Gujarat High Court
Jaydev Chhaganbhai Ardeshna vs State Of Gujarat on 6 October, 2018
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/7327/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7327 of 2018
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JAYDEV CHHAGANBHAI ARDESHNA
Versus
STATE OF GUJARAT
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Appearance:
MR UMESH TRIVEDI WITH MR. JAY M THAKKAR(6677) for the
PETITIONER(s) No. 1,2
MR J.M.PANCHAL Sr. Adv. With MR P.T.JASANI for the RESPONDENT(s)
No. 2
MR H.K.PATEL, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 06/10/2018
ORAL ORDER
RULE returnable on 28th NOVEMBER, 2018. Learned Additional Public Prosecutor Mr. H.K. Patel waives service of notice of Rule on behalf of the respondent - State.
Learned advocate Mr. Pratik Jasani is permitted to file his appearance on behalf of respondent no.2.
1. This application is filed for quashing of FIR being CR.I- 41 of 2018 registered with Bapod Police Station, Vadodara City for offences under Sections 209, 406, 409, 417, 418, 420, 423, 384, 389, 465, 467, 468, 477A, 34, 114 & 120(B) of the Indian Penal Code.
2. Learned advocate for the applicants submits that no offence is made out prima-facie as dispute pertains to a land transaction and the some interest in the disputed land was created by Page 1 of 4 R/CR.MA/7327/2018 ORDER execution of an agreement to sale dated 19.06.2012 between the Power of Attorney of original land owners and the applicants. Under this agreement, even as is reflected in FIR, an amount of Rs.1,15,00,000/- has been paid.
3. It is submitted that subsequently, the complainant stepped in for purchase of the said land, as a result of which as the applicants also having some interest in the land, were involved in the negotiations, pursuant to which allegedly amount of Rs.45,00,000/- were paid in cash and other amounts were paid in cheques towards extinguishing the interest, if any, in such land. It is submitted that the cheque amount was never honoured and the applicants have never received any such money. The amount was not received in cash and therefore, it is in fact the applicants who have lost their money and now are made to face the criminal prosecution.
4. As against this, learned APP submitted that the investigation is still going on and the allegations made in the FIR would make out a case of an applicants having received cash of Rs.45,00,000/-, which still needs to be investigated. It is submitted that so called documents of 2012 under which some interest is created in the disputed land in favour of the applicants is yet to be recovered in the course of investigation. It is submitted that even after registration of the FIR, on account of one litigation or the other by one party or the other, the investigation has not proceeded in the manner it should.
5. Learned advocate for the respondent no.2 submitted that it is a matter of conspiracy and therefore, role of the applicants cannot be segregated from the role of the other co-accused. It is submitted that accused no.4, who represents the original land owners, in his capacity of power of attorney, has failed in quashing before this Page 2 of 4 R/CR.MA/7327/2018 ORDER Court and has also failed so far as the anticipatory bail before this Court as well as before the Apex Court. It is submitted that the cheques given to the complainant, as is mentioned in the FIR, were only for the purpose of security and were not meant for deposit. In fact, the proceedings with regard to cheques issued for security, the applicants have filed proceedings under Section 138 of the Negotiable Instruments Act. Against such proceedings, the complainant had filed an application for quashing and after the same being rejected, now it is subjudice before the Apex Court. Therefore, relying upon the issue of cheques, is of no consequence at this stage.
6. Learned advocate for the applicants further submitted that the FIR came to be registered with great efforts including directions from this Court. He particularly draws attention of this Court to orders dated 06.03.2018 in Special Criminal 7431 of 2017, wherein in connection with the complaint by the complainant, a closer report was filed and this Court has ordered quashing of such closer report and registration of the FIR. It is also submitted that the investigation is at a very nascent stage and at that stage, quashing of the FIR may not be ordered. It is submitted that in a separate FIR by a subsequent purchaser registered as CR. 45 on 2017 of the same Police Station, where the investigation has been carried out and in the investigation, some role of the applicants is coming on record.
7. Considering the nature of the allegations made in the FIR, more particularly when the documents of 2012 under which some interest of the applicants seems to have been created on account of payment of Rs.1,15,00,000/- in the disputed land and when the complainant stepped into the shoes of the purchaser, at that time three separate documents came to be executed on 14 th May 2015, Page 3 of 4 R/CR.MA/7327/2018 ORDER which included MOU, agreement to sale between the original owner and the complainant and the third document being cancellation of deed, cancellation of agreement to sale deed of 2012 between the applicants and the original owner, this reflects that the complainant had also recognized some interest of the applicants in the disputed land. Such being the nature of dispute between the parties, the Court is inclined to protect the applicants, however, considering the observations made by the co-ordinate bench while directing the registration of the FIR and quashing of the closer report.
8. In view of the above, till the returnable date, no coercive steps shall be taken against the applicants in connection with the impugned First Information Report. The investigation to continue in due course.
9. Direct service is permitted.
(A.Y. KOGJE, J) URIL Page 4 of 4