Gujarat High Court
Gulabbhai Manibhai Desai & 2 vs State Of Gujarat & on 17 February, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/13221/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 13221 of 2015
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GULABBHAI MANIBHAI DESAI & 2....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR NANDISH CHUDGAR WITH MR DIVYESH D BAIS, ADVOCATES FOR NANAVATI
ASSOCIATES, ADVOCATE for the Applicant(s) No. 1 - 3
MR ADIL R MIRZA, ADVOCATE for the Respondent(s) No. 2
NOTICE NOT RECD BACK for the Respondent(s) No. 2
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 17/02/2017
ORAL ORDER
1 By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants - original accused persons seek to invoke the inherent powers of this Court, praying for quashing of the First Information Report bearing IC.R. No.40 of 2014 registered on 15th March 2014 before the Valsad (Rural) Police Station for the offence punishable under Sections 465, 467, 471 read with 114 of the Indian Penal Code.
2 I take notice of the fact that during the pendency of this application, the first informant has passed away. However, Mr. Mirza, the learned counsel, who has entered appearance on behalf of the respondent No.2, has assisted the Court.
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3 The case of the prosecution may be summarised as under:
3.1 The dispute pertains to a parcel of land i.e. the ancestral property
bearing block No.67, old survey No.365, new survey No.284, admeasuring 38 Gunthas situated at village: Bhadeli, District: Valsad. It is the case of the first informant that the land in question was running in the name of his great grand father, namely, Durlabhji Nagarji Desai. It is his case that the land was barren and no one was cultivating the said land. The allegations are that in the year 2001, a family pedigree was prepared in the form of a panchnama, and the same was taken on record by the TalaticumMantri of the Bhadeli Gram Panchayat. The family pedigree shown in the document in question, which, according to the prosecution, is a false document within the meaning of Section 464 of the Indian Penal Code is as under:
FAMILY PEDIGREE Naranbhai Dajibhai Nagarbhai Paragbhai Durlabhbhai Gulabbhai Bhimabhai Lallubhai Khandubhai Daulatbhai Dinkarbhai Manibhai Mahendrabhai Gulabbhai Ramchandra Dinkar Pradhyum
3.2 It is alleged in the F.I.R. that in the family pedigree, Dinkarbhai i.e. the father of the first informant has been shown as having no issues. The first informant happened to be the son of Dinkarbhai and his name Page 2 of 11 HC-NIC Page 2 of 11 Created On Sun Feb 19 03:56:44 IST 2017 R/CR.MA/13221/2015 ORDER should have been shown in the family pedigree. According to the first informant, this was done by the applicants herein only with a view to deprive the first informant of his share in the property in question. The family pedigree came to be prepared in the year 2001. After almost a period of ten years, the first informant learnt about the said panchnama drawn by the TalaticumMantri. The first thing he did was to file a Regular Civil Suit No.89 of 2011 before the Civil Judge (J.D.), Valsad. After filing of the regular civil suit in the year 2011 for a declaration, he though fit to file the F.I.R. after a period of three years i.e. in the year 2014. It appears that in the year 2011, the first informant had lodged a complaint in writing addressed to the concerned police station in this regard. At that point of time, the police did not deem fit to register the F.I.R. It also appears that some settlement was arrived at inter se between the parties. However, the settlement could not take effect. It also appears that a statement was made by the first informant before the police reduced into writing that the civil suit might take a long time before it is adjudicated and decided, and therefore, it is necessary for the police to register the F.I.R. In such circumstances, ultimately, in the year 2014, the F.I.R. came to be registered.
4 Having regard to the nature of the dispute, the following order was passed by a Coordinate Bench dated 21st July 2015:
"Heard Mr.Nandish Chudgar, learned advocate for Nanavati Associates, learned counsel for the applicants.
It is submitted that by filing the impugned FIR, respondent No.2 Complainant has sought to give a criminal colour to a civil dispute. A Civil Suit has been filed by respondent No.2 regarding the same subject matter and cause for which the FIR is filed, namely, an entry mutated in the revenue records on the basis of an allegedly false Pedhinama. It is submitted that the person in whose favour the entry has been made has not been made an accused in the FIR. However, the applicants who are 82, 79 and 72 years of age respectively, have been made accused.
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It is further submitted that in the past several attempts were made to compromise the matter between the parties. However, as that did not succeed, the first informant has filed the FIR, as is stated by him in the FIR itself, and his statement dated 29.10.2013. Thus, it is clear that a civil dispute has been turned into the criminal one in order to pressurize the applicants.
It is further submitted that in the past two similar complaints were filed by respondent No.2, which were disposed of as no offences were made out. That, a CSummary Report has been prepared in respect of the present impugned FIR, but the same has not been filed by the Police authorities. It is submitted that the allegations pertain to the year 2001 and the FIR has been filed in the year 2015, after an inordinate delay, which shows that civil proceedings are being sought to be converted into criminal proceedings.
In support of the above submissions, reliance has been placed upon the following judgments:
i. Sawarni (Smt) Vs. Inder Kaur (Smt) and others, reported in (1996) 6 SCC 223.
ii. Union of India and others Vs. Vasavi Cooperative Housing Society Limited and others, reported in (2014) 2 SCC 269.
iii.Order dated 15.02.2012, passed by this Court in Special Criminal Application No.2282/2011.
iv.Order dated 07.02.2013, passed by the High Court of Judicature for Rajasthan at Jodhpur, in S.B.Criminal Misc. Petition No.2476/2012.
v. Mohammed Ibrahim and others Vs. State of Bihar and another, reported in (2009) 8 SCC 751.
Mr.L.B.Dabhi, learned Additional Public Prosecutor for respondent No.1 has submitted that though there may be civil proceedings pending in the Civil Court against the applicants, however, the allegations regarding fabrication of a false Pedhinama is an offence which has to be investigated by the Police authorities. It is submitted that a reading of the FIR shows that allegations have been made against the present applicants which require investigation.
Having heard the learned counsel for the respective parties, it transpires that the learned advocate for the applicants has made out a good primafacie case for the grant of interim relief.
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Hence, issue Notice returnable on 24.08.2015.
Mr.L.B.Dabhi, learned Additional Public Prosecutor waives service of notice for respondent No.1.
Adinterim relief in terms of paragraph22(B) is granted, qua the applicants, till then.
In addition to the normal mode of service, Direct Service for respondent No.2 through concerned Police Station, is also permitted."
5 Thereafter, on 7th February 2017, the following order was passed:
"RULE returnable on 17th February 2017. The learned APP waives service of notice of rule for and on behalf of the respondent no.1 State of Gujarat.
I am told that the respondent no.2 original first informant has passed away. Prima facie, I am of the view that the case is one of a civil dispute. Prima facie, I am also of the view that this is not a case of forgery. I am told that at the end of the investigation the Investigating Officer thought fit to file a C summary report. However, before filing such C summary report in the court concerned, he thought fit to seek approval from the higher authority. The learned APP has no idea what has happened thereafter.
The learned APP shall take appropriate instructions and make a statement, whether the Investigating Officer now intends to file a C summary report or not ?
Interim order to continue.
Notify the matter on top of the board."
6 The applicants are here before me for quashing of the F.I.R.
7 Mr. Chudgar, the learned counsel appearing for the applicants would submit that even if the entire case of the first informant is accepted or believed to be true, none of the ingredients to constitute the offence of forgery are spelt out. He submits that a pure civil dispute inter Page 5 of 11 HC-NIC Page 5 of 11 Created On Sun Feb 19 03:56:44 IST 2017 R/CR.MA/13221/2015 ORDER se between the family members is sought to be given a colour of criminal offence. The civil suit is pending before the Court concerned. The Civil Court is yet to determine the right, title and interest of the first informant (now the deceased), if any, in the suit property.
8 In such circumstances, Mr. Chudgar prays that there being merit in this application, the same be allowed and the F.I.R. be quashed.
9 On the other hand, this application has been vehemently opposed by Ms. Pathak, the learned Additional Public Prosecutor appearing for the State and Mr. Mirza, the learned counsel appearing for the first informant.
10 Both the learned counsel would submit that the plain reading of the F.I.R., prima facie, discloses commission of a cognizable offence. The applicants knowing fully well that Dinkarbhai had a son i.e. the first informant, his name was deliberately not shown in the family pedigree. The intention of the applicants was to deprive the first informant of his share in the suit property. According to both the learned counsel, the document in the form of the 'Pedhinama' (family pedigree) is a false document because it contains an incorrect statement.
11 It is submitted that the police should be permitted to complete the investigation in accordance with law.
12 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the case of forgery as allged could be said to have been made out.
13 The document in question, which, according to the prosecution, is
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a false document is a 'Pedhinama' i.e. the family pedigree in the form of a panchnama drawn by the TalaticumMatri. The law in this regard is no longer res integra. A mere wrong statement or wrong information furnished in a document will not constitute forgery within the meaning of Section 463 of the Indian Penal Code so as to render a document a false document within the meaning of Section 464 of the Indian Penal Code. The position of law has been succinctly explained by the Supreme Court in the case of Mohammed Ibrahim and others vs. State of Bihar and another [(2009) SCC 751]. I may quote the relevant paras as under:
"9 Let us first consider whether the complaint averments even assuming to be true make out the ingredients of the offences punishable either under Section 467 or Section 471 of Penal Code.
10 Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be as forged document, shall be punished in the same manner as if he had forged such document.
11 Section 470 defines a forged document as a false document made by forgery. The term "forgery" used in these two sections is defined in Section 463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
12 Section 464 defining "making a false document" is extracted below:
"464. Making a false document. A person is said to make a false document or false electronic record First. Who dishonestly or fraudulently
(a) makes, signs, seals or executes a document or part of a document;Page 7 of 11
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(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, With the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly. Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly. Who dishonestly or fraudulently causes any person to sign, seal, executed or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1 A man's signature of his own name may amount to forgery.
Explanation 2 The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
(Note : The words 'digital signature', wherever it occurs were substituted by the words 'electronic signature' by Amendment Act 10 of 2009)".
13 The condition precedent for an offence under Section 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other Page 8 of 11 HC-NIC Page 8 of 11 Created On Sun Feb 19 03:56:44 IST 2017 R/CR.MA/13221/2015 ORDER accused.
14 An analysis of Section 464 of Penal Code shows that it divides false documents into three categories :
1. The first is where a person dishonestly or frudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or by any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or
(c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a 'false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
15 The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of 'false documents'. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant's land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category.
16 There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of 'false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should Page 9 of 11 HC-NIC Page 9 of 11 Created On Sun Feb 19 03:56:44 IST 2017 R/CR.MA/13221/2015 ORDER have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17 When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
14 Thus, in view of the principles explained by the Supreme Court, it cannot be said that the 'Pedhinama' is a false document within the meaning of Section 464 of the Indian Penal Code so as to constitute the offence punishable under Sections 467, 468, 471 of the Indian Penal Code, as alleged.
15 I am of the view that the picture would be clear only after the civil suit is finally adjudicated and decided. Essentially, the dispute between the parties is one with regard to a share in the property.
16 In the result, this application is allowed. The First Information Report bearing IC.R. No.40 of 2014 registered before the Valsad (Rural) Police Station for the offence punishable under Sections 465, 467, 471 read with 114 of the Indian Penal Code is hereby quashed. Rule is made absolute. Direct service is permitted.
17 Let me clarify that that the quashing of the F.I.R. will have no bearing so far as the civil proceedings are concerned. The civil suit shall be adjudicated and decided on its own merits on the basis of the evidence that may be led by the parties without being influenced, in any manner, by any of the observations made in this order.
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