Gujarat High Court
Vikram Ashokbhai Solanki vs State Of Gujarat on 4 September, 2023
NEUTRAL CITATION
R/CR.MA/18750/2015 ORDER DATED: 04/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 18750 of 2015
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VIKRAM ASHOKBHAI SOLANKI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR Y J PATEL(3985) for the Applicant(s) No. 1
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
NOTICE SERVED THRU CONCERNED POLICE STN for the Respondent(s)
No. 2
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 04/09/2023
ORAL ORDER
1. The present application is filed with the following prayers:
"23(A) YOUR LORDSHIPS may be pleased to quash and set aside the criminal complaint being C.R.No.I-167 of 2015 registered at Kuvadava Police Station, Rajkot on 22.09.2015 filed by respondent no.2 against the present applicant (at ANNEXURE-A hereto);
(B) During pendency and final disposal of the present application, YOUR LORDSHIPS may be pleased to stay further investigation of criminal complaint being C.R.No.I-167 of 2015 registered at Kuvadava Police Station, Rajkot on 22.09.2015 filed by respondent No.2 against the present Page 1 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023 NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined applicant. (at ANNEXURE-A hereto);
(C) xxxxx"
2. The brief facts as averred in the application are as under:
2.1 That the impugned complaint is filed on 22.9.2015 for the alleged offences of 3.1.2013 stating that he was holding one agricultural land bearing revenue survey no.44/1 paiki 1, 1.61.88 hectare and his wife was also holding one agricultural land bearing revenue survey no.44/1 paiki 2 1.34.56 hectare; that so far as the land bearing revenue survey no.44/1 paiki 1, 1.61.88 hectare is concerned the land was already sold to person namely Chintan Prashantbhai Mehta as well as Prashantbhai Manshukhbhai Mehta by way of registered sale deed dated 12.5.2015 and it was also registered; that so far as the land bearing revenue survey no.44/1 paiki 2 1.34.56 hectare is concerned, which belonged to his wife namely Muktaben Vastabhai Pansuriya already sold to person namely Chintan Prashantbhai Mehta as well as Prashantbhai Manshukhbhai Mehta by way of registered sale deed and it was also registered. It is further alleged that when the original complainant applied before the Mamlatdar for certification of entry in revenue record, at that Page 2 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023 NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined time, the applicant filed objection pursuant to agreement to sale and during the proceeding Mamlatdar intimated to complainant about the agreement to sale and when the complainant came to know that agreement to sale is bogus, false and fabricated as he has never signed the same. It is this complaint which is prayed to be quashed by way of this application.
3. Heard learned advocate Mr.Bharda for the applicant and learned APP for respodnent-state. Though served, none appears for the respondent no.2-complainant. The matter is taken up for final hearing.
3.1 Learned advocate Mr.Bharda submitted that the applicant is falsely implicated in the offence which is registered under the provisions of Sections 465, 467, 468 and 471 of the IPC; that considering the various judgments, more particularly, the judgment in the case of Mohammed Ibrahim and Others V/s State of Bihar and Others reported in reported in 2010(1) GLH 184, the contents of FIR are not satisfied. He has further submitted that the applicant has filed the complaint which is false, frivolous, bogus and also vexatious as no ingredients under Sections 465, 46, 468 and 471 of IPC are satisfied on bare perusal of the complaint.
3.2 He has, therefore, submitted that in view of the Page 3 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023 NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined judgment in the case of State of Haryana V/s Bhajanlal & Ors. Reported in AIR 1992 SC 604 and considering the aspect that the complainant has further transferred the land in question to third party, this Court is required to exercise powers under Section 482 of the Code to prevent abuse of process of law and also to prevent undue harassment to the applicant.
4. Per contra, learned APP Mr.Dave has submitted that prima facie the case is made out against the applicant.
He has submitted, relying on the report received from the Police Inspector, that as per the report, during the course of investigation, such document is sent for the opinion of the handwriting expert from the FSL Gandhinagar and from the said report, it transpires that the handwriting is of the complainant herself on the said document. Moreover, from the report it transpires that at present the land in question is sold by the complainant to third party Chintan Prashantbhai Mehta as well as Prashantbhai Manshukhbhai Mehta, by way of registered sale deed dated 12.5.2015 and the possession of the land in question is now with Prashantbhai. He has further drawn my attention from the report that the present applicant is not having any criminal history or antecedents and therefore he has submitted that this Court may pass appropriate order after considering the material on record.
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5. Sections 465, 467, 468 and 471 of Indian Penal Code, which are invoked in the impugned complaint read as under:
"465. Punishment for forgery.--Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
467. Forgery of valuable security, will, etc.--Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [i][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.
468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the 1[document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term Page 5 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023 NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged 1[document or electronic record].--Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record]. "
6. I have considered the rival submissions and I have also perused the material on record. Prima facie the dispute is essentially in the nature of transaction regarding the land in question which can be considered as a dispute of civil nature. Moreover, considering the nature of allegation and considering the material on the record, more particularly, report of investigating officer which indicates that even as per the FSL report, the handwriting of the complainant is found on the alleged documents, none of the ingredients of the sections invoked in the impugned complaint are made out.
7. In the judgment cited at the bar by learned advocate Mr.Bharda in the case of Mohammed Ibrahim and Others (supra), it is held in paragraphs 9 to 17 and 26 to 30 as under:
Page 6 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined "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 a 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.Page 7 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023
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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;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any digital signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly.--Who dishonestly or Page 8 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023 NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
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 sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it Page 9 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023 NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined did not belong to him), can be said to have made and executed false documents, in collusion with the other 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 fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
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.
15. 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 Page 10 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023 NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined document by practicing deception, or from a person not in control of his senses.
16. 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. 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 bonafide 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 have been made with Page 11 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023 NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined 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.
26. The Penal Code however defines `fraudulently', an adjective form of the word `fraud', in section 25, as follows :
"25. Fraudulently - "A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".
27. The term "fraudulently" is mostly used with the term "dishonestly" which is defined in section 24 as follows :
Page 12 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined " 24. Dishonestly - Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly".
28. To `defraud' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:
(i) Fraudulent removal or concealment of property (sec.206, 421, 424)
(ii) Fraudulent claim to property to prevent seizure (sec.
207).
(iii) Fraudulent suffering or obtaining a decree (sec. 208 and
210)
(iv) Fraudulent possession/delivery of counterfeit coin (sec.239, 240, 242 and 243).
(v) Fraudulent alteration/diminishing weight of coin (sec. 246 to 253)
(vi) Fraudulent acts relating to stamps (sec. 261-261)
(vii) Fraudulent use of false instruments/weight/measure (sec.264 to 266)
(viii) Cheating (sec. 415 to 420) Page 13 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023 NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined
(ix) Fraudulent prevention of debt being available to creditors (sec. 422).
(x) Fraudulent execution of deed of transfer containing false statement of consideration (sec. 423).
(xi) Forgery making or executing a false document (sec. 463 to 471 and 474)
(xii) Fraudulent cancellation/destruction of valuable security etc.(sec. 477)
(xiii) Fraudulently going through marriage ceremony (sec.496). It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law.
Section 504 of Penal Code
29. The allegations in the complaint do not also made out the ingredients of an offence under section 504 of the Penal Code. Section 504 refers to intentional insult with intent to provoke breach of peace. The allegation in the complainant is that when he enquired with accused 1 and 2 about the sale deeds, they asserted that they will obtain possession of land under the sale deeds and he can do whatever he wants. The statement attributed to appellants 1 and 2, it cannot be said to amount to an "insult with intent to Page 14 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023 NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined provoke breach of peace". The statement attributed to accused, even if it was true, was merely a statement referring to the consequence of execution of the sale deeds by first appellant in favour of the second appellant.
30. The averments in the complaint if assumed to be true, do not make out any offence under sections 420, 467, 471 and 504 of the Code, but may technically show the ingredients of offences of wrongful restraint under section 341 and causing hurt under section 323 of IPC."
8. Considering the above settled position of law and considering the fact that now the complainant has further transferred the land in question to third party who is now in possession, the complainant has not received any financial loss or the complainant has not lost the land due to such transaction. Therefore, considering the totality of the facts and circumstances and the material available on the record, no fruitful purpose will be served to continue the proceedings further and it amounts to abuse of process of law.
9. In the case of Bhajanlal & Ors. (supra), the Hon'ble Supreme Court has settled the guidelines when the Court can exercise powers under Section 482 of the Code, the relevant paragraph reads as under:
Page 15 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Page 16 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023 NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under sec.156(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
Page 17 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023NEUTRAL CITATION R/CR.MA/18750/2015 ORDER DATED: 04/09/2023 undefined (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
10. In view of the above discussion, this application is allowed. The impugned criminal complaint being C.R.No.I-167 of 2015 registered at Kuvadava Police Station, Rajkot on 22.09.2015 is hereby quashed and set aside. It is open for the applicant to make appropriate application for getting original documents which are submitted before the concerned investigating officer/Court by the applicant. Direct service is permitted.
(SANDEEP N. BHATT,J) SRILATHA Page 18 of 18 Downloaded on : Sat Sep 16 15:59:03 IST 2023