Gujarat High Court
Priteshkumar Rasikbhai Bhakt vs State Of Gujarat on 2 July, 2018
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
R/CR.MA/15515/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 15515 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
PRITESHKUMAR RASIKBHAI BHAKT
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR ZUBIN F BHARDA(159) for the PETITIONER(s) No. 1,2,3
MR NK MAJMUDAR(430) for the RESPONDENT(s) No. 2
MR DM DEVNANI, APP (2) for the RESPONDENT(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 02/07/2018
ORAL JUDGMENT
1. This application is filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code' for the sake of brevity) for quashing and setting aside Page 1 of 13 R/CR.MA/15515/2011 JUDGMENT the FIR being C.R.No.I-67 of 2011 registered with Vyara police station and proceedings filed pursuant thereto.
2. Heard learned advocate Mr.Zubin Bharda for the applicant, learned advocate Mr.N.K.Majmudar for the respondent no.2- complainant and learned Additional Public Prosecutor Mr.Devnani for the respondent-State.
3. Learned advocate Mr.Bharda has referred to the allegations made in the impugned FIR, copy of which is produced at page 23 of the compilation. The said FIR is filed for the offences punishable under Sections 467, 468, 471, 120-B and 114 of Indian Penal Code. The impugned FIR is filed on 6.6.2011. It has been mainly alleged in the said FIR by the respondent no.2- complainant that land bearing block no.92, 93, 109/1 situated at Mouje Meghpur, Taluka Vyara, District Tapi was in the name of accused no.2 and the land bearing block no.108 situated at Mouje Meghpur Ta.Vyara, was in the name of accused no.3. The said aspect was informed to him by accused nos.1 and 3. It is also stated by concerned accused that the title of the said land is clear. The complainant therefore purchased the land in question by registered sale deed by payment of consideration on 15.4.2009 and Page 2 of 13 R/CR.MA/15515/2011 JUDGMENT 15.6.2009 respectively and thereby he became the owner of the land in question. It is further stated that after the execution of the sale deed, it was revealed that the accused have created the charge on the land in question and thereafter accused nos.2 and 3 executed the power of attorney in favour of accused no.1. The accused no.1, on the basis of the said power of attorney, executed agreement to sell on 29.1.2010. The same was registered and thereby accused have created forged documents and committed the offences punishable under Sections 467, 468, 471, 120-B and 114 of Indian Penal Code. The complainant has also referred to the pendency of civil and RTS proceedings between the parties.
4. Learned advocate Mr.Bharda thereafter submitted that the ingredients of the offences are not made out as the accused have not created any forged documents as alleged. In support of the said contention, learned advocate has referred to the documentary evidence produced along with the copy of the application. Learned advocate Mr.Bharda has contended that the agreement to sell was executed by accused no.1 as the power of attorney holder in favour of one Bharatbhai Manubhai Vadodaria on 29.1.2010.
However, thereafter immediately, the said
agreement to sell came to be cancelled on
Page 3 of 13
R/CR.MA/15515/2011 JUDGMENT
18.4.2011. It is further pointed out that before the agreement to sell was executed in favour of Mr.Vadodaria, another agreement to sell was executed by the accused in favour of one Dhirubhai Haribhai Mer and Varshaben Manojsinh Parmar in the year 2008. However, the said agreement to sell was also cancelled on 31.1.2010. In the said document, the complainant Manishbhai Arvindbhai Bhakt has also signed as witness. Learned advocate has referred to all the documents produced on record.
5. Learned advocate Mr.Bharda thereafter submits that before the registration of the aforesaid FIR, the accused Jitinbhai Mohanbhai Bhakt and Diptikaben Jitinbhai Bhakt, through their power of attorney Priteshkumar Rasikbhai Bhakt, have filed Special Civil Suit No.65 of 2010 and 66 of 2010 before the court of Principal Senior Civil Judge, Bardoli against the complainant for cancellation of registered sale deed executed in favour of the complainant and after filing of the said civil proceedings and even revenue proceedings, the impugned FIR came to be filed with a view to pressurize the applicants-accused so that the applicants may withdraw the civil proceedings filed against the complainant. He, therefore, contended that the impugned FIR is nothing but a gross abuse of Page 4 of 13 R/CR.MA/15515/2011 JUDGMENT process of the Court and therefore this Court may quash and set aside the impugned FIR.
6. Learned advocate Mr.Bharda has placed reliance on the decisions rendered by the Hon'ble Supreme Court in the case of Mohammed Ibrahim and others v/s State of Bihar and Another, reported in (2009)8 SCC 751. Learned advocate has also placed reliance upon the decision rendered by this Court in the case of Himmatlal Mohanlal Shah V/s State of Gujarat dated 30.3.2010 passed in Criminal Revision Application No.123 of 2003.
7. Relying upon the aforesaid decisions, it is contended that in the present case, looking to the allegations made in the FIR, ingredients of the alleged offences are not made out and therefore this application be allowed by quashing and set aside the impugned FIR.
8. On the other hand, learned advocate Mr.Majmudar appearing for the complainant referred to the allegations made in the impugned FIR and submitted that though the applicants- accused sold the land by registered sale deed to the complainant, they have created charge on the land in question and thereafter accused no.2 and 3 executed power of attorney in favour of the accused no.1 and on the basis of the same, accused no.1 executed registered agreement to Page 5 of 13 R/CR.MA/15515/2011 JUDGMENT sell in favour of one Mr.Vadodaria, thereby the accused have committed the alleged offence. It is submitted that when the ingredients of the alleged offences are made out in the impugned FIR, this Court may not exercise the powers under Section 482 of the Code. He, therefore, urged that this application be dismissed.
9. Learned APP Mr.Devnani has also supported the contentions raised by the learned advocate for the complainant.
10. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the impugned FIR came to be registered on 6.6.2011 for the alleged offences which are committed between 15.4.2009 to 20.10.2009. From the material produced on record, it is revealed that the applicant no.2 and applicant no.3 were the owners of the land in question who had initially executed agreement to sell in the year 2008 in favour of one Dhirubhai and Varshaben. However, thereafter, the accused no.2 and 3 sold the said land in question by registered sale deed in the year 2009 to the complainant and thereafter the agreement to sell which was executed in favour of one Dhirubhai and Varshaben was cancelled on 31.1.2010. In the said document, Page 6 of 13 R/CR.MA/15515/2011 JUDGMENT the complainant has signed as a witness. The said document is produced at paragraph 49 of the compilation.
11. It is further revealed from the record that thereafter the accused nos.2 and 3 executed power of attorney in favour of the accused no.1 and accused no.1, on the basis of the said documents, executed registered agreement to sale in favour of one Bharatbhai on 29.1.2010. However, thereafter, said agreement to sell was also cancelled on 18.4.2011. The said documents are also produced at page nos.61 and 67 of the compilation.
12. The accused no.2 and 3, through their power of attorney holder i.e. accused no.1, have filed Special Civil Suit No.65 of 2010 and 66 of 2010 for cancellation of the registered sale deed executed in favour of the complainant. The said civil proceedings are still pending.
13. In the aforesaid background, if the allegations made in the impugned FIR are carefully examined, it is revealed that the applicant nos.2 and 3 were the owners of the land in question and therefore it cannot be said that while executing the documents in question, they have created any forged documents as alleged in Page 7 of 13 R/CR.MA/15515/2011 JUDGMENT the impugned FIR. Even the agreement to sell which was executed by accused no.1 as the power of attorney holder of accused nos.2 and 3 in favour of Mr.Vadodaria is concerned, the agreement to sell is also cancelled in the year 2010. Therefore, the question in the present application would be whether the accused have committed the offence of forgery as alleged by the complainant or not?
14. To consider the said question, the provision contained in Section 464 of the Indian Penal Code is required to be examined. Section 464 of Indian Penal Code provides as under:
"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, Page 8 of 13 R/CR.MA/15515/2011 JUDGMENT transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.--Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
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]."
15. At this stage, the decision rendered by Page 9 of 13 R/CR.MA/15515/2011 JUDGMENT the Hon'ble Supreme Court in the case of Mohammed Ibrahim (supra) is also required to be considered. The Hon'ble Supreme Court in the said decision has held in paragraphs 16 and 17 as under:
"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 and 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 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 Page 10 of 13 R/CR.MA/15515/2011 JUDGMENT is no forgery, then neither section 467 nor section 471 of the Code are attracted."
16. Similarly, this Court in Criminal Revision Application No.123 of 2003 in the case of Himmatlal Mohanlal Shah (supra), after considering the definition of forgery and the above referred decision of the Hon'ble Supreme Court, observed in paragraph 10, 10.1, 10.2, 10.3 and 11 as under:
"10. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
10.1) The first is where a person dishonestly or fraudulently makes or a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
10.2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful, after it has been made or executed by either himself or any other person.
10.3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind;
or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
Page 11 of 13R/CR.MA/15515/2011 JUDGMENT
11. In short, a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
17. From the aforesaid decisions, it can be said that there is a fundamental difference between the 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.
18. In the facts and circumstances, as discussed hereinabove, it cannot be said that the applicants have forged any document as alleged in the FIR. If there is no forgery as alleged by the complainant, there is no question of committing offences punishable under Sections 467, 468 and 471 of Indian Penal Code as alleged.
19. Thus, ingredients of the alleged offences are not made out in the impugned FIR. Further, the civil proceedings are also pending before the competent civil Court between the parties and after the initiation of the civil Page 12 of 13 R/CR.MA/15515/2011 JUDGMENT proceedings, the impugned FIR has been filed after a period of more than one year.
20. Looking to the over all facts and circumstances of the case, this Court is of the view that the impugned FIR is nothing but a gross abuse of process of the Court and therefore in the interest of justice, the powers under Section 482 of the Code are required to be exercised.
21. Accordingly, this application is allowed. The impugned FIR being C.R.No.I-67 of 2011 registered with Vyara police station and proceedings filed pursuant thereto being Criminal Case No.2942 of 2011 pending before the Court of learned J.M.F.C., Vyara are hereby quashed and set aside. Rule is made absolute.
(VIPUL M. PANCHOLI, J) SRILATHA Page 13 of 13