Gujarat High Court
Parulbhai Kotadawala vs State Of Gujarat & on 10 December, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/1113/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 1113 of 2014
With
CRIMINAL MISC.APPLICATION NO. 1372 of 2014
==========================================================
PARULBHAI KOTADAWALA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR RAJESH K SAVJANI, ADVOCATE for the Applicant(s) No. 1
MR BHARAT K DAVE, ADVOCATE for the Respondent(s) No. 2
MS HARDIKA B DAVE, ADVOCATE for the Respondent(s) No. 2
MR. J.K. SHAH & H.K. PATEL, ADDL. PUBLIC PROSECUTORS for the
Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 10/12/2015
COMON ORAL ORDER
1. Since the prayer in both the captioned applications is to quash the selfsame first information report, those were heard analogously and are being disposed of by this common judgment and order.
2. By these two applications 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 being I-C.R. No.396 of 2013 registered before the Naranpura Police Station for the offence punishable under sections 406, 420, 465, 467, 468, 471 read with section 114 of the Indian Penal Code.
Page 1 of 6
HC-NIC Page 1 of 6 Created On Sat Dec 12 01:57:29 IST 2015
R/CR.MA/1113/2014 ORDER
3. The case of the first informant may be summarized as under:
3.1 The dispute revolves around a parcel of non-agricultural land bearing Survey No.923, situated at Wadaj, Ahmedabad.
The land in question admeasures 3091 sq. mtr. The applicant of Criminal Misc. Application No.1372 of 2014 was the owner of the land. It is the case of the first informant that some portion, out of 3091 sq. mtr, was sold to him by way of a registered sale-deed in the year 2007. It is his case that after the purchase of a portion of the disputed land, he was put in possession.
3.2 It is his case that the remaining portion of the land admeasuring 1658 sq. mtr came to be transferred by the owner by way of a registered sale-deed dated 22 nd April, 2010 in favour of the applicant of Criminal Misc. Application No.1113 of 2014. The applicant of Criminal Misc. Application No.1113 of 2014 is a practicing doctor. It is his case that the very same parcel of land was transferred to two other individuals who are also co-accused in the first information report. In short, It appears that the fear in the mind of the first informant that the title of the portion of the land purchased by him, being in a cloud, he thought fit to approach the police and lodged the first information report. It is not in dispute that the first informant has not preferred any civil suit in this regard. The civil suits filed by other persons have been disposed of in view of some settlement arrived at between the parties. It is the case of the first informant that one suit, out of the two, was disposed of by practicing fraud. To put it in other words, according to him, Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Dec 12 01:57:29 IST 2015 R/CR.MA/1113/2014 ORDER a consent decree was obtained in collusion without impleading the first informant as a party in the suit.
4. I have heard Mr. Y.N. Oza, the learned senior advocate appearing for the applicants, Mr. Bharat Dave, the learned counsel appearing for the original first informant and Mr. J.K. Shah and Mr. H.K. Patel, the learned Additional Public Prosecutors appearing for the State.
5. The following facts are not in dispute;
(i) The applicant of Criminal Misc. Application No.1113 of 2014 purchased land admeasuring 1568 sq. mtr of the ownership of the applicant of the connected matter by a registered sale-deed dated 22nd April, 2010.
(ii) A total sale consideration of Rs.12,50,000/- was paid by way of two cheques to the original owner.
(iii) There are no other allegations against the applicant of Criminal Misc. Application No.1113 of 2014 except collusion with the original owner, i.e., the applicant of the connected application.
6. In the light of the above factual background, two questions fall for my consideration. (i) whether any forgery could be said to have been committed of any document and
(ii) whether any case of cheating is made out.
7. Even if I accept the entire case of the first informant as it is, no case of forgery could be said to have been made out.
Page 3 of 6
HC-NIC Page 3 of 6 Created On Sat Dec 12 01:57:29 IST 2015
R/CR.MA/1113/2014 ORDER
There is not a single document which could be said to be a false document within the meaning of section 464 of the Indian Penal Code. The purchase of the land is by a registered sale- deed. The payment of the sale consideration was by way of cheques. Prima facie, it appears to me that the dispute, as on today, between the applicant of Criminal Misc. Application No.113 of 2014 and the first informant is with regard to the exact portion of the land said to have been purchased by both the parties. To put it in other words, it appears that at the time of purchase, neither the accused herein demarcated the portion of land sold to him nor the first informant demarcated the portion of land sold to him by the owner of the land. This issue could either be resolved amicably or by way of civil suit for partition. At least, for the purpose of resolving this issue, the interference of police is not warranted. Both claim to be in possession of their land, however, as I stated above, the exact location is in dispute.
8. In such circumstances, I have no hesitation in coming to the conclusion that so far as Criminal Misc. Application No.1113 of 2014 is concerned, it deserves to be allowed. Apart from forgery, no case of any criminal breach of trust or cheating could be said to have been made out. Section 406 has to be completely ruled out. There was no entrustment of any property by the first informant to the accused. There is no question of making any willful false representation also so as to attract section 415 of the Indian Penal Code.
9. In view of the above, the Criminal Misc. Application No.1113 of 2014 is allowed. The first information report stands quashed so far as the applicant is concerned.
Page 4 of 6
HC-NIC Page 4 of 6 Created On Sat Dec 12 01:57:29 IST 2015
R/CR.MA/1113/2014 ORDER
10. So far as the second connected matter is concerned, the same is filed by the owner. I have already narrated the facts. Even so far as the owner is concerned, there is no document which could be said to be a false document within the meaning of section 464 of the Indian Penal Code. Let me assume for the moment that one property is transferred twice or thrice, then also such a document would not fall within the ambit of a false document as explained under section 464 of the Indian Penal Code. For example, if a person executes a registered sale- deed of a document of a property which does not belong to him and he has no title over the property, then such execution of the document could be said to be cheating but that will not render the document to be a false document. This law is well explained by the Supreme Court in the case of Mohammed Ibrahim & Ors. vs. State of Bihar & Anr., 2009 (8) SCC
751.
11. To the aforesaid extent, I am inclined to quash the first information report so far as forgery part is concerned. I am of the view having regard to the allegations levelled in the first information report that the police may investigate the first information report so far as the offence of cheating punishable under section 420 of the Indian Penal Code is concerned with respect to the owner of the land in question.
12. In the result, the Criminal Misc. Application No.1372 of 2014 is allowed in part. The first information report so far as the offence punishable under sections 465, 467, 468, 471 and 406 of the Indian Penal Code is concerned, is ordered to be quashed. The police may continue with the investigation so far Page 5 of 6 HC-NIC Page 5 of 6 Created On Sat Dec 12 01:57:29 IST 2015 R/CR.MA/1113/2014 ORDER as section 420 of the Indian Penal Code is concerned. Rule is made absolute to the aforesaid extent. The interim order earlier granted shall continue for a period of four weeks from today to enable the applicant of Criminal Misc. Application No.1372 of 2014 to avail of appropriate legal remedy before the appropriate forum in accordance with law if he is anticipating arrest at the hands of the police. If any anticipatory bail application is preferred, the same shall be heard as early as possible.
(J.B.PARDIWALA, J.) Vahid Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Dec 12 01:57:29 IST 2015