be made a ground to quash the criminal proceedings.
34. It is further well settled by catena of decisions that slight change in facts would make a world of difference in applying ratio as a precedent and, therefore, each case is depending upon the individual facts and, therefore, the proposition of law Page 34 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined laid down is to be viewed in the context of facts of that case and if there is any similarity, the same would be made applicable. Here, in the case on hand, no such similarity is found and, therefore, I am of the opinion that the decisions cited by the learned senior advocate for the applicants are not applicable.
Conclusion:
35. After verifying and considering all the materials available on record, prima facie, it seems that during the course of investigation, the Investigating Officer has collected certain documents, which were forwarded to the FSL for the purpose of getting handwriting expert's opinion, and as per the report submitted by the expert, the signature upon the documents are found to be forged one. It is also found out from the record that the documents upon which reliance is being placed by the applicants as well as by the complainant, and on the strength of the said document, criminal complaint as well as civil suit is filed by the respective parties before the competent courts, is not traceable from both the parties and the said fact has been stated on oath by both the parties. In short, the original document is not in the custody of both the parties. Admittedly, a photocopy of the agreement to sell is produced on record by the applicants, which was obviously taken out from the original one. Therefore, it can be presumed that the original agreement to sell was there in the custody of the applicants, however, the same has yet not come on surface. Therefore, for the purpose of bringing correct facts on record as also for the purpose of initiating appropriate proceedings, the said document is Page 35 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined required to be brought on record for the purpose of sending it to the FSL to verify whether the signature upon the said document is forged one or not. Prima facie, it is the case of the complainant that the signature upon the said document is not purportedly made by his mother and the said fact also corroborates by the opinion of the government approved private handwriting expert obtained by the complainant. Under these circumstances, I am of the opinion that thorough investigation is required to be carried out for the purpose of tracing out the original agreement to sell. Therefore, the investigating officer is directed to proceed further with the investigation and find out all the relevant materials pertaining to the present case including the original agreement to sell, and after conclusion of the investigation, whatever may be the outcome, file an appropriate report in that regard before the competent court.
36. Thus, in view of the discussion made herein above, I am of the considered opinion that no case is made out warranting quashment of the FIR.
37. In the result, the present application fails and is hereby dismissed. Notice stands discharged. Interim relief, if any, also stands vacated.
(DIVYESH A. JOSHI,J) FURTHER ORDER After the judgement is pronounced in the open Court, Mr. Yatin Oza, the learned senior counsel appearing for the Page 36 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024 NEUTRAL CITATION R/CR.MA/10843/2016 CAV JUDGMENT DATED: 20/06/2024 undefined applicants made a request to stay the judgement from its operation for a period of six weeks to enable the applicants to challenge the same before the Hon'ble Apex Court.
The request is acceded to. The operation, implementation and execution of this judgment is stayed for a period of six weeks, as prayed for.
(DIVYESH A. JOSHI,J) VAHID Page 37 of 37 Downloaded on : Fri Jun 21 22:23:50 IST 2024