Gujarat High Court
Kinjalben Vickykumar Patel vs State Of Gujarat & on 28 July, 2017
Author: Biren Vaishnav
Bench: Biren Vaishnav
R/CR.MA/4801/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 4801 of 2012
With
CRIMINAL MISC.APPLICATION NO. 6239 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
==========================================================
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 ?
==========================================================
KINJALBEN VICKYKUMAR PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
THAKKAR AND PAHWA ADVOCATES, ADVOCATE for the Applicant(s) No. 1
MR.PRANAV TRIVEDI, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 28/07/2017
Page 1 of 10
HC-NIC Page 1 of 10 Created On Mon Aug 21 05:59:36 IST 2017
R/CR.MA/4801/2012 JUDGMENT
COMMON ORAL JUDGMENT
1. Both these applications have been filed by the original accused nos.1 and 2 respectively for quashing of First Information Report being M. Case No.3 of 2010, registered with Pardi police station.
2. The facts which have given rise to these applications for quashing the said criminal case are as under.
2.1 The respondent no.2Manharbhai Balubhai @ Babubhai Mayavanshi filed an FIR before the Pardi police station invoking sections 465, 467, 468, 469, 471, 474, 406, 420, 504, 506(2), 114 of IPC. It is his case that he along with the accused nos.7 to 9, his sisters Premilaben, Niruben and Harshanaben owned certain lands being lands at Survey Nos.317/2, 322 and 323/1 at village:Kalsar, Taluka:Pardi. The complainant further stated that the accused nos.1 and 2 i.e. the present applicants continuously harassed the complainant forcing him to part with the lands in question. On 28.05.2009, when he received a notice under the provisions of section 135(D) of the Bombay Land Revenue Code, it came to light that one Page 2 of 10 HC-NIC Page 2 of 10 Created On Mon Aug 21 05:59:36 IST 2017 R/CR.MA/4801/2012 JUDGMENT Ishwarbhai Ramanbhai Patel, who was the accused no.3 as a power of attorney holder, sold the lands in question to the accused nos.1 and 2. On the basis of such sale deeds, entered into by the accused no.3 Ishwarbhai Patel, as a power of attorney holder, which, according to the complainant, was bogus, based on which, the sale transaction in question, selling the land in favour of the applicantsaccused nos.1 and 2 for a consideration of Rs.51,000/ was entered into and the sale deed was executed in favour of the applicants accused nos.1 and 2. The sale deed was so entered into on 21.04.2009.
2.2 Having noticed that the revenue entry was mutated in the names of the applicants, the complainant approached the Pardi Mamlatdar and filed objections to such mutation entry. The entire FIR of the complainant elicits the story that Ishwarbhai Patel as a power of attorney holder, the sale deed was executed in favour of the applicantsaccused nos.1 and 2. The sale deed was so entered into on 21.04.2009. Having noticed that the revenue entry was mutated in the names of the applicants, the complainant approached the Mamlatdar of Pardi and filed objections to such Page 3 of 10 HC-NIC Page 3 of 10 Created On Mon Aug 21 05:59:36 IST 2017 R/CR.MA/4801/2012 JUDGMENT mutation entry. Based on the sale transaction, the Mamlatdar had on 25.05.2009, mutated the entries in favour of the applicants. The entire transaction of sale therefore was based on a power of attorney which was nonexistent and therefore the accused nos.1 and 2the present applicants, the accused no.3the power of attorney holder together with the three sisters had committed the offence as made out in the complaint. It is this complaint that the applicantsaccused nos.1 and 2 have comeforth with a prayer that it be quashed.
3. Respondent no.2 though served, has not appeared. Even when this Court had issued a notice in the aforesaid matters in the year 2012, the original complainantrespondent no.2 did not think it fit to appear and contest the applications.
4. Mr.Nandish Thakkar, learned advocate has appeared on behalf of the original accused nos.1 and 2 in the aforesaid applications and pointed out that the lands in question were sold by the power of attorney holder the accused no.3 Ishwarbhai Ramanbhai Patel to the applicant of Criminal Misc. Application No.4801 of 2012 by a registered sale deed on 20.04.2009. Similar Page 4 of 10 HC-NIC Page 4 of 10 Created On Mon Aug 21 05:59:36 IST 2017 R/CR.MA/4801/2012 JUDGMENT transactions were entered into as far as survey nos.322 and 323/1 are concerned. According to Mr.Thakkar thus, sale deeds were entered into and the applicants were bonafide purchasers for value without notice as a result of transactions in question. Mr.Thakkar has invited my attention to the sale deeds in question.
5. As far as Criminal Misc. Application No.6239 of 2012 is concerned, it is Mr.Thakkar's case that he was only attesting witness and had not played any role in the entire proceedings.
6. It is further contended by Mr.Thakkar that Regular Civil Suit No.54 of 2009 was also filed before the learned Civil Judge (JD) at Pardi by the original complainant. Application Exh.5 to the said Civil Suit No.54 of 2009 has been annexed to the application. Looking into the order passed by the learned Civil Judge in the order filed below application Exh.5 by the original complainant against the present accused, what is evident from the reading of the said Exh.5 order is that the Civil Court, based on the examination of the report of a handwriting expert, Page 5 of 10 HC-NIC Page 5 of 10 Created On Mon Aug 21 05:59:36 IST 2017 R/CR.MA/4801/2012 JUDGMENT came to the conclusion that the power of attorney was genuine. The Civil Court has observed that the power of attorney, which was produced at 42/1 before the Civil Court, was examined at the hands of the handwriting expert and it was found that the power of attorney was not forged but was genuine. No evidence has been produced by the plaintiffthe complainant herein otherwise. Exh.5 therefore was refused against the plaintiffwho was the complainant as far as these applications are concerned.
7. Mr.Nandish Thakkar also argued that ingredients of sections 405, 467 and 468 were not made out and therefore, this Court in exercise of powers under section 482 of the Criminal Procedure Code, should quash the complaint.
8. I have heard Mr.Pranav Trivedi, learned APP for the State. As noted earlier, the original complainant has not thought it fit to appear and contest the proceedings.
9. The gravamen of the dispute is that the entire dispute has given rise to the complaint of the complainant. The accused no.3 engineered a power of Page 6 of 10 HC-NIC Page 6 of 10 Created On Mon Aug 21 05:59:36 IST 2017 R/CR.MA/4801/2012 JUDGMENT attorney in his favour. Based on this power of attorney, he sold the lands in question to accused nos.1 and 2, the present applicants. The remaining accused nos.7 to 9, the sisters of the complainant abetted such a transaction and were therefore roped in, in order to challenge the validity of the transaction. Sections 405, 467, 468 and 420 of the Indian Penal Code were invoked to implicate the present applicants.
10. What is evident on reading the applications in which the applicants have annexed the copies of the civil suits which have been filed by the original accused, is a specific prayer of the complainant that the sale deeds which were consequential to the power of attorney be set aside. In the aforesaid suits so filed, the order below Exh.5 records a finding specifically against the complainant, to the effect that the power of attorney produced at 42/1 was investigated at the hands of the handwriting expert and there was nothing amiss in the power of attorney.
11. What needs to be further appreciated is that after filing of the suit on 21.06.2010, the complainant waited and the present complaint was filed Page 7 of 10 HC-NIC Page 7 of 10 Created On Mon Aug 21 05:59:36 IST 2017 R/CR.MA/4801/2012 JUDGMENT only six months thereafter in December, 2010. This Court is aware of the limited jurisdiction which it has under section 482 of the Criminal Procedure Code. The jurisdiction is restricted but, for special intervening circumstances, a complaint filed invoking sections 406, 467, 468 and 420 of Indian Penal Code should not be lightly interfered with. However, in the facts of the present case, what is evident is that the allegation appears to be that it was the accused no.3, who though not authorized, had got himself the power of attorney made in his favour and the lands in question were sold to the applicant of Criminal Misc. Application No.4801 of 2012. Sale deeds were executed, revenue entries were mutated in his favour. At that point of time, the complainant cameforth and objected to the revenue entries before the Mamlatdar. It has come on record that subsequent to the settlement arrived at, the revenue proceedings at the end of the complainant were withdrawn. Even in the civil suit which preceded the complaint, the complainant failed in his appeal to seek injunction. A specific finding of fact has been arrived at in the order at Exh.5 that based on the report of the Page 8 of 10 HC-NIC Page 8 of 10 Created On Mon Aug 21 05:59:36 IST 2017 R/CR.MA/4801/2012 JUDGMENT handwriting expert, the power of attorney has been found genuine. Mr.Nandish Thakkar has also placed on record copies of the Revenue entries which have attained finality and the name of the applicant of Criminal Misc. Application No.4801 of 2012 has been entered into in the Revenue records.
12. In view of the fact that the applicant of Criminal Misc. Application No.4801 of 2012 has purchased the lands and has been a bonafide purchaser for value without notice and the applicant of application No.6239 of 2012 was only attesting witness, no fault can be found in their transaction so as to warrant any implications under sections 405, 407, 467 and 468 of the Indian Penal Code. Having failed in his attempt at the civil proceedings and having settled the issue before the Revenue authorities, the criminal prosecution has sought to be initiated.
13. In my view, this case therefore fails as it amounts to abuse of process of law. More so, when admittedly it is a case where a civil dispute is pending, in a civil matter, invoking criminal Page 9 of 10 HC-NIC Page 9 of 10 Created On Mon Aug 21 05:59:36 IST 2017 R/CR.MA/4801/2012 JUDGMENT proceedings is nothing but an afterthought and abuse of process and on these counts, both these applications for quashment of FIR being M.Case No.3 of 2010 registered with Pardi Police Station is required to be allowed. The FIR being M. Case No.3 of 2010 is quashed and set aside qua accused nos.1 and 2present applicants.
14. Both these applications are allowed and disposed of in above terms.
(BIREN VAISHNAV, J.) ANKIT Page 10 of 10 HC-NIC Page 10 of 10 Created On Mon Aug 21 05:59:36 IST 2017