Gujarat High Court
Jagdish Harilal Joshi vs State Of Gujarat on 8 October, 2024
NEUTRAL CITATION
R/CR.MA/20582/2017 ORDER DATED: 08/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 20582 of 2017
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JAGDISH HARILAL JOSHI & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
VMP LEGAL(7210) for the Applicant(s) No. 1,2,3,4
MR UMANG R VYAS(5595) for the Respondent(s) No. 2
MR. PRANAV DHAGAT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/10/2024
ORAL ORDER
1. Rule. Learned Additional Public Prosecutor - Mr. Pranav Dhagat waives service of Rule on behalf of the respondent-State.
2. Heard learned advocate Mr. Vimal M. Patel appearing with learned advocate Mr. Hitesh V. Patel for VMP Legal for the applicants and learned Additional Public Prosecutor Mr. Pranav Dhagat for the respondent-State.
3. By way of this application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), the applicants have prayed for quashing and setting aside FIR being Page 1 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined I-CR No.12 of 2017 registered with D.C.B. Police Station, Dist. Rajkot City for the offence under Sections 406, 420 and 114 of Indian Penal Code.
4. Brief facts of the case are as under:-
4.1. The petitioners Nos. 1 and 2 are the brothers, and Nos. 3 and 4 are the nephews, of the complainant. Their father, Harilal Nanjibhai Joshi, purchased land on Yagnik Road on 15.02.1979.
Later, on 23.11.1979, he and his wife, along with petitioners Nos. 1 and 2, formed a partnership firm, "M/s. Harilal Nanji Joshi & Sons." Harilal Joshi sold the land to the firm in 1981, though a mistake in the firm's name occurred on the sale deed. After his death in 1981, the partnership was reconstituted. Later reconstitutions occurred in 1997 and after the death of Jayaben Harilal Joshi in 2000. A legal dispute ensued in 2017 when Digvijaysinh Parbatsinh Rana challenged a previous court order and filed a civil suit. The complainant also filed a criminal complaint, leading to the present petition.
5. Learned Advocate for the applicant submits that the Page 2 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined allegations made in the complaint are purely of the civil nature. It is submitted that there is no averment of criminal breach of trust in the impugned complaint. Since no offence can be attributed against the applicants, the FIR needs to be quashed and set aside. 5.1. Learned advocate for the applicants submitted that the land in question which is situated in the city of Rajkot was of the ownership of the partnership firm namely M/s Harilal Nanji Joshi & Sons and as per the partnership deed dated 23.11.1979, Harilal Nanjibhai Joshi, his wife Jayaben Harilal Joshi and two sons namely Ajay Kumar Harilal and Jagdish Kumar Harilal were the partners of the said firm. Thereafter upon the death of the father Harilal Nanjibhai Joshi on 30.08.1981 and death of mother on 26.12.2000 revised partnership deeds were executed and lastly a partnership deed dated 02.04.2005 was executed amongst present applicants. Necessary mutation entries were carried out in the revenue records on 04.12.2014. The partnership firm sold the land in question to Varun Satishkumar Kundalia and Kuber Satishkumar Kundalia. The factum of sale deed was within the knowledge of the complainant. Complainant issued a Notice dated 18.2.2015 claiming 1/6 th share in the property in question or claimed the amount from the sale consideration to the extent of 1/6 th share. When the complainant Page 3 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined could not succeed in her attempts to get the desired result, on 24.08.2016, complainant sold the land in question to one Digvijaysinh Parbatsinh Rana by executing a registered sale deed for consideration of Rs.58,50,000/-. The said amount of consideration was received by the complainant through cheque. A Special Civil Suit No.32 of 2017 came to be filed by said Digvijaysinh Parbatsinh Rana against the present applicants, the complainant, as well as against the other sisters of the applicants before the learned Principal Senior Civil Judge, Rajkot. In the written statement, it has been contented by the applicants that the complainant has relinquished her rights in the property in question by executing a registered release deed dated 25.5.1975. It is also submitted that when the complainant has received an amount of Rs.58,50,000/- by selling the questioned property in favour of third party, she has received a sizeable amount of money from the third party. It is also pointed out by learned advocate for the applicants that in the sale deed dated 24.8.2016, the possession of the property in question was given on as is where is basis. By referring the allegations made in the FIR which is registered on 8.8.2017, the submission of learned advocate for the applicants is that the dispute is purely of a civil nature and no offence can be said to have been committed by the applicants. Even on the question of delay, the FIR needs to be quashed and set aside. Page 4 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024
NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined It is mentioned in the impugned FIR that the date of occurrence of the offence is mentioned as 30.8.1981 till today which clearly indicates that there is a gross delay in making the complaint. It is further submitted that in the complaint there is no explanation with regard to the delay which is caused in filing the complaint. 5.2. Learned advocate for the applicants has relied upon decision of the Hon'ble Supreme Court in the case of A.M. Mohan v. State represented by SHO and Ant. Reported in 2024 SCC Online SC 339 and submitted that when dispute raises a pure question of civil nature, FIR needs to be quashed. When the remedies lie with the Civil Court, complaint ought not to have been registered by concerned Police authorities. It is further submitted that the complainant has not availed of any civil remedy for the allegations made in the complaint. Even there are no civil steps taken by the complainant in challenging the registered sale deed dated 4.12.2014. 5.3. It is further submitted by learned advocate for the applicants that the impugned FIR came to be registered on 8.8.2017 after the institution of Special Civil Suit No.32 of 2017 on 30.3.2017. 5.4. Learned advocate for the applicants has placed reliance Page 5 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined upon the decision of this Court in the case of Manojbhai Parshottambhai Movaliya v. State of Gujarat reported in 2017 (0) AIJEL-HC 237286, by placing reliance upon the said decision it is submitted that when there is a gross delay in filing the complaint, even without explaining the delay, the complaint needs to be quashed and set aside. When the remedy under the civil laws has been availed by the purchaser of the land in question pursuant to a registered sale deed dated 24.8.2016, the complainant has no right to claim any right or share in the property in question.
6. As against this, learned advocate Mr. Umang R. Vyas for the respondent No.2 has strenuously objected the contentions raised by learned advocate for the applicants. Firstly, it is submitted that the F.I.R dated 8.8.2017 was registered pursuant to the complaint dated 27.3.2015 which was filed by the complainant to the Police Commissioner, Rajkot wherein the complainant has alleged that the accused have usurped a huge amount of consideration by executing a registered sale deed dated 04.12.2014. It is also alleged in the complaint that the complainant has not relinquished her share in the property in question. It is submitted that after the death of father- Harilal Nanjibhai Joshi, names of all the heirs of deceased Harilal Nanjibhai Joshi were mutated in the City Survey Record. It is also Page 6 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined alleged that for the property situated in District Jamnagar, accused have also forged a document by relying upon false affidavits and thereby accused have committed an offence of cheating. 6.1. It is further submitted that in the partnership deed dated 23.11.1979 in Clause No.16, there is a specific condition which stipulates that upon death of any of the partner, the heirs of partners to be brought in the form as partners. Even in subsequent partnership deeds, same clause has been inserted. Despite the specific condition of impleading heirs of deceased partner in the partnership, accused have not joined complainant as one of the partners of the said firm and executed a registered sale deed in favour of Varun Satishkumar Kundalia and Kuber Satishkumar Kundalia on 4.12.2014. A legal notice dated 18.2.2015 was also given by complainant to the petitioner No.2 Ajay Kumar Harilal Joshi. 6.2. It is submitted that in the case of K. Jagadish Vs. Udaya Kumar G.S. reported in 2020 (14) SCC 552, the Hon'ble Apex court has observed that when two remedies are available with the complainant and if the complainant availed any one of the remedies, the FIR cannot be quashed on the ground of either pending civil litigation or on account of non initiation of civil Page 7 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined proceedings against accused. In the case of Binaben Vikrambhai Shah Vs. State of Gujarat reported in 2020 (0) AIJEL-HC 248744, it is pointed out by learned advocate for the respondent No.2 that when the facts give rise to a civil as well as criminal proceedings, even if civil remedy is availed by any of the parties, the complainant is not precluded from initiating criminal proceedings against the accused.
6.3. In the case of Niharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra reported in AIR 2021 SC 1918, learned advocate for the respondents has submitted that while exercising the power under Section 482 of Code of Criminal Procedure, the Court has to be more cautious and the duty is cast upon the Court to make out a very strong case for quashing the FIR. It has also been discussed in the said decision that while exercising the rights of quashing of FIR, the Court has to consider whether the FIR discloses any commission of cognizable offence or not. 6.4. In the present case, a very strong prima-facie case has been made out by the complainant by making very serious allegations of cheating. The accused were in knowledge about the fact that in the partnership deed, there is a specific covenant which Page 8 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined requires the heirs of deceased partner to be brought in the partnership firm. However, accused did not induct the complainant as one of the partners in the partnership firm.
7. Per contra, learned APP Mr. Pranav Dhagat has more or less supported the submissions canvassed by learned Advocate for the respondent No.2. In addition, learned APP has placed on record the investigation report dated 8.10.2024 which is taken on record. By referring the said report, it is submitted that the statement of various witnesses have been recorded. It is submitted that no charge-sheet is filed before the learned Court. It is submitted that the case is made out against by looking at the allegations made in complaint, a strong case has been made out against the accused for offence of a cognizable nature. In the result, learned APP has prayed for dismissal of the present application.
8. I have considered the submissions of learned advocates for the parties and also considered the FIR as well as other papers placed on record along with the petition. It is culled out from the record and from the facts that the trigger point of the filing of the first complaint on 27.3.2015 is the resultant effect of a registered sale deed dated 4.12.2014 which was executed by accused in favour Page 9 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined of those two persons. Before the said complaint, a notice dated 18.2.2015 was issued by the complainant to applicant no.2 wherein allegation of cheating has been avered. On considering the said notice, the cause for filing the complaint arose on 18.2.2015, however till 8.8.2017 no steps were taken by the complainant to pursue the allegations made in the complaint dated 27.3.2015. There is nothing on record to point out what steps have been taken by the concerned Police authorities. Instead of pursuing the said complaint, the complainant executed a registered sale deed in favour of one Digvijaysinh Parbatsinh Rana on 24.8.2016 for an amount of Rs.58,50,000/-. Thereafter, a Special Civil Suit was filed by said Digvijaysinh Parbatsinh Rana against the accused, complainant as well as against other sisters of complainant. The said suit was filed on 30.3.2017. It is the case of the accused in the written statement filed against the said Civil Suit that the complainant has relinquished her right in the property in question by executing a registered release deed dated 25.5.1975. It is pertinent to observe herein that even after a specific contention of releasing of the right from the property in question by the complainant, nothing has been pointed out by the learned advocate for the respondent No.2 that any challenge is made against the said registered release deed dated 25.5.1975. When the civil litigation has been initiated prior to the Page 10 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined registration of the FIR, it is for the complainant to make even a more strong and convincing case against accused persons for the actions to be taken against accused for the commission of offences. The complaint dated 27.3.2015 is silent about the relinquishment of her right from the property in question and the FIR dated 8.8.2017 is also silent on this aspect. The complainant has suppressed the material facts on record. Even on close perusal of the FIR, a pure case of civil dispute is surfacing on record. When, as per the say of complainant, accused have executed a registered sale deed of the property in the year 2014 wherein she has alleged 1/6 th undivided share in the land in question, nothing stopped her from claiming any right in the property by initiating civil proceedings. It also transpires that other sisters of complainant and other heirs of Harilal Nanjibhai Joshi, except the complainant, has not raised any grievance against not impleading them as the partners in the partnership firm though there is a specific covenant in the partnership deed. Only on hollow allegations made in the complaint, it cannot be said that the accused are involved in the commission of offence under Section 406, 420 and 114 of IPC.
8.1. In the case of AM Mohan (supra), the Apex Court has observed in Para 9 and 10 Page 11 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined "9. The law with regard to exercise of jurisdiction under Section 482 of Cr.P.C. to quash complaints and criminal proceedings has been succinctly summarized by this Court in the case of Indian Oil Corporation v. NEPC India Limited and Others1 after considering the earlier precedents. It will be apposite to refer to the following observations of this Court in the said case, which read thus:
"12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few--Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 :
1988 SCC (Cri) 234] , State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 :1992 SCC (Cri) 426] , Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] , Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591 : 1996 SCC (Cri) 1045] , State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164 : 1996 SCC (Cri) 628] , Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401] , Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615] , Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168 : 2000 SCC (Cri) 786] , M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a (2006) 6 SCC 736 : 2006 INSC 452 meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
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(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any Page 13 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] this Court observed:(SCC p. 643, para 8) "It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may." remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."
"10. The Court has also noted the concern with regard to a Page 14 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined growing tendency in business circles to convert purely civil disputes into criminal cases. The Court observed that this is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. The Court also recorded that there is an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. The Court, relying on the law laid down by it in the case of G. Sagar Suri and Another v. State of U.P. and Others2 held that any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution (2000) 2 SCC 636 :
2000 INSC 34 should be deprecated and discouraged. The Court also observed that though no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law."
9. The Hon'ble Apex Court has observed in Clause No.5 and laid down the principles for the exercise of power under Section 482 of Cr.PC to quash the complaints and criminal proceedings whether allegations made in the complaint disclose a criminal offence or not is the test. When the impugned FIR does not disclose any criminal offence, this Court has jurisdiction to exercise the powers under Article 226 of the Constitution of India and together with under Section 482 of Cr.PC.
9.1. In the case of Manojbhai (supra) it has been observed by the Co-ordinate Bench of this Court in Para No.29, 30, 31, 32 and Page 15 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined 34, which is being reproduced hereinunder:-
29. The respondent No.2- original complainant, as detailed hereinbefore, has already taken the legal recourse by way of preferring civil litigations against the heirs of Makanbhai and Sukhabhai and also by joining others during the pendency of the proceedings. There are certain evidence which are emerging indicating that the subsequent buyers would have knowledge of some kind of civil and revenue litigations going on between the heirs at least after the year 2007 and, therefore, M/s.Rajhans Construction Pvt. Ltd., whose cheques were also discounted after the civil litigation was initiated by the respondent No.2, may not have been oblivious of such subsequent developments. The police papers prima facie reveal certain amount of irregularities and also maneuvering in the transaction of the land at the level of some of the subsequent purchasers, however, there are sufficient number of civil laws, which can redress those grievances. Stringent actions at the hands of prescribed authorities are also not alien to the civil laws.
The transfer of agricultural land to a nonagriculturist and the grant of permission of N.A. to the purchaser, so also non- revelation of certain vital details while getting those permissions, are some of the issues which can be decided by the authorities concerned, even by cancelling the permission of N.A. if it so deems fit after availin gopportunity to the parties. These grounds by themselves would not explain the delay, which has been caused nor could cure the requirement of law where ordinarily in criminal prosecution, each day's delay is required to be explained. Even on giving benefit of doubt to the respondent No.2 on the premise of less education and limited understanding of rights, then also after once having set the civil and revenue machineries, from the year 2007, seven years of delay thereafter also, does not get explained at all.
30. This Court cannot shut its eyes to the uncomfortable reality that with the price of the land rising in leaps and bounds in the State of Gujarat, especially after the year 2006, many such litigations came up after a considerably a long years of delay. It is equally disturbing that the law of limitation and some of the other laws, which ensured certain amount of guarantee to the purchasers of the property to enjoy the property peacefully after a certain fixed period of guarantee by the statute, Page 16 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined also have been impudently trampled by setting into motion the the criminal machinery after a prolonged delay. Frustrated litigants who ventilate their grievances by resorting to criminal machinery deserves to be sternly checked. The Court is also not oblivion of the fact that civil litigations take many years and, therefore, many of the unscrupulous elements exploit such situation by also presenting coloured version of events or where the line of distinction between civil and criminal rights is thin or overlapping.
31. As the chargesheet has already been laid in the present case, there is already an alternative way available with the Court of relegating the applicants to the Court concerned for making an application for discharge. In the detailed notes, the prosecuting agency has pointed out as to why it has alleged against each of the applicants in the papers of chargesheet. Original owners Makanbhai and Naniben Sukhabhai who got mutated the revenue entry in the year 1982 could be alleged of omitting a branch of heirs, but vicarious liability is foreign to the criminal law and, hence, this deliberate, thoughtful and unpardonable delay on the part of the litigant who lost on civil side at interim stage should be simply held impermissible.
32. As indicated while discussing the chronology of events the grant of power of attorney by some of the heirs in respect of entire parcel of the land to the third party and that third party to also transfer the land by way of registered sale deed thrice, may have witnessed some of the irregularities in the transactions, which are to be taken care of by the concerned authorities under the civil and revenue laws. That per se, may not give a ground for criminal prosecution against the subsequent purchasers also. This Court notices that the entire generation has vanished as not only Makanbhai and Sukhabhai have passed away, but some of their heirs too have also expired. Criminal prosecution cannot be allowed under the banner of "continuous offence" as alleged. Now to insist on those who have survived them and permitting such prosecution against the subsequent buyers would be nothing but to permit sheer abuse of process of law by giving a weapon of harassment and also of extracting money by means other than legal, misusing obtensibly legal process.
9.2. In the case of K. Jagdish v. Udaya Kumar G.S. Page 17 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined reported in 2020 (0) AIJEL-SC 65812, the Hon'ble Apex Court has discussed the facts as under:- 4 and 5 "7. One of the striking features of the matter is that on the day when the Sale Deed was executed, not a single paisa was actually received by way of consideration. Three post- dated cheques were handed over to the appellant and one of those three cheques was deposited in the bank for encashment on the next date. It is a matter of record that subsequent cheques were not even sought to be encashed and the appellant showed his willingness to deposit even the sum of Rs.15 lakhs received by encashment of first cheque. Further, neither the conveyance deed was preceded by any agreement of sale nor any advertisement was issued by the appellant showing his inclination to dispose of the property in question."
10. In the case of Binaben Vikrambhai Shah(supra), this Court in Paras 18, 19 and 20 has discussed the facts as under:-
"18. It is worthwhile to state that after registration of the impugned FIR, the applicants approached this Court by way of filing the present application, and a Coordinate Bench of this Court, vide order dated 10.05.2016, protected the applicants. Thereafter, the investigation was proceeded, and during the course of investigation, another document in the form of a letter addressed by the office of the applicants to the GEB has come on record also containing the signature of the mother of the complainant. The same was also sent to the FSL by the investigating officer for getting its opinion whether the signature contained in the said document actually belongs to the mother of the complainant or not, and as per the opinion of the handwriting expert, the signature upon such document also does not belong to the mother of the complainant.Page 18 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024
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19. On perusal, it is found out that civil proceedings have also been initiated by the applicants before the civil court for declaration and permanent injunction. However, though such proceedings have been initiated at the instance of the applicants claiming their ownership over the land of Block No.1117, they have not produced the original agreement to sell in the said proceedings. Even, before this Court also, the original agreement to sell has not been produced on record by either of the parties, and in the absence of original agreement to sell, it is difficult for this Court to come to any particular conclusion. However, in my considered opinion, in cases where the ownership right is being claimed, the entire burden of proof lies upon the claimant to produce the cogent and convincing piece of evidence in support of its claim, which in the present case, the applicants have failed to do so. Not only that, it is brought to the notice of this Court by learned advocate Mr. Patel that the complainant has preferred an application before the civil court seeking direction to the applicants to produce the original agreement to sell on record, however, uptil now the same has not been produced by the applicants before the civil court despite the fact that the entire suit proceedings hinges upon the said agreement to sell. Even both the parties have filed an affidavit before this Court specifically stating that the original agreement to sell is not in their custody. Thus, in the opinion of this Court, the mystery whether the original agreement to sell is lying in whose possession can only be unfolded upon proper investigation being carried out.
20. Another aspect which is also pertinent to note here is that the agreement to sell was executed in the year 1993 with a specific condition that within a period of 18 months, after payment of entire amount of consideration, the sale deed shall be executed, and per the say of the applicants, the entire amount of consideration had been paid by the applicants at the relevant point of time. If this being the situation, then why the applicants have kept mum and not initiated any proceedings for specific performance of contract for this many years, and all of a sudden, after the complainant side applied for title clearance, woke up from the slumber and raised the objection by producing the copy of the agreement to sell claiming their ownership over the land of Block No.1117 and that too, on the basis of a xerox Page 19 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined copy of the agreement to sell and not the original one. Even no documentary evidence has been produced by the applicants to indicate that during the interregnum period, they have made any attempt by addressing a letter or issuing any notice to the complainant for getting the sale deed executed. If, at the relevant point of time, the agreement to sell was executed for both the parcels of land, then the original must have been in the custody of the applicants, as it is in the wisdom of any prudent and vigilant person that at the time of execution of the registered sale deed, there is always a need of agreement to sell, if any in existence and, therefore, it is for the vendee who wants to get the sale deed executed to keep such an important document in his safe custody till the execution of the sale deed."
11. In both the above decisions the allegations and the facts narrated/ alleged in the complaint are different from the allegations made by the complainant in the present impugned FIR. When the complainant, in the present case, has remained silent for so many years after the death of her parents though, the complainant was fully aware about the relevant clauses of the partnership deed wherein a clause was inserted that upon death of the partner, his / her heirs to be impleaded as partners in the partnership firm. Even in year 2015, when a notice was given by the complainant claiming undivided 1/6th share in the property in question and in alternative claimed 1/6th amount out of the consideration which present applicants have received Page 20 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined in 2014. Rightly or wrongly, the complainant also sold the property in question to a third party and received a very handsome amount of consideration from the transferee. Civil litigation is pending between the parties with regard to the property in question in the impugned FIR.
12. The scope and ambit of inherent powers of the Court under Section 482 of the Code or the extra-ordinary power under Article 226 of the Constitution of India, now stands well defined by series of judicial pronouncements. Undoubtedly, this Court has inherent power to do real and substantial justice, or to prevent abuse of the process of the Court. At the same time, the Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power vested in the Court should not be exercised to stifle a legitimate prosecution. However, this Court can exercise its inherent power or extra-ordinary power if the Court comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court, or the ends of justice require that the proceeding ought to be quashed. Thus, I am of the Page 21 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024 NEUTRAL CITATION R/CR.MA/20582/2017 ORDER DATED: 08/10/2024 undefined considered view that the allegations in the first information report / complaint if taken at its face value and accepted in their entirety, they do not constitute the offence alleged and the chances of an ultimate conviction after full-fledged trial are bleak and continuation of criminal prosecution against the applicants accused is merely an empty formality and wastage of prestigious time of the Court.
12. Resultantly, this application is allowed. The impugned I-CR No.12 of 2017 registered with D.C.B. Police Station, Dist. Rajkot, as well as other consequential proceedings are hereby quashed and set aside qua the present applicants herein. Rule is made absolute.
(D. M. DESAI,J) MANISH MISHRA Page 22 of 22 Uploaded by MANISH MISHRA(HC01776) on Thu Oct 24 2024 Downloaded on : Sat Oct 26 22:09:38 IST 2024