Gujarat High Court
Patel Kaniyyalal Vitthaldas vs State Of Gujarat & 2 on 10 January, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/9332/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 9332 of 2017
With
CRIMINAL MISC.APPLICATION NO. 30841 of 2017
In
SPECIAL CRIMINAL APPLICATION NO. 9332 of 2017
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PATEL KANIYYALAL VITTHALDAS....Applicant(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR.NANDISH H THACKAR, ADVOCATE for the Applicant(s) No. 1
MS. THAKKAR, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 10/01/2018
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs;
"(a) To quash and set aside the reports dated 22.11.2016 given by the respondent no.3 as well as report dated 31.05.2017 given by the respondent no.2 to the present petitioner, as the same are contrary to the observations of this Hon'ble Court in the CAV Common Judgment dated 22.02.2016 passed in Criminal Misc.
Application No.17557 of 2015 and allied matters, wherein, this Hon'ble Court was pleased to observe the commission of a cognizable offence, in the interest of justice;
(b) To issue appropriate wit, order or direction to the respondents to register the FIR pursuant to the complaint Page 1 of 21 HC-NIC Page 1 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER dated 07.07.2015 given by the present petitioner and the same be investigated by the superior office, in view of the observations of this Hon'ble Court in the CAV Common judgment dated 22.02.2016 passed in Criminal Misc. Application No.17557 of 2015 and allied matters, wherein, this Hon'ble Court was pleased to observe the commission of a cognizable offence, in the interest of justice.
(c ) To pass any other and further orders as may be deemed fit and proper to this Hon'ble Court."
2. The case of the writ applicant, in his own words, as pleaded in the writ application, is as under;
"3.1 That the land having survey number 287 (admeasuring 4 acres and 26 gunthas) dated 27.11.1888 and further was divided into 287/1 and 287/2 having 4 acre 20 gunthas and 0 acre and 6 gunthas respectively. That thereafter, during survey, land numbered 287/1 was regularized as block number 528 and 287/2 as block number 527 by entry number 1319//1320 respectively. That at that particular time the land bearing survey number 287/1 was owned by Jivabhai Khushalbhai Patel and was transferred to his son Prabhubhai Jivabhai Patel, after his death. That the petitioner further submits that the said land was owned by Prabhubhai Jivabhai Patel till 1906. Similarly, land bearing survey number 287/2 was owned by Bhudar Raiji Patel as on 27.11.1888.
3.2 That the land is an agricultural land. That it has been purchased by the great grandfather of the present petitioner named Ishvarbhai Swachand Patel as on 30.05.1909 by registered sale deed number 284-A in Sanand's Kacheri with Khata number 10/1930 and 7/12 entry has been annexed and marked as Annexure-B. That the said sale deed was executed for a consideration worth Rs.477.50, the same has been recorded by Talati of Gram Panchayat. The said land was transferred to my grandfather named Naranbhai Ishvarbhai Patel as per succession rules.
3.3 That the land bearing Revenue Block No.528 (old Survey No.287/1) divided into two parts being Final Plot Page 2 of 21 HC-NIC Page 2 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER No.528/A ( for which the present complaint has been filed) admeasuring 9713 sq. Mtrs. ("entire land") and 528/B admeasuring 8498 sq. Mtrs situated at Mouje:
Ambli, Taluka: Ghatlodiya, District: Ahmedabad.
3.4 That the grandfather of the petitioner Naranbhai Patel died in the year 1963, hence as per succession rules the land bearing Revenue Block No.287/1(528) was transferred in the name of Vithalbhai Narandas Patel, father of the petitioner and the said entry is numbered as 1165 and 1166 in the revenue Registry. It is submitted that subsequently the same land was transferred in the name of Diwaliben Viththalbhai Patel (wife of Vitthalbhai) by revenue entry no.1225. Thereafter as per family understanding Revenue Block No.528 further divided into two parts namely 528/A and 528/B. Land admeasuring 8498 sq. mts. Was transferred to Dwarkadas Narandas Patel (uncle of petitioner) bearing Revenue Block No.528/B and Block No.528/A admeasuring 9713 sq. mtr.
was owned by Diwaliben Vitthaldas Patel by revenue entry no.1700. That the father of the petitioner Vithalbhai Naranbhai Patel died on 26.02.2001, and as per the family settlement the property bearing block number 528A and Khata number 658 was transferred in the name of the present petitioner admeasuring 9713 sq. meter and name was registered by entry number 2700. Since then, the present petitioner is the sole owner and possessor of the said property.
3.5 That the accused persons as stated in the complaint and as were in the specific knowledge of the petitioner to being directly involved in the commission of the offences on the date of filing of the complaint are as under;
1. Sitaben i.e. Shivaji Ravaji Thakor's widow
2. Babuji Shivaji Thakor
3. Lakshmiben Shivaji Thakor
4. Kanubhai Kantiji Thakor
5. Babyben Kantiji Thakor
6. Gauriben i.e. Prahladji Revaji's wife
7. Aakash Prahladji Thakor
8. Chirag Prahladji Thakor
9. Hasmukh P. Rawal (purchaser)
10. Shankarbhai P. Prajapati (POA)
11. Bhavin V. Mehta (POA)
12. Ashok Dhanjibhai Prajapati (POA) Page 3 of 21 HC-NIC Page 3 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER
13. Jinesh C. Jani (Advocate)
14. Dhariniben C. Jani
15. Darshanaben C. Jani.
16. H.G Parmar (Sub Registrar)
17. Shrenik Shah (Sub Registrar)
18. Suresh G. Patel
19. Bhogilal K. Patel (Clerk of J C Jani)
20. Suresh A. Patel (Talati) 3.6 That all the above mentioned accused persons no.1 to 8 are the resident of village Hebatpur, Ghatlodiya, Ahmedabad. That they have, at different times made forged documents and illegally transferred the land on the name of the said purchaser by conspiring the same with Revenue Officers and committed this act of Land Grabbing. That this entire line of conspiracy is drawn below in detail.
3.7 That the alleged seller has made two notarised power of attorney (hereinafter "said POA") in favour of 1) Ashokbhai Dhanjibhai Prajapati, and 2) Shankarbhai Prabhubhai Prajapati and Bhavin Vipinlal Mehta, so as to deal with the land and using the said POA, an agreement to sell bearing No.7476/2010 and sale deed bearing No.1388/2014 have been executed in favour of one Hasmukhbhai Prahladbhai Raval That it is pertinent to note that the power of attorney holder, Ashokbhai Dhanjibhai Prajapati, actually resides at Naranpura, Sanand, District Ahmedabad but is shown as residing at Sedhabhai ni Chali, Makarba Road, Vejalpur, Ahmedabad in the sale deed executed by the accused. That it is further pertinent to note that Ashok Prajapati is also an associate of advocate Jinesh Jani. That it is further submitted by the petitioner that the correct address of Mr. Bhavin alias Anil Bipinlal Mehta is at village Tundadva and it is further submitted that he is a close relative of Adv. Jinesh Jani. That it is also pertinent to note that the witness in the sale deed is Mr. Bhogilal Kalidas Patel, who works with Adv. Jinesh Jani as his clerk and resides at 103, Akshardham Apartment, Judges Bunglow Road, Ahmedabad. Copies of the power of attorney, agreement to sell and sale deed are annexed hereto and marked as Annexure-C colly.
3.8 That the above mentioned land is one but there are two power of attorney's created and sold in furtherance Page 4 of 21 HC-NIC Page 4 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER to the conspired intention of all the accused to gain illegal benefits from the said land.
3.9 That in the sale deed they have kept the marker value of the property as Rs.51,00,000/- and the stamp duty that has been issued is of Rs.26,78,000/- The petitioner further submits that the said stamp duty was paid on 24.01.2011 and the same was kept for registration. That the same has been finalized by sub- registrar H.G. Parmar after 20 months as on 15.09.2012 with entry number 1388/2012. That there has been no reason given for delaying the same.
3.10 That the petitioner further submits that the value of the said land is not calculated as per the Jantri rates and the Jantri amount if calculated for the said land results to too high i.e. Rs.6.5 Crore. That the petitioner further submits that block no.528/B admeasuring 8498 sq. mts. Is sold at the market rate of INR 20,00,00,000/- by registered sale deed no.1326 dated 16.01.2014.
3.11 That the name of the petitioner and Mr. Baldevbhai Patel is in the 7/12 form when the entry of the sale deed was numbered as 1388/2012.
3.12 That the alleged sellers as per the POA are also not registered as the original owners in the 7/12 form. It is submitted that in the Special Civil Suit No.645/2014, the proposed accused persons have accepted that they are not the owners and are not in possession of the subject land. Annexure-D is a copy of plaint of Special Civil Suit No.645/2014 filed before the Hon'ble Civil Court concerned.
3.13 That the same sub-registrar Mr. H.G. Parmar has not recorded the entry as well as the signature and the finger print of the original owners that is the petitioner herein whose name is reflected in the 7/12 form which has to be taken by the sub-registrar but that has not been done.
3.14 That also the sale deed mentions that a particular amount has been paid via cheque number 066222 to 066229 of Dena Bank, Kolvada Branch, Vejalpur. But it is submitted that the actual payment has not been done by this account but the entries are just shown to shown that Page 5 of 21 HC-NIC Page 5 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER this malafide payment has been done. It is further submitted that as per the sale deed the seller is from Hebatpur, Ahmedabad and the purchaser is one Hasmukh Prahladji Raval, resident of Mumbai. That it is also submitted that the same Hasmukh Prahladji Raval's account is at Dena Bank, Kolvada Branch, Vejalpur but he does not have PAN card.
3.15 That it is also evident from the entire sale deed that the purchaser as shown has paid Rs.70,33,000/- in cash out of Rs.79,78,500/-.
3.16 That it is further submitted by the petitioner that the accused persons have made an RTS appeal, numbered as 265/2013 which was rejected by the deputy collector. That the Hon'ble Collector has rejected their L.B Revision number 446/2014 and the said order has been passed on 28.04.2015. Copies of the order passed in the RTS Appeal 265/2013 and L.B. Revision 446/2014 are annexed hereto and marked as Annexure-E Colly. That the petitioner further submits that appeal has been rejected on the ground that it is barred by limitation as the accused has approached after 32 years and also that the pedigree as prepared and shown by the accused are forged as such a pedigree named alias cannot be made or registered in the revenue records. That Bhudar Raiji belonged to Patel community and the alleged seller is named Baldevji Ravaji Thakor who belongs to Thakor Community.
3.17 The petitioner submits that all of the above clearly establishes the serious offences committed by the accused in conspiracy with one another to commit forgery of valuable securities and to cheat and defraud the petitioner and to grab the land of the petitioner through any malafide means whatsoever.
4. That the petitioner submits that the petitioner after the above referred dispute had approached the concerned respondent no.2 by filing the complaint dated 07.07.2015 and thereafter the respondent No.3 had called upon the present petitioner to record statement but till date no FIR has been registered. The petitioner further submits that despite the disclosure of serious cognizable offences, no action is taken pursuant to the complaint and representation of the present petitioner till Page 6 of 21 HC-NIC Page 6 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER date. Annexed hereto and marked as Annexure-F is a copy of the complaint dated 07.07.2015 made by the petitioner to the respondent No.2."
3. The genesis of this litigation lies in a judgment and order passed by this Court dated 22nd February, 2016 in the Criminal Misc. Application No.17557 of 2015 and allied matters. In the judgment delivered by this Court, referred to above, the dispute pertained to the land bearing Block No.528 (old Survey No.287/1) divided into two parts being 528/A admeasuring 9713 square meters and 528/B admeasuring 8498 square meters, situated at Moje Ambli, Taluka:
Ghatlodiya, District: Ahmedabad. The case in hand is with respect to the land bearing Survey No.528/A. In my judgment dated 22nd February, 2016, I have highlighted, in details, the modus operandi adopted by the accused persons and the large scale fraud alleged to have been committed.
4. The writ applicant herein has come with this writ application pointing out that he has also been a victim of the very same fraud and the modus operandi adopted by the accused persons. He pointed out that the first informant, so far as the matter disposed of by this Court is concerned, went straight to the police station, and the police, having come to the conclusion that the first information report disclosed commission of a cognizable offence, registered the same and carried out the investigation. So far as the writ applicant herein is concerned, he thought fit to approach the SIT and it appears that the SIT has concluded the inquiry taking the view that no case is made out for registration of the first information report. Being dissatisfied with the inquiry conducted by the SIT and the reports in this regard, the writ applicant is here before this Court seeking appropriate relief.
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R/SCR.A/9332/2017 ORDER
5. On 5th December, 2017, this Court passed the following order;
"Let notice be issued to the respondents, returnable on 19.12.2017. Ms. Moxa Thakkar, the learned APP, waives service of notice for and on behalf of the respondents.
On the returnable date, the Police Officer concerned shall personally remain present with the papers of the inquiry. The police officer shall also bring, along with him, the papers of the investigation of the first information report being I-C.R. No.73 of 2015, and the outcome of the same as on date.
Let the matter appear on top of the board."
6. Let me quote some of the observations made by this Court in the judgment dated 22nd February, 2016;
"4 Over a period of time, I have noticed a unique modus operandi being adopted by the land grabbers. The land grabbing activity now-a-days is so well articulated that on the first blush, the Court would feel that the dispute appears to be civil in nature, but a little close scrutiny would reveal a large-scale fraud as a part of a well hatched conspiracy.
5 The modus operandi which I have taken note of is that first few individuals are identified and taken in confidence and in most of the cases those individuals are rustic or illiterate people. The documents like family pedigree, records of right, etc, are created showing such persons as the owners of the land. Thereafter, they would be asked to execute a power of attorney in favour of a bogus person and the power of attorney, in turn, would transfer the entire land in favour of a third party who would also be a part and parcel of the well hatched conspiracy and fraud. The whole idea in doing so is to create a picture that the title over the disputed land is in cloud. By raising dispute as regards the title, they thereafter, would submit before the Court that the dispute is civil in nature. They would also initiate civil Page 8 of 21 HC-NIC Page 8 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER proceedings in the form of a suit, etc, and then project a picture that the dispute is civil in nature.
6 Somewhat same modus operandi has been adopted in the case in hand, and unfortunately, as pointed out by the Investigating Officer, a practicing advocate and his Clerk are the mastermind behind the entire fraud.
7 The case of the prosecution may be summarized as under:
7.1 The dispute pertains to a land bearing Block No.528 (old survey No.287/1) divided into two parts being 528/A admeasuring 9713 sq. mtrs. and 528/B admeasuring 8498 sq. mtrs. situated at Mouje: Ambli, Taluka :
Ghatlodia, District : Ahmedabad.
7.2 The owners of the land in question, namely, (1) Baldevbhai Dwarkadas Patel, (2) Bhavnaben Dwarkadas Patel, (3) Jigneshbhai Baldevbhai Patel, (4) Veenaben Rashmikant Patel, (5) Nipaben Rashmikant Patel, (6) Dhrutiben Rashmikant Patel, and (7) Nimeshkumar Rashmikant Patel executed a registered sale deed in favour of the first informant, namely, Deepak Parmanandbhai Nimbark.7.3 It is alleged that the accused Nos.1 to 5
fraudulently by personification claimed to be the owners of a land bearing Block No.528 situated at Mouje : Ambli, Taluka : Ghatlodia, District : Ahmedabad. The accused Nos.1 to 5 have nothing to do with the said parcel of land and have no right, title and interest over the property. They have fraudulently claimed the ownership over the entire block number. The original owners belong to the Patel community, whereas the accused persons Nos.1 to 5, belong to the Thakor community and have no connection worth the name so far as the land in question is concerned. It is alleged that the case in hand is one of a large scale fraud of land grabbing by hatching a criminal conspiracy. The conspiracy is alleged to have been hatched mainly with Jinesh Jani (advocate) the accused No.6, his Clerk Ashok Page 9 of 21 HC-NIC Page 9 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER Prajapati the accused No.7, and the so-called bogus purchaser Hashmukh Prahladbhai Raval accused No.9. It is also the case of the prosecution that the Revenue Officers serving as the Sub Registrar, namely, Hirabhai Govabhai Parmar accused No.8, and Sureshbhai Ambalal Patel Talati-cum-Mantri the accused No.10 are also involved in the fraud. The accused Nos.1 to 5 personified themselves as heirs of one deceased Patel Bhudar. They are alleged to have played fraud by committing a forgery in the form of removing Patel, and replacing Ravaji as Raiji, and as a part of the conspiracy, they, in collusion with Jinesh Jani (advocate) and others, executed an absolute fraudulent, forged and bogus document being a sale deed dated 24th January, 2011 in favour of one Hasmukh Raval the original accused No.9. The sale deed is alleged to have been executed by the power of attorney holder of the accused Nos.1 to 5, namely, Ashokbhai Prajapati, Clerk of advocate Jinesh Jani. The purchaser, namely, Hasmukh Prahladbhai Raval, the original accused No.9 is a resident of Mumbai and is engaged in the business of selling flowers on public road at Bhandup. He is said to have paid a total sale consideration of Rs.51,00,000/- (Rupees Fifty One lac only) by way of cheques. No such cheques have been encashed, except an amount of Rs.6,00,000/- (Rupees Six Lac only), and that too paid back to Sitaben Thakor and others by the purchaser Hasmukh Raval and also to the sisters of advocate Jinesh Jani, namely, Dhariniben and Darshanaben.
7.4 It is alleged that the jantri value of the land, at the relevant point of time, was approximately Rs.5 Crore.
7.5 It is alleged that on the strength of the bogus sale deed, the revenue entries were mutated in the records in collusion with the Sub Registrar and Talati-cum-Mantri. It is also alleged that a false family pedigree was prepared by Sureshbhai Ambalal Patel i.e. the Talati-cum-Mantri Page 10 of 21 HC-NIC Page 10 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER accused No.10 on a mere communication addressed by Babuji Shivaji Thakor without any proof of birth or death certificate of any of the parties. No legal procedure was undertaken in that regard.
7.6 The Deputy Collector had directed the Sub Registrar M.G. Parmar not to register the sale deed dated 24th January, 2011 without verifying the authenticity, legality and ownership right of the sellers as the entire transaction was suspected to be highly doubtful.
7.7 Despite such direction, the Sub Registrar H.G. Parmar proceeded with the registration of the sale deed without verifying the title deed, revenue records, authenticity of the family pedigree, etc. 7.8 When the original owners, namely, Baldevbhai Dwarkadas Patel and others came to learn about the fraud as regards the forged sale deed dated 15th September 2012, they immediately addressed a written complaint to the C.I.D. Crime (Fraud Cell) on 20th May 2014 and issued summons dated 4th June 2014 to the Thakor family.
7.9 On 16th July, 2014, the original owners sold the land to the first informant vide registered sale deed No.1326 for a total sale consideration of Rs.20 Crore paid by cheques.
7.10 The D.C.B. Police Station, Gayakwad Haveli, Ahmedabad is investigating into the fraud.
8 The learned counsel appearing for the respective petitioners vehemently submitted that no case worth the name is made out for the Police to investigate. According to the learned counsel, the entire dispute is of civil nature as the same relates to the right, title and interest over the property. They submitted that the civil proceedings are also pending between the parties in that regard. In such circumstances, they prayed that the First Information Report deserves to be quashed.
9 On the other hand, the learned Additional Public Prosecutor appearing for the State respondent vehemently opposed all the applications and submitted Page 11 of 21 HC-NIC Page 11 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER that the investigation is at a very crucial stage. She pointed out, after taking instructions from the Investigating Officer who is personally present in the Court that more than a prima facie case is made out against each of the applicants, except one to file chargesheet. The learned Additional Public Prosecutor further pointed out that the case in hand is one of a large scale fraud and valuable parcel of land is sought to be grabbed by committing forgery.
10 She submitted that the investigation should be permitted to be concluded in accordance with law and no case is made out to quash the F.I.R. at this stage.
11 Mr. Anshin Desai, the learned counsel appearing for the first informant also opposed all the applications vehemently and submitted that the investigation should be permitted to be completed against all the accused persons. Mr. Desai submitted that even if, there is some element of a civil dispute, that by itself, is not sufficient to scuttle a legitimate prosecution and that too at the stage of investigation.
12 Mr. Desai placed reliance on the following decisions:
13 I take notice of the fact that the Investigating Officer has filed a detailed affidavit-in-reply highlighting the role alleged to have been played by each of the applicants. I may quote the reply as under:
2. The Thakor family are the main persons from who details are required and I have recorded statements and collected evidence as far as the Thakor family is concerned. I have taken statements of Babuji Shivaji Thakor on 25.03.2015, 09.09.2015, 08.10.2015, 13.10.2015 and it is evident from the statements recorded till now that Thakor family is not the owner of the disputed land, Thakor family have illegally identified themselves as heirs and legal representatives of Patel Bhudar Raijibhai by stating Baldevbhai as Bhudar and Ravajibhai as Raijibhai, this way Thakors which is altogether a different cast have become heirs of Patel Bhudar Raiji who was a Patel. In the statement of Babuji Shivaji Thakor he has confessed that he Page 12 of 21 HC-NIC Page 12 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER has not even seen the land and that he cannot even identify the land, he states that he had an auto rickshaw and it was one Suresh Patel who told him that there is a land based on which the whole issue has started, that Suresh Patel had lured Babuji Shivaji Thakor stating that Thakor family will get Rs. 1 crore if they sign where Suresh Patel tells them, Suresh Patel is a land broker and Babuji Shivaji Thakor has also stated that since his birth he does not know anything about this land, that the Thakor family has no other land and they are not farmers by profession. He stated that Suresh Patel had told them that they will get Rs.1 crore based on which Babuji Shivaji Thakor told his mother and others and then Suresh Patel came with a typed document, the contents of the document are not known to Babuji Shivaji thakore but he signed the same and who is the purchaser, why it is sold, by whom it is sold is not known to Babuji Shivaji Thakor and Rs. 15 lacs are paid till now to Babuji Shivaji Thakor and others, Rs. 3 lacs by cheque and Rs. 12 lacs by cash and according to Babuji Shivaji Thakor Baldev@ Bhudar s/o of Ravaji @ Raiji is brother of his father Shivaji but he does not know the name of his own uncles wife, that he has no idea about the suit, the contents of the suit and why what is the prayer in the suit, he has only signed the same because he was to get Rs. 1 crore.
He Thakores are not co-operating with the investigation by not coming for statements so summons were issued to them for registering their statements.
3. Sitaben Thakor had stated that she is not aware about Baldev @ Bhudar s/o Ravaji @ Raiji, she does not know him and has no details about him though she is wife of Baldev@Bhudar brother Shivaji, she has stated that even she not heard of any such land from the time she got married to Shivaji Thakore and she has not seen any such land. She has put her thumb impression because Babuji Shivaji Thakor has told her. She also stated that neither she nor her husband Shivaji Thakor has ever tilled any agricultural land including the land in question and she is not aware of what papers are required to sale the land.
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Neighbours and close relatives of Sitaben Thakor and Babuji Shivaji Thakor namely Janakben Becharji Popatji Thakor has also stated that they are neighbors since many years but they are not aware about any Bhudar Raiji and the same statement is given by Dhuliben Shankarji Thakor.
4. I say that as far as advocate Jinesh Jani is concerned, Babuji Shivaji Thakor has also stated that he is aware of the mobile number of advocate Jinesh Jani but he is not aware who this advocate is. Babuji Shivaji Thakor has also stated that there is no mortgage deed with them and he is also not aware of who is in possession of land at this point of time and Ashok Dhanji Prajapti knows everything. He does not know why his uncle Baldevji and his grandfather Ravaji were shown as alias Budar and Raiji in the Pedhinamu.
5. I say and submit that as far as advocate Jinesh Jani is concerned, as per the order of this Honble Sessions Court he was granted anticipatory bail, with a condition to mark his presence on 1st and 15th of every month and is committing breach of condition, advocate Jinesh Jani is to be called again after getting statements of his sisters Dharini and Darshna and his relative Pinakin Jayantilal Jani. Some amount has been paid by the purchaser Hasmukh Raval to the two sisters of advocate Jinesh Jani and his relative Pinakin Jayantilal Jani which is being reflected in the bank statement of Mr. Raval but he has not been able to give satisfactory answers for this transfers. Further investigation will give a clear role of advocate Jinesh Jani. One fact is clear that this land transaction is mastered by someone having proper legal knowledge because the land belonging to someone else has been sold to someone else and the sellers claiming to be owners i.e. Thakor family have no idea about the land, there is no documentary proof regarding their title instead everything contrary is found out, Thakor family had not right, authority, business or interest in this land and it was only the original owners namely Ishwar Page 14 of 21 HC-NIC Page 14 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER Savcahnddas family and others who are the owners of the land in question, the purchasers role also is very doubtful because the purchaser claims to have bought the land for Rs. 51 lacs, the transaction is only of Rs. 6 lacs and from Rs. 6 lacs also Rs. 2 lacs each have been paid back to Dhariniben and Darshnaben, sisters of advocate Jinesh Jani and Rs. 1 lac has been paid to one Dhiren, it can be said that Hasmukh Raval may never have paid Rs. 51 lacs to the Thakor family, Hasmukh Raval is doing business of selling flowers at Bhandup, Mumbai, he has no PAN number, he does not pay income tax and he claims to have income of Rs.1000 per day and now claims that he had a transaction of Rs.51 lacs, Hasmukh Raval the purchaser has not been able to satisfy or produce any document showing consideration of Rs. 51 lac, income of Rs. 51 lac. Hasmukh Raval the purchaser now says that he is now carrying death ceremonies and last right rituals, Hasmukh Raval is from Gerita, Kolavada, District: Mehsana and the advocate Jinesh Janis father Chandrakant Jani is a friend of Hasmukh Raval as claimed by Hasmukh Raval himself, in short Jinesh Jani is also basically from Gerita, Kolavada, District: Mehsana, that he has land admeasuring 1.5 vigha at Mehsana, that he has no knowledge or details of amount of stamp duty and this amount totaling to Rs. 78,29,500/-, he has not been able to give any details of this amount as tho give any details of this amount as to who has paid, from which account it is paid and when and how it is paid, that Hasmukh Raval has given Rs. 2 lacs each to Dharini Chandrakant and Darsha Chandrakant for (gharkam) for household work, that Pinakin Jayantilal Jani is a friend and therefore he has given Rs.2 lacs to him. Dhiren is given to Rs. 1 lacs, it is stated by him that Dhiren is son-in-law but he does not know the name of Dhirens wife.
I say and submit that the role of Hasmukh Raval the purchaser is very clear that he is a purchaser and has acted along with other accused to grab this valuable property without any finance as stated above. On being asked about the various Cash transactions of Rs.49,000 and 75,000 Hasmukh Raval has thought it fit not to answer at all, the Page 15 of 21 HC-NIC Page 15 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER passbook entries clearly show that the above mentioned amount has been paid to Hasmukh Raval seemingly as a re-deposit. He also states that Thakor family does not have bank account but during the course of investigation it has been found that the Thakores do have banks accounts.
Hasmukh Raval has also given a statement that he is aware that revenue record does not have the names of the sellers, that there is no title of Thakor family on this land, that he was conveyed that a valuable piece of land is given away for Rs. 51 lacs and therefore as far as revenue record is concerned, he will somehow get is changed that is how he has been told by Ashok Dhanji Prajapati power of attorney holder of Thakor family. Hasmukh Raval has stated tht he knows that advocate Jinesh Jani is son of Chandrakant Revashankar Jani, Hasmukh Raval has also stated that he does not know Anil@Vipinlal Mehta, though on being sale in favour of Anil@Vipinbhai Mehta and that Hasmukh Raval also does not know Shankar Prabhudas Prajapati who is the power of attorney of Thakors in same agreement to sale for the very land in question, therefore even Hasmukh Raval is not giving exact details and information and not- cooperating with the investigation.
6. Ashok Dhanji Prajapati he is doing liaison work with advocates, phone records if seen, all of the above are in direct contact with advocate Jinesh Jani all throughout, Ashok Dhanji Prajapati is in contact with advocate Jinesh Jani all the time, that Ashok Dhanji Prajapati has been told by someone that he will be paid Rs.10,000/- for this alleged document of sale and Rs. 5,000/- more if he becomes power of attorney holder, on being asked who has told you this, he has thought it fit not to reply and thus he is not-cooperating with the investigation, he also states that in village Form No.7/12 names of Thakor family are existing, on being asked about the record where the names of Thakor family are existing he could not show at any place and has kept silence on this question, he also states that because I am doing work with advocates of liaising Thakors have come to me and said that Page 16 of 21 HC-NIC Page 16 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER these are the revenue records and such a transaction has to be undertaken and therefore I help them out, contrary to that Thakors have no knowledge of what Ashok Dhanji Prajapati is saying, that because Ashok Dhanji Prajapati is doing liasoning work he is in contact with advocate Jinesh Jani and helps him out in revenue records proceedings of village Form No.7/12 etc.
7. I say that as far as Suresh Patel, then Talati of Hebatpur is concerned, he gave a statement that he is not having his signature in Pedhinama, that he has not prepared any such Pedhinama and after he has preferred a quashing petition before this Honble Court and has made wrong allegations against me, after giving this statement for reasons best known to Suresh Patel, he has also stated that if original Pedhinama is seen, he will be able to give further details of any of this Baldev@Bhudar etc. and then thereafter, not cooperated with the investigation.
8. I say that the present Talati of Hebatpur namely Hetalben Chaudhari given the procedure as to how and under what procedure pedhinama is prepared and being shown the present disputed pedhinama she has stated that this is no way to prepare a pedhinama, this is not the method under which the pedhinama can be prepared, the details on the basis of which such pedhinama is prepared, that as far as names stated as aliases, affidavits are to be taken of all those persons,k date of death certificates are to be taken, identity cards are to be taken of the persons and that from the file it has not come on record that any such document is produced before the pedhinama is prepared, that witnesses to such pedhinama have to be of such an age who would have witnessed presence of such persons during their lifetime. I say that Talati of Ambli namely Urvashiben Vaghela has state that there is no revenue entry of heirs and legal representatives of Bhudar Raiji, that Ishwarchand Savchanddas since 1909 and thereafter, his heirs and legal representatives can only said to be owners of the land from the revenue records and other records available with the office of Land Page 17 of 21 HC-NIC Page 17 of 21 Created On Wed Jan 10 23:14:37 IST 2018 R/SCR.A/9332/2017 ORDER Records at Ambli and that at present the registered sale deed in favour of Dipakbhyai Nimbark, the complainant who can be said to be the owner and occupier of the land in question.
9. It is further submitted that the most important issue is that the original pedhinama is not produced by any of the parties, Babuji Shivaji Thakor and others on being asked for the original pedhinama, they have stated that they do not have original pedhinama and Ashok Dhanji Prajapati and Hasmukh Raval on being asked about the Pedhinama they have no knowledge about the Pedhinama and are not in possession of the original Phedhinama, on advocate Jinesh Jani being asked about the Pedhinama he has also not given the copy of the Pedhinam, in short none of the accused have given the original Pedhinama based on which the whole issue has started.
10. I say from the investigation carried so far it has come to our notice the age difference between the brothers i.e. Baldev@Bhudar and Shivaji is almost 40 years which is next to impossible. The pedhinama has not been furnished by any of the accused and the statement of the present Talati of Hebatpur village clearly states that due procedure has not been followed in making this Pedhinama.
11. I say from the investigation so far carried out, there are sufficient evidence in the present case and if proper co-operation is rendered by the accused then we can reach to the root of this case. I pray before this Honble Court that powers under Section 482 of Criminal Procedure Code may kindly not be exercised and the quashing petitions filed by the accused may kindly be dismissed.
7. It appears that the judgment delivered by this Court, referred to above, was carried further before the Supreme Court by filing the Special Leave to Appeal No.3836 of 2016. The Special Leave to Appeal came to be disposed of by the Supreme Court, observing as under;
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"It is stated by Mr. K.T.S. Tulsi, learned senior counsel appearing for the petitioner before us that the matter has already been settled between the parties after the impugned order was passed by the High Court of Gujarat.
Accordingly, learned senior counsel seeks permission to withdraw the Special Leave Petition.
The Special Leave Petition is dismissed as withdrawn with liberty to the petitioner to apply before the High Court since the matter has already been settled between the parties after the impugned order was passed by the High Court, as stated by the learned senior counsel."
8. In the course of the hearing of this matter, I inquired with the learned counsel appearing for the parties whether any such settlement had taken place between the parties after this Court delivered the judgment. Prima facie, it appears that no such settlement has been arrived at and it is not clear as to on what basis the learned senior counsel made a statement before the Supreme Court that the matter had been settled between the parties. Even after the SLP was disposed of, none of the parties came before this Court, more particularly, when the liberty was reserved by the Supreme Court in its order.
9. Ms. Thakkar, the learned APP appearing for the State, after taking instructions from the P.S.I concerned and after going through the entire record, with her usual fairness, submitted that the matter requires serious consideration and the first information report ought to have been registered in accordance with law. According to the learned APP, more than a prima facie case is made out for the purpose of registration of the first information report and the investigation of the same in accordance with law.
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10. A statement is being made by the learned APP upon the instructions from Shri M.D. Panchal, P.S.I, Sarkhej Police Station, who is present in the Court today, that the first information report shall be registered at the earliest and the investigation shall be carried out in accordance with law.
11. I do not propose to observe anything further as that may cause prejudice to either of the sides. At this stage, I close the matter by quashing the inquiry reports and directing the police station concerned to register the first information report in accordance with law and carry out the investigation. If any of the parties is aggrieved by the registration of the first information report, it shall be open for them to avail of appropriate legal remedy before the appropriate forum in accordance with law.
12. There is one connected application along with this matter, which is at item no.27. This application is filed by the persons, against whom allegations have been levelled and the first information report is to be registered.
13. Mr. I.H. Syed, the learned counsel made a request that he be heard.
14. As the clients of Mr. Syed cannot be termed as the accused, as on date, I decline to hear Mr. Syed, as hearing him at this stage, would be setting a wrong precedent. In such circumstances, the connected application, i.e., the Criminal Misc. Application No.30841 of 2017, is not entertained and the same is disposed of.
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15. In the result, this application succeeds and is hereby allowed. The reports dated 22nd November, 2016 and 31st May, 2017 respectively are hereby quashed. The police shall now act accordingly in accordance with law as observed above.
(J.B.PARDIWALA, J.) Vahid Page 21 of 21 HC-NIC Page 21 of 21 Created On Wed Jan 10 23:14:37 IST 2018