Gujarat High Court
Vishvabandhu Dahyabhai Patel vs State Of Gujarat on 18 October, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/23589/2019 ORDER DATED: 18/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23589 of 2019
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VISHVABANDHU DAHYABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MS SHUBHA B TRIPATHI(5597) for the Applicant(s) No. 1,2
for the Respondent(s) No. 2
MR AM PAREKH(562) for the Respondent(s) No. 3
MR PRANAV TRIVEDI, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/10/2021
ORAL ORDER
1. Rule. Learned APP waives service of notice of Rule for the respondent-State. Mr. Parekh, learned advocate waives service of notice of Rule for the respondent no.3.
2. Present petition is filed by the petitioners with a prayer to quash and set aside the FIR being I-CR No.29 of 2016 registered with Infocity Police Station, Gandhinagar on 05/04/2016 and Criminal Case No.5523 of 2016 with charge sheet no.60 of 2016 dated 06/11/2016 and consequential proceedings thereof.
3. Mr. Pranav Trivedi, learned APP assisted by Mr. A. M. Parekh, learned advocate for respondent no.3 submitted that the culpability of the parties are to be examined and this Court is under no obligation to examine the correctness of the FIR.
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4. Mr. Saurin Mehta, learned advocate for Ms. Shubha B. Tripathi, learned advocate for the petitioner submitted that the said FIR filed at Infocity Police Station, Gandhinagar against accused nos.2 to 10 came to be quashed by a judgment and order dated 10/07/2019 in Special Criminal Application No.8790 of 2016. Said order was challenged before the Hon'ble Supreme Court by way of SLP (Criminal) Nos.10387-10388 of 2019 filed by Sanjay J. Patel, respondent no.3 herein and the Hon'ble Apex Court on 07/01/2020 did not find any grounds to interfere with the order of this Court and the said SLPs were accordingly dismissed.
5. Mr. Saurin Mehta, learned advocate submitted that in view of the order of the Hon'ble Supreme Court, judgment dated 10/07/2019 in Special Criminal Application No.8790 of 2016 has become final. Mr. Mehta, learned advocate submitted that it is observed by this Court in order dated 10/07/2019 that the issue in question is purely civil in nature. Accused nos.2 to 10 had filed the Special Civil Suit No.323 of 2008 on 21/11/2018 whereby the present petitioner no.1 who is accused no.1 in the charge sheet has been made defendant no.47 who had filed written statement before the trial court at Exh.34 submitting about the memorandum of understanding (MOU) dated 16/11/2005, 30/10/2006 and 21/04/2007. Mr.Mehta, learned advocate stated that those facts were not disclosed in the FIR. He submitted that the complainant himself has filed Special Civil Suit No.190 of 2009. Mr.Mehta, learned advocate submitted that execution of MOU creates the rights of the parties and suppression of said facts of execution of three MOUs itself smacks of malafide and by Page 2 of 11 Downloaded on : Mon Jan 17 00:47:09 IST 2022 R/CR.MA/23589/2019 ORDER DATED: 18/10/2021 suppressing the very fact accused nos.2 to 10 had obtained ex parte injunction which is pending adjudication before the trial court. Mr.Mehta, learned advocate submitted that present petitioners have also filed special civil application for specific performance of MOU.
6. Mr.Mehta suggests that if at all any grievance was to be raised, it should be by accused no.2 to 10 and in the facts of the matter they are very much willing to execute the MOU and since the FIR against accused nos.2 to 10 have been quashed, he states that there would be no reason for the said FIR and the charge sheet followed by trial to continue against accused no.1 and 11.
7. Referring to the facts of the matter, Mr. Saurin Mehta, learned advocate states that SS Construction, a Partnership firm with partners Kantaben Parsottambhai Patel, Ambalal Parsottambhai Patel and Govardhanbhai Parsottambhai Patel with a scheme declared in the name of Jain Vatika in the year 1996 invited members to join the scheme for the booking of the plots and subsequently MOU were executed where all the obligations were undertaken by accused nos.2 to 10 and accordingly accused nos.2 to 10 were to discharge their obligations. Mr. Saurin Mehta, learned advocate submitted that in Special Criminal Application No.8790 of 2016, no such burden came to be attributed against the present petitioners. He further stated that prior to this FIR, similar type of complaint was before the LCB Police Station, Gandhinagar alleging the same offence and after investigation, the Police Inspector of Adalaj Police Station in his report dated 16/09/2011, observed that the dispute appears to be of civil Page 3 of 11 Downloaded on : Mon Jan 17 00:47:09 IST 2022 R/CR.MA/23589/2019 ORDER DATED: 18/10/2021 nature.
8. Mr. Mehta, learned advocate stated that thereafter one Kishorbhai Babubhai of the said scheme with similar set of allegations filed a complaint before the Chief Metropolitan Magistrate, which came to be registered as Criminal Case No.57 of 2008 and after considering the total aspect of the matter, the same was dismissed on 22/05/2008. It is submitted that there is no allegation of any fabrication of documents or forgery. The said property was of survey no.85 and survey no.88 which in total is of Rs.84893 sq. mtr. Of village Nabhoi of Taluka and District-Gandhinagar. Present respondent no.2 thus gave a complaint against the accused claiming partnership right in the scheme of Jain Vatika before the said investigation team and complaint was forwarded to LCB, Gandhinagar and after due investigation, closure report was filed and thus, no FIR came to be registered. It is also submitted that inspite of closure report, impugned FIR is filed. Thus, stated that the FIR itself is false when, one branch of police station found no case against the petitioners and inspite of observation in the closure report, another branch of police station permitted registration of the FIR. Petitioner no.1 is power of attorney holder of petitioner no.2 who are accused nos.1 and 11 in the charge sheet.
9. Petitioner no.1 is power of attorney of Shantaben, Ambalal, Govardhanbhai and since Shantaben and Ambalal died, Goverdhanbhai is sole survivor arrayed in the FIR as an accused. Three MOUs dated 16/11/2005, 30/10/2006 and 28/04/2207 were entered into with petitioner no.1. Accordingly members of Jain Vatika were to be released by Page 4 of 11 Downloaded on : Mon Jan 17 00:47:09 IST 2022 R/CR.MA/23589/2019 ORDER DATED: 18/10/2021 paying compensation and in failure of petitioner no.1 to fulfill condition, the second part of the MOU were to fulfil the same. Interpretation of the MOUs and the rights and obligation would be subject matter to be decided by the Civil Court. Mr.Mehta, learned advocate stated that the parties are before the competent court with their suits.
10. This Court in Special Criminal Application No.8790 of 2016, while observing the facts of the MOUs, power of attorney and allegations made in the FIR, observed in para 17 to 21 as under:
"17. Thus, as per the law enunciated by the Apex Court no offence can be said to have been committed by the petitioners by entering into agreements/MOU with the original land owners and their power of attorney Vishwabandhu Patel(A-10) with respect to the plots. The impugned FIR is blissfully silent on the aspect of forgery of any of the documents. In the agreement/MOU which has been entered by Vishwabandhu(A-10) and the petitioners are duly registered and the original owners are also party to the same. The respondent no.2 has not alleged that documents executed between Vishwabandhu and petitioners are false and fabricated. The entire allegations revolve around Vishwabandhu Patel, who is the original power of attorney holder of the land owners. All the documents are subject matter of scrutiny of Special Civil Suit No.323 of 2008. After the aforesaid documents were examined, the Civil Court had passed an interim injunction in favour of the present petitioners on 15.05.2009, the same was challenged before this Court by filing Appeal From Order No.190 of 2009 and allied matters by the plot holders. Vide comprehensive judgment dated 16.09.2010, this Court has rejected the Appeal From Order by holding that the suit land is in possession of the present petitioners. The court has examined the veracity of the documents as narrated in the FIR as well as the various other documents as mentioned hereinabove. The aforesaid order is confirmed by the Supreme Court vide order Page 5 of 11 Downloaded on : Mon Jan 17 00:47:09 IST 2022 R/CR.MA/23589/2019 ORDER DATED: 18/10/2021 dated 16.11.2010. Thus, as per the law enunciated by the Supreme Court in the case of Md.Ibrahim (supra), the allegations as mentioned in the impugned FIR, the ingredients of Section 463 of the IPC which defines "forgery" which reads as under, are not established:
"463 Forgery:- Whoever makes any false documents or Electronic Record part of a document or Electronic Record 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 any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery"
The respondent no.2 has alleged that the present petitioners have misled the civil court and obtained stay against the entire land. The respondent no.2 has the remedy of approaching the civil court or can challenge the injunction by filing civil proceedings.
18. The impugned F.I.R. does not reveal that the ingredients of Section 464 of the IPC, which defines "making a false documents" are satisfied. The respondent no.2 has also alleged criminal breach of trust against the present petitioners. Section 405 which defines the same is extracted as below:
405 Criminal breach of trust. --Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
The coordinate bench of this Court in the case of Prakash Ramchandra Barot & Ors. V/s. State of Gujarat & Anr., reported in 2011 (3) G.L.H. 211 has held thus:
Page 6 of 11 Downloaded on : Mon Jan 17 00:47:09 IST 2022R/CR.MA/23589/2019 ORDER DATED: 18/10/2021 "24. I may now consider whether the allegations in the complaint make out a case of 'criminal breach of trust' as defined under Section 405 of IPC. The Section reads as follows:
"405. Criminal breach of trust:- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust'.
According to the Section, a 'criminal breach of trust' involves the following ingredients:-
"(a) a person should have been entrusted with property, or entrusted with dominion over property;
(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; and
(c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust."
It is held that there is no question of any entrustment of the property or dominion over the property since the land in question was not entrusted to the accused by the first informant. In the present case all the transactions have taken place with Vishwabandhu Patel (A-10), who has executed agreement to sale and has handed over the possession letter to the respondent no.2 and the plot holders. As regards the offence of cheating, having regard to the allegations leveled in the impugned FIR, the ingredients of section 415 of the IPC Page 7 of 11 Downloaded on : Mon Jan 17 00:47:09 IST 2022 R/CR.MA/23589/2019 ORDER DATED: 18/10/2021 are also not satisfied. Section 415 of the IPC, which defines 'cheating' is incorporated as under:-
"415. Cheating. -Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation. --A dishonest concealment of facts is deception within the meaning of this section."
19. Thus, the quintessential feature for satisfying the ingredients of cheating as defined under Section 415 of the IPC is having a fraudulent or dishonest intention to retain the property or to induce the person so deceived to do something which he would not otherwise do at the time to entering an agreement or promise. A failure to maintain a promise in absence of dishonest intention cannot satisfy the offence of cheating. In the present case as per the case of the complainant the scheme was floated by the power of attorney holder Vishwabandhu, in the year 1996, and the petitioners only entered the MOU/agreements with him subsequently in the years 2006. The MOU/agreements are subject matter of scrutiny in the aforementioned civil suits where the plot holders are also parties. In the present proceedings under Section 482 of the Cr.P.C. this Court cannot examine the validity of MOU/agreements as canvassed by both the sides. Thus, the allegations made in the FIR, even if they are taken at their face value and accepted in entirety do not prima facie constitute any offence or make out any case against the petitioners. Merely because the petitioners have entered in to various agreements with the original plot holders and their power of attorney, Vishwabandhu Patel(A-10), the same will not augment to any criminal accountability. The judgements cited by the learned advocate for the respondent no.2 will not come to his rescue in wake of the aforementioned facts, as the foregoing observations reveals that no offence as alleged in the FIR is established against the petitioners.
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20. It appears that the complainant with malicious intent is trying to embroil the petitioners in the criminal proceedings though the dispute is civil in nature. Initially, the respondent no.2 filed a complaint to the LCB Police Station, Gandhinagar, the same was investigated and the PI, Adalaj Police Station, submitted a closure report on 16.09.2011 by stating that the same appears to be a civil dispute. Thereafter, another member, i.e. Mr.Kishore Babubhai Vasoya of the said scheme with similar fact and similar allegations filed a complaint before the Court of Judicial Magistrate First Class, Gandhinagar, which was registered as Criminal Case No.57 of 2008. After considering all the aspect, the same was dismissed vide order dated 22.05.2008. The Supreme Court in array of cases has condemned the tendency of complainant's attempt to give a cloak of criminal offence to matters which are essentially and purely a civil in nature, obviously either to apply pressure on the accused or to subject the accused to harassment. This is a classic case of such abuse. The criminal prosecution is set in motion in order to pressurize the accused in entering into settlement and is instituted with malicious intent with an ulterior motive. In wake of the glaring facts as noted herein above, the petitioners cannot be further allowed to be enmeshed in criminal proceedings, more particularly when the investigation also reveals that the complainant or the plot holders have not given any money to the present petitioners with regard to the plots.
21. On the substratum of the foregoing analysis of facts and law, this Court is of the considered opinion, that the petitioners have succeeded in establishing that the criminal prosecution lodged against them cannot be sustained, and the impugned FIR being C.R.No.I-29 of 2017 registered at Info-City Police Station, District Gandhinagar, and the subsequent proceedings demands interference in exercise of inherent powers under Section 482 of the Cr.P.C. As a sequel, the impugned FIR and subsequent proceedings are quashed.
In view of the judgment and order passed in the main matter, Criminal Misc. Application (for vacating stay) No.1 of 2019 and Criminal Misc. Application (fixing date of early hearing) No.2 of 2019 do not survive and Page 9 of 11 Downloaded on : Mon Jan 17 00:47:09 IST 2022 R/CR.MA/23589/2019 ORDER DATED: 18/10/2021 the same are disposed of accordingly."
11. Since no case under Sections 406, 420, 465, 467 and 468 of the IPC was found against the accused nos.2 to 10 and when MOUs are subject matter of suits before the Civil Court and the petitioner no.1 is power of attorney holder and petitioner no.2 is one of the original co-owner, their rights would be subject to the rights of the accused nos.2 to 10 which would be decided by the competent court where all of them are parties.
12. To constitute act of cheating, dishonest inducement to deliver the property etc. and mens rea of the accused at the time of making inducement is essential. If a representation made by accused is subsequently not kept criminal liability cannot be foisted. The complainant has only right to avail remedy in civil court for the breach of contract. Thus, in order to constitute offence of cheating, intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that the person had fraudulent or dishonest intention at the time of making promise to say that he committed an act of cheating. Mere failure to keep promise subsequently cannot be presumed as an act leading to cheating. Once the agency of the police comes up with closure report and states that the matter and transaction between the parties were civil in nature, the another investigating agency was required to consider the report of the agency, prior to filing of an FIR. No person can be permitted to use the criminal proceedings as a weapon and no criminal proceedings should be permitted to proceed just to harass other side which is filed with malafide intention or with Page 10 of 11 Downloaded on : Mon Jan 17 00:47:09 IST 2022 R/CR.MA/23589/2019 ORDER DATED: 18/10/2021 an ulterior motive. The court proceedings ought not to be permitted with such an intention to harass other side in the prosecution. In such a case, inherent jurisdiction of the Court is required to be invoked and when no criminal liability would arise on failure of breach of contract, continuation of the FIR and the trial would be a total abuse of process of law and would also lead to wastage of precious time of the trial court when only recourse available to the aggrieved parties would be to claim their right before the Civil Court.
13. In view of the aforesaid observation, present FIR being I- CR No.29 of 2016 registered with Infocity Police Station, Gandhinagar on 05/04/2016 and Criminal Case No.5523 of 2016 with charge sheet no.60 of 2016 dated 06/11/2016 and consequential proceedings thereof qua petitioners are quashed. Rule is made absolute to the aforesaid extent.
(GITA GOPI,J) ila Page 11 of 11 Downloaded on : Mon Jan 17 00:47:09 IST 2022