Ritaben Nareshbhai Desai & 3 vs State Of Gujarat & on 29 September, 2014

[Cites 32, Cited by 16]

Gujarat High Court

Ritaben Nareshbhai Desai & 3 vs State Of Gujarat & on 29 September, 2014

Bench: G.B.Shah

R/SCR.A/1525/2014 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1525 of 2014
With
SPECIAL CRIMINAL APPLICATION NO. 2514 of 2014
With
SPECIAL CRIMINAL APPLICATION NO. 3095 of 2014
With
CRIMINAL MISC.APPLICATION NO. 8311 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE G.B.SHAH

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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the
judgment ?

4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

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RITABEN NARESHBHAI DESAI & 3....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:

SPECIAL CRIMINAL APPLICATION NO.1525 OF 2014
MR P P MAJMUDAR, ADVOCATE for the petitioners
MR BB NAIK, SR.ADV. ASSISTED BY MR PARTHIV A BHATT AND MR
VIRAL K SHAH, ADVOCATES for the Respondent(s) No. 2

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MR KL PANDYA, APP for the Respondent(s) No. 1

SPECIAL CRIMINAL APPLICATION NO.2514 OF 2014
MR PT JASANI, ADVOCATE for the the petitioners
MR BB NAIK, SR.ADV. ASSISTED BY MR PARTHIV A BHATT AND MR
VIRAL K SHAH, ADVOCATES for the Respondent(s) No. 2
MR KL PANDYA, APP for the Respondent(s) No. 1

SPECIAL CRIMINAL APPLICATION NO.3095 OF 2014

MR KS SHAH, ADVOCATE for the petitioners
MR BB NAIK, SR.ADV. ASSISTED BY MR PARTHIV A BHATT AND MR
VIRAL K SHAH, ADVOCATES for the Respondent(s) No. 2
MR KL PANDYA, APP for the Respondent(s) No. 1

CRIMINAL MISC. APPLICATION NO.8311 OF 2014

MR AM DAGLI, ADVOCATE for the petitioners
MR BB NAIK, SR.ADV. ASSISTED BY MR PARTHIV A BHATT AND MR
VIRAL K SHAH, ADVOCATES for the Respondent(s) No. 2
MR KL PANDYA, APP for the Respondent(s) No. 1

================================================================

CORAM: HONOURABLE MR.JUSTICE G.B.SHAH

Date : 29/09/2014

COMMON C.A.V. JUDGMENT

1. Rule. Learned APP, Mr.K.L.Pandya for the respondent
No.1-State of Gujarat and learned Senior Advocate,
Mr.B.B.Naik assisted by learned advocates, Mr.Parthiv Bhatt
and Mr.Viral K.Shah for the respondent No.2-original
complainant-Rameshbhai Navadia waive service of notice of
rule in all these matters.

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2. These applications are filed to quash and set aside the
complaint filed by the respondent No.2-original complainant
(hereinafter referred to as "the original complainant" for
short) against the petitioners being C.R.No.I-99 of 2014
registered with Umra Police Station, Surat, and all
consequential proceedings thereunder.

3. Short facts are that land of survey No.596 admeasuring
1,00,000 sq.yards of the joint ownership of Ganda Govan and
Jatha Jairam was divided equally in 1969. In 1989, Gandabhai
executed a Power of Attorney, satakhat and possession
receipt in favour of Shri Hans Kamal Grover qua his share of
50,000 sq.yards. Shri Hans Kamal Grover executed satakhat
in favour of Anil Taneja qua 50,000 sq.yards on 16-5-1989.

3.1 Anil Taneja filed Civil Suit No.702 of 1991 against
Shri Hans Kamal Grower and Gandabhai. On 2-7-1999, Shri
Hans Kamal Grower executed satakhat on the strength of
Power of Attorney of Gandabhai in favour of Smt. Ritaben
Nareshbhai Desai i.e. petitioner No.1 handing over
possession of 15,500 sq.yards. During 2-7-1999 to 26-10-
1999, petitioners paid Rs.2,47,95,500/- to Shri Hans Kamal
Grower.

3.2 A compromise was arrived at in Civil Suit No.702 of
1991 and decree was passed on 25-10-1999 on the strength
of said compromise and permanent injunction was granted.
In pursuance of the same, Gandabhai and his family received
total consideration from Shri Hans Kamal Grower and
handed over all rights stating on affidavit that compromise is
acceptable to them. Anil Taneja vested all rights in respect of

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said land to Shri Hans Kamal Grower.

3.3 However, thereafter, Anil Taneja filed Recall
Application No.40 of 2012 on 5-4-2012 to recall order dated
25-10-1999 passed in Civil Suit No.702 of 1991. However,
said application was rejected on 19-9-2013. Against the said
order, Special Civil Application No.14810 of 2013 was filed
which was disposed of vide judgment dated 12-8-2014.

3.4 Petitioner No.1 filed application for obtaining NOC
from Airport Authority on 3-12-1999. Petitioner No.1 also
deposited Rs.1,23,000/- with GEB for electric connection in
1999. On 19-2-2000, District Development Officer declared
the said land as non-agricultural land. Petitioner No.1-
original accused No.2 vide Chalan No.20 dated 29-1-2000
paid premium amount of Rs.2,63,370/- by cheque from
Dimple Films Pvt.Ltd. Entry No.2342 is made in Village Form
No.6 on 31-3-2000 qua NA permission for multiplex cinema
and DILR measured the land.

3.5 Consequent upon the death of Shri Hans Kamal
Grower on 8-8-2000, though amount was fully paid, sale deed
could not be executed by Shri Hans Kamal.

3.6 The petitioners filed Special Civil Suit No.273 of
2002 for specific performance of agreement dated 2-7-1999.
Gandabhai died on 4-3-2005. The petitioners applied for
entry in revenue record on 1-9-2007 and Entry No.4988 was
mutated on 2-11-2007 in favour of petitioners. Said entry is
not challenged by anyone. Heirs of Shri Hans Kamal
transferred all rights in favour of the petitioners by

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registered Assignment Deed having Sr.No.13700 on 28-9-
2007. Thereafter, Confirmation Deed was also executed on
19-6-2010 and same was registered on 2-7-2010. The
petitioners paid stamp duty of Rs.23.00 lakhs.

3.7 On 3-2-2006, a bogus Power of Attorney was
executed of heirs of Gandabhai in favour of Babubhai
Manjibhai Gabani in which the original complainant-Ramesh
Navadia committed fraud and Babubhai Manjibhai Gabani
executed sale deed in favour of Ramesh Navadia-original
complainant qua 12959 sq.yards of land on 21-11-2006.
Pursuant to which, the original complainant-Ramesh Navadia
sold the said land to Natha Jivani on 3-4-2007. Two
correction deeds were executed between Babubhai Manjibhai
and the original complainant as well as the original
complainant and Natha Jivani on 11-4-2007. Natha Jivani
executed sale deed in favour of Jitendra Vaghasia, Ramesh
Vaghasia and Jayesh Govind Balar on 25-3-2008/31-3-2008.
Jitendra Vaghasia and Ramesh Vaghasia executed sale deed
in favour of Keyur Manu Balar qua 50% share in land in
question i.e. 50% of 12959 sq.yards of land on 9-8-2009.

3.8 Petitioner No.2-original accused No.3 filed criminal
complaint being C.R.No.I-777 of 2008 on 19-9-2008 in which
bail was granted vide order dated 7-5-2012 passed in
Cri.Misc.Appln.No.5160 of 2002 to Power of Attorney,
Babubhai Manjibhai Gabani, who sold the land to respondent
No.2 herein-original complainant, on making a statement that
he will help the petitioners herein in getting the said sale
deed cancelled.

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3.9 The petitioners filed Special Civil Suit No.398 of
2012 for cancellation of sale deeds of original complainant-
Ramesh Navadia. The petitioners also filed Regular
Execution application No.12 of 2011 before learned Sr. Civil
Judge, Surat, for execution of decree dated 25-10-2099
which is pending. Application filed by subsequent
purchasers in said execution application was rejected on 14-
6-2012 against which, Special Civil Application No.9630 of
2012 filed before the High Court was disposed of on 25-9-
2012 by observing that purchasers of said land are not bona
fide ones and Entry No.6987 to that effect was entered.
Special Leave to Appeal (Civil) No.20848 of 2013 preferred
against the said order was dismissed on 2-7-2013 by the
Hon'ble Supreme Court.

3.10 According to the petitioners, above sale deeds are of
agricultural lands while land in question is pertaining to NA
land and hence, sale deeds are bogus. Special Civil Suit
No.262 of 2011 filed by the original complainant-Ramesh
Navadia was rejected on 22-6-2012. Against said order, First
Appeal No.2400 of 2012 was filed. However, said appeal
was dismissed vide judgment dated 31-7-2012. It is not the
case of the original complainant-Ramesh Navadia that the
said order dated 31-7-2012 passed in First Appeal No.2400 of
2012 has been challenged before the higher forum and thus,
the said facts and issues involved in it have attained finality.

3.11 Criminal complaint filed by the original complainant-
Ramesh Navadia against the petitioners (in all against 13
accused) on 10-5-2011 vide letter dated 14-5-2011
kramank/araj/pok/183/11 was forwarded to Assistant Police

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Commissioner, "E" Division, by Deputy Police Commissioner,
"Zone-2" City of Surat, for preliminary inquiry and
accordingly, Assistant Police Commissioner, "E" Division, has
prepared his report and forwarded the said report dated 16-
7-2011 (page No.169) to Deputy Police Commissioner, "Zone-
2". The said report dated 16-7-2011 was ordered to be filed
after the opinion of Deputy Police Commissioner, "Zone-2"
and Additional Police Commissioner, "Range-2" of City of
Surat. The original complainant then filed Special Criminal
Application No.1778 of 2012 for registration of FIR against
the petitioners which was disposed of on 1-10-2012. Criminal
Appeal No.55 of 2014 (arising out of SLP (Cri.) No.591 of
2013) preferred against said order was also disposed of by
the Hon'ble Supreme Court without entering into the merits
of the matter on 6-1-2014 directing to register FIR relying on
the case of Lalita Kumari Vs. State of U.P.

3.12 On 13-1-2014, SIT(Collector) declared the sale deeds
of the original complainant-Ramesh Navadia and other
purchasers as forged.

3.13 In pursuance of order dated 6-1-2014 passed by the
Hon'ble Supreme Court, FIR was registered against the
petitioners alleging inter alia that co-accused Alpesh
Babubhai Vekaria created bogus satakhat and payment
receipt wherein signature of Rani Grover and payment dated
28-4-2000 was created even though Rani Grower, mother of
Shri Hans Kamal, died on 17-9-1999. It was further alleged
that on 11-10-1999 original owner-Gandabhai executed
Power of Attorney in favour of Shri Hans Kamal. Respondent
No.2 agreed to purchase the land and paid consideration to

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Shri Hans Kamal. It was further alleged that as Hans Kamal
passed away, his legal heirs executed sale deed in his favour
and amount was paid to Kaminiben, who cheated him by
executing bogus documents including satakhat in favour of
petitioners. It was alleged that satakhat executed in favour of
petitioner No.1 is bogus and it is on the basis of those bogus
documents, the petitioners are trying to grab possession from
the original complainant-Ramesh Navadia. According to the
petitioners, they are decree holders of Regular Civil Suit No.
702 of 1991 in respect of survey No.392 paiki qua 11,956
sq.yards. They are not concerned with other lands of same
survey No.392 belonging to Alpesh Vekaria. Hence, the
present petitions for quashing.

4. Heard learned advocates, Mr.P.P.Majmudar, for the
petitioners of Special Criminal Application No.1525 of 2014,
Mr.P.T.Jasani for the petitioners of Special Criminal
Application No.2514 of 2014, Mr.K.S.Shah for the
petitioners of Special Criminal Application No.3095 of 2014
and Mr.A.M.Dagli for the petitioners of Criminal Misc.
Application No.8311 of 2014, learned Addl. Public Prosecutor
for the State and learned Senior Advocate, Mr.B.B.Naik,
assisted by learned advocates, Mr.Parthiv Bhatt and Mr.Viral
K.Shah for the original complainant-Rameshbhai Navadia in
all the petitions.

5. It is pertinent to note at this juncture that learned
advocate, Mr.Majmudar, produced affidavit of accused No.3-
Nareshbhai Kikubhai Desai dated 26-8-2014 requesting this
Court to consider the averments made therein and to permit
the applicants to take documents on record which is annexed

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vide Annexue-R/1. He further submitted that he is producing
the same since some of those documents were not available
with the learned advocate and they were subsequently
brought to the notice of the advocate and therefore, the
submissions made by him are to be considered more
particularly when the rejoinder submission is yet to be
commenced by him. If the cited documents are taken on
record, no prejudice would be caused to the otherside.

5.1 Learned Senior Advocate, Mr.B.B.Naik, for the
original complainant-Rameshbhai Navadia, submitted that as
the endorsement dated 26-8-2014 is made by them on the
said affidavit at the stage of submission of rejoinder i.e. after
completion of his submissions, an attempt has been made to
produce further documents along with the affidavit prepared
by the petitioners herein and as the original complainant has
completed his submissions, now no new documents should be
permitted to be produced on record more particularly when
the Hon'ble Apex Court has clearly held that while deciding
the question related to Section 482 Cr.P.C., the averments
made in the FIR are required to be considered and the Court
has not to go through each and every document which is to
be produced by either side. Moreover, this is to seal the
loopholes which the otherside has found after completion of
the submissions on behalf of the original complainant and
hence, such a permission for producing new documents
should not be granted otherwise there would be no end to
hearing of the proceedings.

5.2 On the above point, I have considered the above
referred rival submissions made by the learned advocates for

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the parties. It is not in dispute that at the stage of submission
of rejoinder, the learned advocate for the petitioners herein
submitted affidavit dated 26-8-2014 with a request to take
the documents at Annexure-R/1 which are in the form of
paper book on record. I have considered the averments made
in the affidavit referred hereinabove of the petitioners
together with the above referred submissions of the learned
advocate for the parties. Production of new material and that
too at the stage of rejoinder is impermissible more
particularly when enough opportunities were already given
to all the concerned parties prior to commencement of
hearing. Under the circumstances, I do not find any reason to
allow the submission made by the learned advocate for the
petitioners-original accused No.2,3,6 and 11 to permit him to
take the documents annexed at Annexure-R/1 on record and
allow him to read the same during the course of his
submission in rejoinder. Hence, said request is hereby
rejected.

6. Learned advocate, Mr.P.P.Majmudar for the
petitioners-original accused Nos.2,3,6 and 11, then submitted
that none of the ingredients of the alleged offences are prima
facie made out on a bare reading of the FIR itself. According
to him, the present FIR filed by the original complainant-
Ramesh Navadia on 5-11-2007 is a counterblast to the
complaint filed first in point of time on 17-7-2007 by
accused No.3 herein-Nareshbhai Kikubhai Desai against the
original complainant-Ramesh Navadia. Likewise, after
investigation of the complaints dated 17-7-2007 and 3-8-
2007, when the concerned Police Station had registered the
offence against 11 accused on 17-9-2008 vide I.C.R.No.777 of

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2008, again a faint attempt by way of counterblast to the
registration of offence has been made by original
complainant-Ramesh Navadia by preferring second complaint
against four accused on 19-9-2008.

6.1 He further submitted that there is an unexplained
delay in lodging the present FIR. He further submitted that
as there is no privity of contract between the petitioners and
original complainant, there can be no misrepresentation and
entrustment and therefore, the ingredients of offences under
Section 415 of cheating and section 405 of criminal breach of
trust cannot be made out against the petitioners. He further
submitted that sections 406 and 420 of IPC cannot be
invoked together. He further submitted that the satakhat
executed by Hans Kamal Grover on 2-7-1999 is not disputed
either by himself or his legal heirs and on the contrary,
assignment deed and confirmation deed was executed in
favour of petitioner Nos.1 and 2-original accused Nos.2 and 3
based on the said satakhat which is indicative of the fact that
no false or forged documents were created by the petitioners
and hence, offence under Section 463 of IPC also cannot be
made out against the petitioners. According to him, it is the
original complainant, who committed forgery by purchasing
the land from the legal heirs of Gandabhai Govanbhai on the
basis of forged Power of Attorney and forged consent letters
of legal heirs of wife of Hans Kamal Grover, which is prima
facie believed by this Court while rejecting the quashing
petition filed by respondent No.2-original accused-Babubhai
Navadia. In this regard, he relied on the ratio laid down in
the case of Mohammed Ibrahim vs. State of Bihar and
Anr. reported in 2010(1) G.L.H. 184.

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6.2 He further submitted that there is practically no
pending civil dispute between the parties and the averments
made in the plaint of Special Civil Suit No.262 of 2011 and
that of the FIR/complaint are consistent with each other and
the original complainant-Ramesh Navadia wants to convert
the said civil dispute, which has attained finality, into
criminal one to save his skin. Therefore, according to him,
the impugned FIR is nothing but an abuse of process of law
which deserves to be quashed. Relying on a decision of the
Hon'ble Supreme Court in the case of State of Haryana vs.
Bhajan Lal reported in AIR 1992 SC 604, he submitted
that when criminal proceedings are maliciously instituted
with an ulterior motive for wrecking vengeance on the
accused due to private and personal grudge, power under
Sec.482 of Cr.P.C. can be exercised. Since the present case
falls within the parameters laid down by the Hon'ble
Supreme Court in the said decision, it is requested that the
impugned FIR be quashed. Taking this Court through page
No.181 onwards, he submitted that the Hon'ble Apex Court
has not examined the matter on merits and relying on the
decision rendered in Lalita Kumari ordered to register FIR
and it does not mean that FIR cannot be quashed if it is found
that the prima facie ingredients of the offences alleged in the
FIR are not made out.

6.3 He relied on the following decisions:

i) (2005)1 SCC 122 in the case of M/s Zandu
Pharmaceutical Works Ltd. & Ors. Vs. M.D.Sharaful
Haque & Anr.;

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ii) (2001)3 SCC 513 in the case of Alpic Finance Ltd.
Vs.P.Sadasivan and Anr.;
iii) (2003)3 SCC 11 in the case of Ajay Mitra Vs.
State of M.P. & Ors.;
iv) 52 (1) G.L.R. 894 in the case of Kishan Singh
(Dead) Through L.Rs. Vs. Gurpal Singh;
v) 2011(3) G.L.H. 211 in the case of Prakash
Ramchandra Barot and Ors. Vs. State of Gujarat and
Anr.;
vi) 2014(1) SCALE in the case of Rashmi Jain Vs.
State of U.P. & Anr.;
vii) AIR 2010 SC 3624 in the case of Kishan Singh(D)
Through L.Rs. Vs. Gurpal Singh;
viii) 2011(11) SCALE 128 in the case of M/s Thermax
Ltd. Vs. K.M.Johny;
ix) 2013 (1) SCALE 665 in the case of Rajiv Thapar
Vs. Madan Lal Kapoor; and
x) JT 2012(12 SC 393 in the case of Paramjeet Batra
Vs. State of Uttarakhand.

7. While adopting the submissions made by learned
advocate, Mr.P.P.Majmudar, learned advocate, Mr.P.J.Jasani,
submitted that the original complainant-Ramesh Navadia
does not have locus to file the impugned FIR as he himself is
the accused of complaint filed by petitioner No.2-Nareshbhai
Kikubhai Desai-original accused No.3 and just to press the
petitioners to settle the entire matter, present FIR is filed.
He further submitted that when executors of the documents
are admitting the signatures on the documents executed in
favour of Ritaben Desai and Nareshbhai Desai, the original
complainant cannot make any allegations regarding the

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genuineness of those documents because the original
complainant-Ramesh Navadia has no locus for the same.

7.1 Apart from adopting the submissions of
Mr.P.P.Majmudar, learned advocates, Mr.A.M.Dagli and
Mr.Kunal Shah, submitted that proceedings initiated by the
original complainant-Ramesh Navadia against the petitioners
are abuse of the process of law as a civil suit being Special
Civil Suit No.236 of 2006 was filed by one Alpeshbhai before
the learned Principal Senior Civil Judge, Surat, for specific
performance of an agreement to sale executed on 16-2-1989
with Gandabhai Patel and Hans Kamal Grover and ultimately,
in pursuance of a compromise arrived at between the parties,
a decree was drawn and he being aware of all the
proceedings has suppressed the fact that Nareshbhai has
already filed complaint being C.R.No.I-777 of 2008 against
the complainant herein in which, charge sheet has also been
filed against him and Special Criminal Application No.1778
of 2012 filed by him before this Court was disposed of on 1-
10-2012 and if he had any grievance about the dispute of the
years 1997, 1998-2000, his statements could have been
taken in that regard in the said complaint filed by
Nareshbhai but registration of the second complaint is
nothing but to pressurize the petitioners in the parallel civil
proceedings going on before the competent court including
this Court. Relying on a decision of the Hon'ble Supreme
Court in the case of T.T.Antony vs. State of Kerala and
Ors. reported in (2001)6 SCC 181, he submitted that case
of fresh investigation based on second or successive FIR
connected to cognizable offence allegedly committed in
course of same transaction in which either investigation is

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under way or final report under Sec.173(2) Cr.P.C. is
submitted may be a fit case to exercise powers under Section
482 of Cr.P.C.

8. Learned Senior Advocate, Mr.B.B.Naik, submitted that
out of four petitions, three are filed under Article 226 of the
Constitution of India by way of Special Criminal Applications
while one is filed under Section 482 of the Code of Criminal
Procedure by way of Criminal Misc. Application for quashing
of First Information Report. He further submitted that when
a petition under Article 226 of the Constitution of India and
proceedings under Sec.482 of Cr.P.C. are initiated for
quashing the FIR, the jurisdiction of the Court is required to
be looked into. In this connection, he invited attention of this
Court towards the decision rendered in the case of State of
Orissa and Another Vs. Saroj Kumar Sahoo reported in
(2005)13 SCC page 540. He further submitted that the law
laid down by the Hon'ble Apex Court in R.P.Kapur Vs. State
of Punjab reported in AIR 1960 SC 866 has been
reiterated by the Hon'ble Apex Court in Saroj Kumar
Sahoo(supra). Taking this Court through paras 8 and 9 of
the said judgment, he submitted that three categories are
devised for exercise of powers as to whether there is a legal
bar against initiation or continuation of the proceedings. In
this case, neither of the advocate of the petitioners has
argued that there is any legal bar against initiation or
continuation of investigation under the disputed FIR.
According to him, the first and third categories are not
applicable in the present case because investigation is not
completed and evidence is not gathered and that stage has
not reached in the present case and it will reach as soon as

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investigating agency completes the investigation, files charge
sheet and records evidence before the Court. As far as the
second category is concerned, a bare reading of the FIR
makes out a prima facie cognizable offence in the present
case and hence, the FIR cannot be quashed.

8.1 Taking this Court through said decision in Saroj
Kumar Sahoo(supra), he submitted that it has been held by
the Hon'ble Supreme Court that when a cognizable offence is
disclosed, FIR must be registered. The Hon'ble Supreme
Court has directed therein that registration of FIR means
that there is a disclosure of cognizable offence.

8.2 He further submitted that if the case of the present
petitioners are falling either in category 1 or category 3,
their petitions are required to be allowed. Second category
is ruled out in the present case as, in the present case, there
is a prima facie case made out from a bare reading of FIR.
He further submitted that the effort made by the learned
advocates of the petitioners is contrary to the ratio laid
down by the Hon'ble Supreme Court in the said reported
case in Saroj Kumar Sahoo (supra) . According to him, in
view of the said judgment of the Hon'ble Supreme Court,
second category is ruled out and neither of the learned
advocates for the petitioners could point out that their cases
fall either under category No.1 or category No.3 and since
cases of the petitioners are not falling either in category
No.1 or in category No.3 as referred above and considering
the remaining category No.2, when allegations made in the
complaint disclose cognizable offence then, all the petitions
require to be dismissed.

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8.3 Mr.Naik submitted that in 2006, Rs.36.00 lakhs have
been taken away from the original complainant-Ramesh
Navadia by Kaminiben, wife of deceased Hans Kamal Grover
and accordingly, sale deed was executed. Kaminiben-accused
No.4 was fully aware when document was executed that she
had already received amount and gave consent vide
document dated 23-6-2005 for execution of sale deed in
favour of the complainant-Ramesh Navadia. Inspite of that,
she executed the document in collusion with Naresh Desai-
accused No.3 herein. He further submitted that report of
Assistant Commissioner of Police, 'E' Division, dated 16-7-
2011 was produced before the the Hon'ble Supreme Court
and said report was accepted by the Apex Court and directed
registration of FIR. The Deputy Commissioner of Police did
not grant permission to register FIR on the basis of said
report of Assistant Commissioner of Police and, therefore,
the complainant approached this Court but relief was not
granted and hence, the complainant approached before the
Supreme Court and the Hon'ble Supreme Court has
accepted the plea after considering the report of said
Assistant Commissioner of Police and directed for
registration of FIR. In this regard, he took this Court to page
181, which is the order of the the Hon'ble Supreme Court.
According to Mr.Naik, the FIR does disclose cognizable of
offence and hence, it requires to be investigated to test
whether the document of agreement to sell dated 2-7-1999
is genuine or not. The basic allegation is that this is a forged
document and on that basis, everything proceeded with and
that too against the complainant-Ramesh Navadia, who had
purchased the land by registered sale deed by making rest

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of the payment with consent of heirs of Hans Kamal Grower.

8.4 Taking this Court through running pages 283 to 289, he
submitted that on 21-11-2006, i.e. the date of execution of
sale deed, the complainant became the owner. Thereafter,
since the complainant came to know that the accused came
with bogus or forged agreement to sell of 1999 and got the
assignment deed in 2007, he submitted the first complaint on
5-11-2007 (pages 287 to 289). Mr.Naik submitted that the
material placed by the accused herein cannot be taken into
consideration at the time of investigation which is yet to be
carried out and can only be taken into consideration after
filing of charge sheet and at the time of trial.

8.5 He took this Court towards a decision reported in
(2014)3 SCC page 389 more particularly paras 7 to 12 and
submitted that if it involves a civil dispute, it self cannot be a
ground to quash a criminal proceeding but in the year 2014
also, decision rendered in (2009)11 SCC page 529 is followed
and it is reiterated that real test is whether allegations in the
complaint disclose a criminal offence or not.

8.6 He further submitted that when a quashing petition is
filed, contents of FIR are required to be seen. If the contents
of the FIR make out a prima facie cognizable offence, then,
power of quashing cannot be exercised. Sometimes, there
may be both the civil and criminal wrongs and in such a
case, both the proceedings can be simultaneously proceeded
with and it cannot be construed that as there is a civil
remedy, criminal proceedings cannot be resorted to and both
the proceedings can proceed together.

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8.7 As far as the delay in lodging the FIR is concerned, he
submitted that delay in lodging the FIR has been due to the
fault on the part of police and not on the part of complainant
and hence, the aspect of delay cannot be looked into. Delay
has to be explained and plausible explanation has been given
regarding the delay. In this case, the delay is caused due to
the fault of the otherside as the FIR is not allowed to be
registered since 2007. Secondly, because of the influence of
the accused, FIR was not allowed to be registered and hence,
delay will not come in the way of the complainant. According
to him, delay is to be explained during the stage of trial and
not at this stage. In this connection, he relied on the
decisions reported in (2004)4 SCC page 432 more
particularly para 12, (2013)11 SCC page 559 paras 7 to 11,
(2004)6 SCC page 754 more particularly paras 6.

8.8 Taking this Court through the FIR, he submitted that a
bare reading of the FIR clearly makes out a case of
cognizable offence and hence, complaint cannot be quashed.
He further submitted that the accused have forged and
fabricated "satakhat" has been utilised to get subsequent
documents.

8.9 As regards the conspiracy, he submitted that all these
accused acted in conjoint manner in pursuance of a larger
conspiracy. According to him, there are clear allegations and
report of ACP in pursuance of complaint clearly makes out
that these accused in collusion with each other tried to
deprive the present complainant of the land which he legally
purchased by execution of registered sale deed. Therefore, if

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these persons are allowed to go free even without
investigation, they will continue their illegal activities. He
submitted that conspiracy hatches in secrecy and hence,
there cannot be any direct evidence. It is not necessary that
in conspiracy, each one of the accused should play a role and
that can be inferred on completion of trial after adducing
evidence. In this connection, he took this Court through a
decision reported in AIR 1993 SC 1637 in the case of Ajay
Agarwal v. Union of India and others more particularly
paras 9 to 11.

8.10 Lastly he submitted that since the parameters laid
down by the Hon'ble Supreme Court in these reported
decisions are not made out by any of the accused, custodial
interrogation of the accused is absolutely necessary to bring
out the real documents and hence, all these petitions require
to be dismissed.

9. Before proceeding with the merits of the case on hand
and dealing with the rival submissions made by learned
advocate for the parties referred hereinabove, the law laid
down by the Hon'ble Apex Court in R.P.Kapur (supra) which
has been reiterated in Saroj Kumar Sahoo (supra)
enumerating therein three categories in paragraph Nos. 9 to
11 is required to be gone into. Those three categories read as
under:

(i) where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of
sanction;

(ii) where the allegations in the first information report
or complaint taken at its face value and accepted in
their entirety do not constitute the offence alleged;

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(iii) where the allegations constitute an offence, but
there is no legal evidence adduced or the evidence
adduced clearly or manifestly fails to prove the charge."

10. As referred hereinabove, learned Senior Advocate,
Mr.B.B.Naik specifically submitted that the category Nos. 1
and 3 are not applicable as discussed hereinabove and
category No.2 can only be made applicable in the case on
hand and so far as second category is concerned, a bare
reading of FIR makes out a prima facie cognizable offence
and hence, when allegations levelled against the present
accused by way of complaint in which charge sheet would be
filed at the end of investigation, there is no reason of
quashing the complaint at the threshold so far as the present
petitions are concerned. In short, it is the submission of
learned Senior Advocate, Mr.Naik, that when the petitioners
could not point out that their case falls either under category
No.1 or category No.3, then, so far as category No.2 is
concerned, the registration of FIR is mandatory and when the
said FIR discloses cognizable offence then, no preliminary
inquiry is permissible because the said stage comes only
when investigation is over.

10.1 In light of the above referred submission made by
learned Senior Advocate for the original complainant-Ramesh
Navadia, if the above referred paragraphs 9 to 11 of the
decision rendered in Saroj Kumar Sahoo(supra) are
perused, it would appear that in the year 1960, the Apex
Court in R.P.Kapur (supra) has mainly laid down three
categories of cases where inherent power can and should be
exercised to quash the proceedings, which have been shown
in paragraph No.9 as referred hereinabove. Thereafter, while

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deciding the case of Bhajan Lal(supra) in the year 1992 i.e.
approximately after 32 years, the Apex Court has enhanced
the illustrative categories to seven in number in its paragraph
No.102, which have been reproduced in paragraph No.10 of
the decision in Saroj Kumar Sahoo(supra). During the
above referred period of 32 years, the pattern of various
crimes have changed gradually and systematically in such a
manner that the Hon'ble Apex Court was forced to review
and then enhanced the scope and jurisdiction of the Court
concerned while exercising power under Section 482 of
Cr.P.C. and accordingly, category Nos.4,6 and 7 as shown in
paragraph No.102 of Bhajan Lal(supra) appear to have been
impleaded because in number of cases, the Hon'ble Apex
Court has observed that no hard and fast rule can be laid
down in regard to cases in which the High Court will exercise
its extraordinary jurisdiction of quashing the proceeding at
any stage. We all have experienced that since last 15 years
and more particularly after the year 2005, the white collar
crime related to land grabbing has increased manifold and
while dealing with such crime, day in and day out, persons,
who are concerned with legal field, have also further
experienced that while committing such white collar crime,
all the boundaries of moral principles of values and natural
laws have been side-tracked by them in such a way that at
times it is difficult to meet with the situation fixing ourselves
in certain fixed categories but while undergoing to deal with
such a situation and with a view to curb and to keep pace
with such crime, one has not to swim in shallow water but
the inner-dip dive of conscience is required which would
observe the picture and in turn definitely give correct
solution and answer.

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11. I have also gone through the latest judgment rendered
by the Hon'ble Apex Court in the case of Vijayander Kumar
and Others Vs. State of Rajasthan reported in (2014)3 SCC
389. Paragraph 8 of the same reads as under on which the
learned Senior Advocate for original complainant-Ramesh
Navadia has placed more reliance:

"8. On behalf of the appellants reliance has been
placed upon judgments of this Court in the case of
Thermax Limited and Others Vs. K.M.Johny and Others
and in case of Dalip Kaur and Others vs.Jagnar Singh and
another. There can be no dispute with the legal
proposition laid down in the case of Anil Mahajan vs.
Bhor Industries Limited which has been discussed in
paragraph 31 in the case of Thermax Limited (supra) that
if the complaint discloses only a simple case of civil
dispute between the parties and there is an absolute
absence of requisite averment to make out a case of
cheating, the criminal proceeding can be quashed.
Similar is the law noticed in the case of Dalip Kaur
(supra). In this case the matter was remanded back to
the High Court because of non-consideration of relevant
issues as noticed in paragraph 10, but the law was
further clarified in paragraph 11 by placing reliance upon
judgment of this Court in R.Kalyani vs. Janak C.Mehta. It
is relevant to extract paragraph 11 of the judgment which
runs as follows:

"11.There cannot furthermore be any doubt that the
High Court would exercise its inherent jurisdiction
only when one or the other propositions of law, as laid
down in R. Kalyani v. Janak C. Mehta is attracted,
which are as under:

"(1) The High Court ordinarily would not exercise
its inherent jurisdiction to quash a criminal
proceeding and, in particular, a first information
report unless the allegations contained therein,
even if given face value and taken to be correct in
their entirety, disclosed no cognizable offence.

(2) For the said purpose the Court, save and
except in very exceptional circumstances, would not
look to any document relied upon by the defence.

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(3) Such a power should be exercised very
sparingly. If the allegations made in the FIR
disclose commission of an offence, the court shall
not go beyond the same and pass an order in favour
of the accused to hold absence of any mens rea or
actus reus.

(4) If the allegation discloses a civil dispute,
the same by itself may not be ground to hold that
the criminal proceedings should not be allowed to
continue.""

11.1 Drawing attention on the above referred four
propositions of law more particularly clause Nos.2,3 and 4,
the learned Senior Advocate for the original complainant
reiterated his submissions as referred above and I have
considered the same. It is pertinent to note that so far as the
case on hand is concerned, the civil dispute was, as such,
not only disclosed but practically appeared to be over, which
will be discussed at a little later. It is to be noted that most
of the annexures to petitions under Section 482 of Cr.P.C. or
under Article 226 of the Constitution of India, have already
been tested by the various Courts including this High Court
as well as the Hon'ble Apex Court. Thus, in short, this Court
is alive with the mandate of the Hon'ble Apex Court that
while exercising jurisdiction under Section 482 of Cr.P.C., it
is not permissible to act as if it is a trial court but I am of the
view that the annexures/documents, which are already
tested by various Courts, are required to be considered in its
entirety so that clear conduct of all concerned can be
properly portrayed and in turn be appreciated.

12. Drawing attention towards pages 287 to 289, which is
the copy of the complaint dated 5-11-2007 filed by the
original complainant-Ramesh Navadia against Ritaben

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Nareshbhai Desai and Nareshbhai Kikubhai Desai accused
Nos.2 and 3 respectively of the complaint under challenge,
Mr.Naik submitted that as such, it is not correct on the part
of the petitioners to say that they have filed the complaint at
the initial point of time i.e. on 17-7-2007 and to have a
counter attack, the original complainant has subsequently
initiated criminal action with the sole intention to save his
skin. The said complaint alleged to have been filed by the
original accused herein on 17-7-2007 has not come on record
nor has any explanation for non-production of the same is
forthcoming on record and under the circumstances, said
fact is not believable is the submission made by learned
Senior Advocate for the original complainant-Ramesh
Navadia. In fact, the said accused Nos.2 and 3 herein have
taken criminal action on 17-9-2008 when I.C.R.No.777 of
2008 was registered before the concerned Police Station
approximately after 10 months from the complaint which had
been filed by the original complainant-Ramesh Navadia. In
respect of the complaint dated 5-11-2007 referred
hereinabove, no action was taken by the concerned police
official because as such, they were under influence of
original accused Nos.2 and 3 herein and hence on 19-9-2008,
the original complainant has filed another complaint (pages
299) against original accused Nos.2,3,4 and 6 herein
addressing to the Police Commissioner, Surat City, by
marking a copy thereof to DCB Police Station, Shri Parmar.
Inspite of filing of the above two complaints, the police has
not taken any action and hence, again on 10-5-2011 (page
160), third complaint was filed against all 13 accused
persons herein before the Police Commissioner, Surat City,
by marking a copy to six officials mentioned therein and as

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the police remained silent, original complainant herein has
preferred Special Criminal Application No.1778 of 2012(page
176) and this Court vide order dated 1-10-2012 has disposed
of the said petition observing that the original complainant
herein can make appropriate application and can have
recourse as provided under the Criminal Procedure Code
even for redressing his grievance regarding the complaint by
filing private complaint approaching the Court of learned
Magistrate. Said order was challenged before the Hon'ble
Apex Court by preferring Criminal Appeal No.55 of 2014.
Referring to the order dated 6-1-2014 passed by the Hon'ble
Apex Court in the said Criminal Appeal No.55 of 2014, copy
of which is at pages 181-186, the learned Senior Advocate,
Mr.Naik, vehemently submitted that the Hon'ble Supreme
Court has directed therein that registration of FIR is
mandatory after observing the report of Assistant
Commissioner of Police, who had conducted preliminary
inquiry and found that there is a disclosure of cognizable
offence. Thus, second category laid down in case of
R.P.Kapur(supra) is ruled out in the present case as, in the
present case, there is a prima facie case made out from a
bare reading of FIR. The above submission appears attractive
and vibrant but the same became hollow and distorted and it
would be characterized from the conduct of the original
complainant.

12.1 Before dealing with the abovereferred submissions
made by the learned advocates for the parties, the
annexures/documents at page Nos. 242 to 345, on which the
original complainant-Ramesh Navadia placed reliance and also
produced along with his affidavitinreply dated 08/07/2014, are

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required to be looked into. The description of the said
documents in a tabular form are as under :

S/N Date Description Remarks
1 02/07/99 Copy of Satakhat b/w. Hans Alleged to have been fraudulently
(Pg. 243 Kamal Grover and Ritaben Desai prepared by said Ritaben Desai,
248) (accused No. 2 herein) dated accused no. 2 herein.
02/07/99.

2 26/09/08 Copy of Explanation written Explanation against summons
(Pg. 255) by Hitesh Laiwala, Advocate, dated 25/09/08 issued u/s. 160 of
addressed to PSI, Umra Police CrPC.
Station, Piplod, City Surat.

3 09/12/99 Copy of Sauda Chiti alleged to Sale of land @ R/S. No. 596,
(Pg. 256) have b/w. Ramesh Vitthalbhai revised Survey No. 392 of Moje:
Navadiya and Hans Kamal Atam Vesu, Tal. Choryasi, Dist. Surat
Prakash Grover. (belonged to Gandabhai
Govanbhai) for Rs.72 lac out of
which Rs.20 lac paid in cash.

4 21/03/00 Copy of Receipt alleged to 1) Payment receipt of Rs.20 lacs of
17/05/00 have been made b/w. Hans abovereferred transaction paid in
(Pg. 257) Kamal Grover and Ramesh cash on 21/03/2000.
Vitthalbhai Navadiya
(complainant herein). 2) Further payment of Rs.20 lacs
received in cash on 17/05/2000 by
Hans Kamal Grover from Ramesh
Vitthalbhai Navadiya (original
complainant).

5 23/06/05 Copy of Consent Letter alleged As to: Transactions done by Hans
(Pg. 258 to have been issued by Kamal Grover as a POA regarding
259) Kaminiben Wd/o. Hans Kamal land in question and payment
Grover (accused No. 4) to the received by Kaminiben. Moreover,
heirs (08 in nos.) of Gandabhai also given No Objection as to new
Patel including Ramesh POA Babubhai Manjibhai Gabani
Navadiya showing him at serial declaring that no transaction done
No. 9. by her as an heir of Hans Kamal
Grover.

6 10/01/06 Copy of Consent Letter alleged As to: Transactions done by Hans
(Pg. 260 to have been issued by Ramaben Kamal Grover as a POA regarding
261) Wd/o. Hans Kamal Grover land in question and payment
(accused No. 7) to the heirs (08 received by Ramaben. Moreover,
in nos.) of Gandabhai Patel also given No Objection as to new
including Rameshbhai Navadiya POA Babubhai Manjibhai Gabani
showing him at serial No. 9. declaring that no transaction done
by her as an heir of Hans Kamal
Grover.

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S/N Date Description Remarks
7 03/02/06 Copy of Power of Attorney New POA for residuary works as to
(Pg. 262 (notarized on 20/03/06) issued land in question to be done by
268) by the heirs of Gandabhai Patel Babubhai Manjibhai Gabani.
(08 in nos.) in favour of
Babubhai Manjibhai Gabani.

8 21/11/06 Copy of Receipt No. 13831 For Registration Fees of
(Pg. 269) issued by the Subregistrar Rs.20,700/ towards Sale Deed
SuratCity1 (Athva) towards executed in favour of Rameshbhai
Sale Deed to Rameshbhai Vitthalbhai Navadiya (complainant
Vitthalbhai Navadiya herein).
(complainant herein).

9 21/11/06 Copy of Sale Deed executed in Towards sale of land being old
(Pg. 270 favour of Rameshbhai survey No. 596 and new survey
286) Vitthalbhai Navadiya No. 392 agricultural land paiki
(complainant herein) by 42593 sq. mtrs. paiki 12959 sq.
Babubhai Majibhai Gabani, POA mtrs. for Rs.13,61,000/, the
of heirs of Gandabhai Patel. amount fixed earlier and paid.

10 05/11/07 Copy of Complaint filed by 1) Allegations related to Satakhat
(Pg. 287 Rameshbhai Vitthalbhai dated 02/07/99 alleged to have
289) Navadiya against Nareshbhai been fraudulently prepared by said
(Pg. 290 Kekubhai Desai and Ritaben Ritaben Desai, accused no. 2
291) Nareshbhai Desai. Copy of list herein.
of Documentary Evidence
produced before Surat Zone2 2) It is also the claim of
Officer along with the above complainant Rameshbhai Navadiya
referred complaint. that he has initiated actions under
criminal law first in point of time
and the accused Nos. 2 and 3
herein had subsequently filed the
complaint.

11 19/09/08 Copy of Complaint by As regards Satakhat dated
(Pg. 292 Rameshbhai Vitthalbhai 02/07/99 alleged to have been
295) Navadiya before Commissioner, fraudulently prepared by said
Surat u/ss. 406, 420, 114, 34, Ritaben Desai, accused no. 2
120B, 465, 471 and 468 of IPC herein and forged Deeds alleged to
against i) Nareshbhai Kikubhai have been created by the accused
Desai, ii) Ritaben Nareshbhai as regards the land in question.
Desai iii) Kaminiben Hans
Kamal Grover and iv) Pankaj
Upendrabhai Desai.

12 06/12/08 Complaint by Rameshbhai As to threats being given to him by
(Pg. 300 Vitthalbhai Navadiya to the the antisocial elements to grab the
301) Police Commissioner, Surat. land in question from him and for
police protection.

13 23/01/09 Application from the office of As to grant of 'C' Summary in
(Pg. 302 Asst. Police Commissioner, 'E' complaint being IC.R. No.
303) Division, Surat to ld. Chief 777/2008 u/ss. 406, 420, 465,

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S/N Date Description Remarks
Judicial Magistrate, Surat. 467, 471, 120B of IPC registered
with Umra Police Station against
Rameshbhai Vitthalbhai Navadiya
and others.

14 17/05/11 Copy of Complaint given by As to threat of death given to the
(Pg. 304) Rameshbhai Vitthalbhai watchman of the complainant by
Navadiya before Police some unknown persons to vacate
Commissioner, Surat against the land in question.
unknown persons.

15 18/05/11 Copy of Receipt issued by Acknowledgment of receipt of
(Pg. 305) Nagrik Suvidha Kendra, Office complaint given by Rameshbhai
of Police Commissioner, Surat Vitthalbhai Navadiya dated 17
City to complainant 18/05/11.
Rameshbhai Vitthalbhai
Navadiya.

16 16/07/11 Copy of Inquiry Report of Inquiry Report as to third
(Pg. 307 Asst. Police Commissioner, 'E' complaint given by Rameshbhai
311) Div., Surat City to the Dy. Police Vitthalbhai Navadiya dated
Commissioner, Zone2, Surat 10/05/11 u/ss. 465, 467, 468,
City and document annexed 471, 406, 420, 114 and 120B of
thereto. IPC against 1 to 13 accused herein.

17 28/12/11 Copy of Order passed by the ld. Order passed below application
(Pg. 317 Chief Judicial Magistrate, Surat. referred at Sr.No.13 above of the
321) office of Asst. Police
Commissioner, 'E' Div., Surat dated
23/01/09 as to grant of 'C'
Summary in complaint being
registered vide IC.R. No.
777/2008.

18 07/06/12 Copy of Representation made For apprising true facts against
(Pg. 322 by Rameshbhai Vitthalbhai false complaint given by Ritaben
324) Navadiay to the Police Nareshbhai Desai on behalf of
Commissioner, Athava Lines, Dimple Films Pvt. Ltd.
Surat.

19 02/07/12 Copy of Statement of Statement in the complaint filed by
(Pg. 325 Rameshbhai Vitthalbhai Ritaben Desai.
327) Navadiya before the P.I., Umra
Police Station, Surat.

20 17/07/12 Copy of Further Statement of As regards his
(Pg. 328 Rameshbhai Vitthalbhai complaint/representation dated
330) Navadiya before the P.I., Umra 07/06/2012 filed before Police
Police Station, Surat. Commissioner, Athava Lines,
Surat.

21 15/04/14 Copy of Anticipatory Bail Anticipatory bail application in

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S/N Date Description Remarks
(Pg. 331 Application No. 982 of 2014 connection with Umra Police
336) filed by Ritaben Nareshbhai Station IC.R. No. 99 of 2014 for
Desai before the Principal the offence punishable u/ss. 465,
District and Sessions Court, 467, 468, 471, 406, 420, 114 and
Surat. 120B of IPC.

22 20/05/14 Copy of Application filed by Inviting attention of the Court to
(Pg. 338 P.I., Umra Police Station, Surat certain facts to be taken into
340) in the Court of ld. Additional considerion while deciding
Sessions Judge, Surat. Anticipatory Bail Application No.
982 of 2014 of Ritaben Desai
(accused No. 2 herein).

23 20/05/14 Copy of Affidavit of Affidavit bringing facts on record
(Pg. 341 Rameshbhai Vitthalbhai by original complainant
345) Navadiya in Anticipatory Bail Rameshbhai Vitthalbhai Navadiya.
Application No. 982 of 2014 of
Ritaben Desai (accused No. 2
herein).

12.2 Details of land in question, which had changed many

hands in quick succession i.e. at short intervals [21/11/2006 to

9/8/2009] are as under:

S/ Date Regn. No. Seller Purchaser Sale Price
n. of Sale (Rs.)
Deeds
1 21/11/0 13831
POA of heirs of Ramesh Vitthalbhai 13,61,000/
6 Sale
Gandabhai Navadiya (Original
Govanbhai, Nos. 1 Complainant herein)
to 8 in favour of
Babubhai Manjibhai
Gabani
1. 4813 Ramesh Vitthalbhai 100/
1 11/04/0 Amendmen Babubhai Manjibhai Navadiya (Original
7 t Deed Gabani Complainant herein)

2 03/04/0 4466
Ramesh Vitthalbhai Nathabhai Jivani 15,00,000/
7 Sale
Navadiya (Original
Complainant
herein)
2. 4818 Nathabhai Jivani 100/
1 11/04/0 Amendmen Ramesh Vitthalbhai
7 t Deed Navadiya (Original
Complainant

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herein)

3 25/03/0
8
5298 Nathabhai Jivani 1. Jitendra Vaghasiya 54,59,000/
31/03/0 Sale 25%
8 2. Rameshbhai
Vaghasiya 25%
3. Jayesh Govindbhai
Balar 50%

4 09/08/0 10894 1. Jitendra Keyur Manubhai 33,10,000/
9 Vaghasiya Balar
2. Rameshbhai
Vaghasiya (50%
share of the land in
question sold)

12.2(a) The observations made by this Court in para 19
of the order dated 25-10-2013 passed in Special Criminal
Application No.1008 of 2012, Criminal Misc. Application
No.4189 of 2012 and Criminal Misc. Application No.4191 of
2012 (reproduced in para 13.1 of this judgment) appear very
significant because so far as above referred seller and
purchaser are concerned, one can get idea regarding the
near and dear relations of all concerned in business of land
and they also being near and dear relatives of each other, as
narrated therein.

12.3 As referred hereinabove, during the course of
submissions, learned Senior Advocate for the original
complainant-Rameshbhai Navadia put much stress on the
point that the original complainant-Rameshbhai Navadia has
initiated criminal action first in point of time in comparison to
accused Nos.2 and 3 herein. The original complainant-
Rameshbhai Navadia had filed the complaint first on 5-11-
2007 and the next on 19-9-2008. Though it is the fact that no
document had come on record on behalf of original accused

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Nos.2 and 3 to show that they have moved criminal
machinery by filing complaint on 17-7-2007 first in point of
time as submitted by learned advocate, Mr.P.P.Majmudar for
accused Nos.2 and 3 herein, but if the complaint dated 5-11-
2007 filed by the original complainant-Ramesh Navadia,
copy of which is produced with annexures from pages 287 to
291, is perused, it would appear that the original
complainant-Rameshbhai Navadia himself has admitted
therein that prior to 5-11-2007, Nareshbhai Kikubhai Desai
and Ritaben Nareshbhai Desai, accused Nos.2 and 3 herein,
have made applications before Umra Police Station and tried
to misguide said police official and also mentioned that they
have produced satakhat along with the said false
applications. If description of the document at page 291 vide
Sr.No.10 is perused, it would appear that Nareshbhai
Kikubhai Desai has submitted an application before Police
Sub Inspector, Shri M.M.Parmar of Piplod Chowki, on 10-9-
2007. In both these documents prepared by the original
complainant-Rameshbhai Navadia, it is mentioned that the
accused Nos.2 and 3 herein have submitted false applications
before the concerned Police Stations. In my view, if one
would file an application drawing the attention of concerned
police official, it can be said that it is nothing but a complaint
alleging grievances against the person mentioned therein
and this is an admission on the part of the original
complainant himself and no further document is required to
come to the conclusion that the accused Nos.2 and 3 herein
have moved the criminal machinery first in point of time
compared to the original complainant-Rameshbhai Navadia.
No doubt, the complaint dated 17-7-2007 as submitted by
learned advocate, Mr.P.P.Majmudar is not forthcoming on

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record. If documents shown at Sr.No.13 as well as Sr.No.17
shown at para 12.1 of this order are perused, it can be seen
that though complaint dated 17-7-2007 referred above is not
forthcoming on record, it can satisfactorily be derived that
prior to 5-11-2007, which is the day on which original
complainant has filed complaint against accused Nos.2 and 3
herein, original accused Nos.2 and 3 have filed complaints
on 17-7-2007 as well as on 3-8-2007 against the original
complainant herein-Rameshbhai Navadia. The document at
Sr.No.13 shown at para 12.1 of this order is the application
dated 23-1-2009 written by Assistant Commissioner of Police,
'E' Division, to the Chief Judicial Magistrate, Surat, seeking
relief to grant 'C' summary in the complaint filed by accused
No.3 herein being I.C.R.No.777 of 2008 registered with
Umra Police Station against the original complainant-
Rameshbhai Navadia and others. Order dated 28-12-2011
passed below the said application at Sr.No.13 shown at para
12.1 by the learned Chief Judicial Magistrate, Surat, is at
Sr.No.17 shown at para 12.1. The entire order passed by the
learned Chief Judicial Magistrate dated 28-12-2011 below the
application requesting for 'C' summary is little bit lengthy
one, but it is necessary to reproduce its translated version
with a view to put the clear picture on record. Same reads
thus:

"Brief facts of the case of the complaint are that
complainant Nareshbhai Kikubhai Desai has purchased
land being revenue survey No. 392(B) of mauje village
Vesu by Satakhat i.e. Agreement to Sell from Hanskamal
Grovar on 2/7/99. Original owner of the said land was
Gandabhai Govanbhai Patel. During his life time, he had
sold this land to Hanskamal Grover on 14/12/88 and also
had executed a General Power of Attorney to Hanskamal
Grover regarding rights of this land and on the basis of
that General Power of Attorney, the complainant had

Page 33 of 59
R/SCR.A/1525/2014 JUDGMENT

purchased the said land from Hanskamal Grover.

Thereafter, on a dispute being taken place about
the said land, a Regular Suit No.702/91 came to be filed,
wherein original owner Gandabhai Govanbhai and all
members of his family had appeared in the suit, in which
the parties had arrived at a compromise which was taken
on record and accordingly the Ld. Court below decreed
the same on 11/10/99. On the same day i.e. on 11/10/99,
the original agriculturist Gandabhai Govanbhai and his
family members again executed a General Power of
Attorney in the name of Hanskamal Grover and in
support of this fact, original owner Gandabhai
Govanbhai, his son Kantibhai Gandabhai Patel and his
family members also signed and affirmed the same.
Original owner Gandabhai Govanbhai Patel had received
payment towards the land bearing revenue survey No.
392(B) of mauje Vesu for which he had also issued the
acknowledgment receipt on 26/10/99. Thus, the present
complainant had purchased 15000 sq. yards land out of
revenue survey No.392(B) of mauje village Vesu from
Hanskamal Grover by way of Agreement to Sell
(Satakhat), however, at the relevant time, the same was
not registered in the name of complainant in record of
rights. The complainant then got converted the said land
into non-agriculture land. All these facts are known to
original owner Gandabhai Govanbhai Patel and his family
members. Since then, the said land is in the possession
of present complainant.

Thereafter, Gandabhai Govanbhai Patel, the
original owner of the said land died in the year 2005,
however, his name was continued in the record of rights
of the said land and therefore, the names of his direct
heirs were entered in the record of rights. Thereafter, in
order to extort more money, heirs of original owner
Gandabhai Govanbhai - Kantibhai Gandabhai Patel, his
family members and their accomplices by executing false
power of attorney created forged document of the said
land of the complainant and on the basis of which they
repeatedly executed bogus deeds of this land to other
persons. Thus, the accused persons have fabricated
documents and used them as true documents and thus
they have committed breach of trust and fraud with the
present complainant. As all the accused persons have
conspired to usurp valuable land of the possession and
ownership of the complainant, he gave a written
complaint to the Police Commissioner, Surat on 17/7/07
to initiate legal procedure against all accused persons

Page 34 of 59
R/SCR.A/1525/2014 JUDGMENT

u/s 465, 467, 468, 471, 406, 420, 120(B), 114, 34 of IPC
and under Land Grabbing Act.

As the Office of C. P., Surat received the said
complaint, the C.P. had written a letter on 19/7/07 to
Umra Police Station to investigate the same and submit
report. In that connection, PSI of Piplod Police Chowki,
Umra Police Station sent a report to Deputy Police
Commissioner, Zone-2, Surat on 16/10/07, wherein it is
clearly stated that the accused persons have executed
false affidavits, forged documents and committed
criminal acts to extort more money and the fact is also
clear that it was requested therein to pass appropriate
order as the accused persons have committed the
offence. It appears clear from the record that thereafter,
the complainant of this case submitted a written
complaint on 3/8/07 to the Commissioner of Police,
Surat to take action against total 11 accused persons
regarding false and fabricated documents. Thereafter,
the P.I. of Umra Police Station has submitted a report to
Deputy Commissioner of Police, Zone-2, Surat on 1/11/07
regarding the complaint of the complainant, wherein it is
clearly stated that the said land is under the possession
of the complainant/ applicant and the accused persons of
this case are not in any way owner or have rights in the
said land. Despite that, false affidavits and forged
documents were prepared to extort more money of the
land and committed criminal act by using the same as
genuine documents and it is also stated therein to grant
permission to register offence against the accused
persons. Thereafter, Umra Police registered the FIR
against the 11 accused persons in I C. R. no. 777/08
under section 406, 420, 465, 467, 468, 471, 120(b) etc. of
the IPC and started the investigation. It is noteworthy
here that as per the report of I.O.- P.I. of Umra Police
Station dated 16/10/07 and report of P.I. of Umra Police
Station dated 1/11/07, report has been sent to the
Deputy Commissioner of Police, Zone-2, Surat that all the
accused persons have committed offence as stated in the
complaint. Both these reports are prepared after
considering the civil suits etc. and as per that
investigation, as the accused persons have committed
the offence, FIR has been registered against the 11
accused persons on 17/9/2008 by Umra Police vide I C.
R. No. 777/08.

Thereafter, on the basis of the report of the PSI-the
I.O;, the PI. Umra Police Station made a recommendation
on 08/12/08 to the ACP "E" Division Surat for granting

Page 35 of 59
R/SCR.A/1525/2014 JUDGMENT

"C"Summary in the case of this FIR, on this ground, the
ACP "E"Division, Surat has made this application before
this court on 23/01/09 for granting "C" summary in the
case of Ist C.R.No.777/08 of the Umra Police Station. The
complainant has raised a strong objection against this
and written arguments for not granting "C" Summary
have been submitted on 06/01/11 in this case of
investigation, this has been also taken in reading and
heard the ld. Advocate for the prosecution.

It is a notable fact in this case that in the case of
Ist C.R.No.777/08 of the Umra Police Station whatever
proceedings of investigation which have been done by
the I.O after the registration of FIR have been done
absolutely wrong against the report of the I.O dated. 16-
10-07 and report of P.I dated. 01-11-07, the report which
has been made to grant the 'C' Summary as no offence is
constituted in this case and it is a civil offence, is not
admissible considering the aforesaid facts.

Further, it is notable that a copy of the order which
has been passed on 25/11/11 in the case of RTS Appeal
No.343/08 in favour of the complainant, has been
produced in this case, said appeal was filed by the
accused No.10 in the present FIR, said appeal has been
rejected by the Court of RTS, Surat and in this RTS
appeal, the Revenue Court has stated that all the facts of
the complainant are true. Considering the order of the
said RTS appeal also, it is transpired on the record that
the accused persons have committed the offence, under
the circumstances as there is a civil dispute between the
parties, it is not just to call for C summary from the IO
and to make recommendation thereof and to give present
report to grant it and it is also not admissible. If the I.O
clearly states in his earlier reports on the basis of the
investigation that the offence is constituted, then he
must carry out the legal proceedings against the offence
because, prima facie it has been found from the ancillary
papers of "C" Summary that the accused persons have
committed offence. It is said to be the conscious
negligence towards duty to produce reasons of civil
dispute and not to carry out any proceedings against the
serious offensive act as per the complaint and it can not
be taken easily and in the large interest of justice, all
submissions made on behalf of the complainant being
lawful, admitted and following final order is passed:

ORDER

Page 36 of 59

R/SCR.A/1525/2014 JUDGMENT In the case of Ist C.R.No.777/08 of Umra Police Station, the application filed by the ACP ' E ' Division, Surat for granting "C" Summary and Final Report No.645/08 produced by the I.O in this case are hereby "rejected".

It is hereby ordered to complete the investigation in the case of Ist C.R.No.777/08 of Umra Police Station within two months from the date of this order by the P.I. Umara Police Station and submit the report in this court.

The D.C.P Zone-2 Surat is hereby directed to monitor the investigation of the offence of Ist C.R.No.777/08 of Umra Police Station.

A yadi of this order be written to the C.P. Surat.

The copy of whatever documentary evidences- correspondence which have been mentioned in this order be kept with this application and order and all the original papers of " C"Summary be returned to the PI Shri Umra Police Station for investigation.

Pronounced in the open court today on 28th December, 2011.

(emphasis supplied) "

12.4 The broad glaring facts considered by the learned Chief Judicial Magistrate are summarised below:

i) Nareshbhai Kikubhai Desai-accused No.3 herein, had filed complaint on 17-7-2007 before Police Commissioner, Surat, against the original complainant-Ramesh Navadia.

ii) The Commissioner of Police, Surat, had forwarded the complaint dated 17-7-2007 for inquiry and report vide letter dated 19-7-207.

iii) The PSI, Piplod Police Chowki of Umra Police Station, had forwarded inquiry report dated 16-10- Page 37 of 59

R/SCR.A/1525/2014 JUDGMENT 2007 to the Deputy Police Commissioner 'Zone-2', Surat.

iv) On 3-8-2007, Nareshbhai Kikubhai Desai-accused No.3 herein, had filed complaint in all against 11 accused for creating false, bogus and forged documents related to land in question.

v) PI, Umra Police Station, Surat, had forwarded his report to Deputy Police Commissioner, 'Zone-2', Surat, seeking approval/permission to register offence against the accused of said complaints on 1-7-2007. It is pertinent to note at this juncture that the said date 1-7-2007 is very important and significant. It is not under dispute that the original complainant-

Rameshbhai Navadia had filed complaint on 5-11-2007 and they are also claiming that they have initiated criminal action first in point of time, but the police had not registered his complaint because of pressure of accused Nos.2 and 3 herein.

vi) The Court had also considered on the basis of the report dated 16-10-2007 of PSI and report of PI dated 1-11-2007 of Umra Police Station, which had been forwarded to Deputy Police Commissioner, 'Zone-2', that civil suits have been filed against each other and accordingly, against 11 accused, FIR vide I.C.R.No.777 of 2008 was registered on 17-7-2008. The date 17-7- 2008 is very significant because thereafter on 19-7- 2008, the original complainant-Rameshbhai Navadia had filed second complaint against accused Nos.2,3,4 Page 38 of 59 R/SCR.A/1525/2014 JUDGMENT and 6 herein.

vii) It was then observed by learned Chief Judicial Magistrate that P.I., Umra Police Station, had requested on 8-12-2008 the Assistant Police Commissioner, 'E' Division, to grant 'C' summary and accordingly, the said Assistant Police Commissioner, 'E' Division, Surat, had submitted application as shown at Sr.No.13 of para 12.1 of this judgment.

viii) After considering each aspect, the learned Chief Judicial Magistrate had passed the order on 28-12- 2011 rejecting the application for 'C' summary at Sr.No.13 of para 12.1 filed by Assistant Commissioner of Police, 'E' Division, and the final report of I.O. No.645 of 2008 directing P.I., Umra Police Station, to complete investigation within two months and submit the report before said Court so far as I.C.R.No.777 of 2008 is concerned. It was also directed that monitoring of the said investigation related to I.C.R.No.777 of 2008 be carried out by DCP, 'Zone-2', Surat. It was also directed that keeping the photocopy of the original documents/correspondences are on record of the said case, all the original papers produced along with application shown at Sr.No.13 of para 12.1 be forwarded to P.I., Umra Police Station, for further investigation.

12.5 If the above order is perused, it would be clear that in the portion emphasised by this Court, it is clearly observed that the complainant, Nareshbhai Kikubhai Desai Page 39 of 59 R/SCR.A/1525/2014 JUDGMENT of the said proceeding had filed a written complaint on 17-7- 2007 before the Police Commissioner, Surat City, under sections 465, 467, 468, 471, 406, 420, 120(b), 114 and 34 of Indian Penal Code against all the accused therein out of which, the original complainant-Rameshbhai Navadia seems to be one of the main accused. It further appears from the said order that Umra Police has registered I.C.R.No.777 of 2008 on 17-9-2008. As stated above, the second complaint appears to have been filed by the original complainant- Rameshbhai Navadia on 19-9-2008. Both these dates are very significant and important because after registration of the complaints vide I.C.R.No.777 of 2008 on 17-9-2008, on the second day i.e. on 19-9-2008, the original complainant- Rameshbhai Navadia had filed second complaint against only four persons. Thus, it appears that on the basis of the complaint dated 17-7-2007 filed by accused Nos.2 and 3 herein, criminal action and police machinery was put into motion and therefore, the complaints filed thereafter by the original complainant-Rameshbhai Navadia on 5-11-2007 and 19-9-2008 are nothing but counterblasts to the complaints filed by the accused Nos.2 and 3 herein prior in point of time just to save his skin and that too after the land in question was sold much prior to 5-11-2007. The aspects as to whether land in question alleged to have been purchased by the original complainant-Rameshbhai Navadia through registered sale deed on 21-11-2006 and the said land appears to have been sold on 3-4-2007 will also be dealt with a little later. Under the above circumstances, the submission made by learned senior Advocate that it is the original complainant- Ramesh Navadia, who had first geared up the police machinery and after about more than 10 months on 17-9- Page 40 of 59

R/SCR.A/1525/2014 JUDGMENT 2008, the complaint was filed by accused Nos.2 and 3 herein cannot stand even for a second, as discussed hereinabove.

13. Thus, it appears that complaint dated 17-7-2007 filed by accused No.3 herein has been registered as I.C.R.No.777 of 2008 on 17-9-2008 and after the intervention of learned Chief Judicial Magistrate, Surat, who passed the order on 28- 12-2011, charge sheet had been filed on 15-6-2012 against the following persons:

(1) Names of the accused shown in Column No.1 of charge sheet:

1) Kantilal Gandabhai Patel

2) Rasik Kantilal Patel

3) Hitesh Kantilal Patel

4) Rajeshbhai Kantilal Patel

5) Babubhai Manjibhai Gabani

6) Nathabhai Ranchhodbhai Jivani

7) Keyur Manibhai Balar

8) Jayeshbhai Govindbhai Balar (Patel) (2) Names of accused shown in column No.2 of the said charge sheet:

1) Rameshbhai Vithhalbhai Navadia

2) Girishbhai Kantibhai Patel

3) Bhanuben, Widow of Kantibhai Gandabhai Patel

4) Nanduben, Widow of Ratilal Makanjibhai Patel and Daughter of Gandabhai Govanbhai Patel

5) Rakhiben alias Ragiben, Wife of Prakashbhai Patel and Daughter of Kantilal Gandabhai Patel Page 41 of 59 R/SCR.A/1525/2014 JUDGMENT 13.1 It appears that accused No.7, legal heir and representative of Gandabhai Patel and accused No.10 have respectively filed Special Criminal Application No.1008 of 2012, Criminal Misc. Application No.4189 of 2012 and Criminal Misc. Application No.4191 of 2012 and the petitioners in each of the above referred petitions had sought quashing of FIR registered vide Umra Police Station I-C.R.No.777 of 2008 and the same were disposed of by the common oral order dated 25.10.2013 by this Court. Relevant paragraph Nos.16 to 19 read as under:-

"16. Nonetheless, at this stage, when the court is considering a quashing petition after the charge-sheet has been filed, it would be relevant for the court to look into all the charge-sheet papers to examine whether there is any material to substantiate such allegation of forgery, thereby justifying invocation of the provisions of 465, 467, 468 and 471 of the Indian Penal Code. In this regard, a perusal of the documents on record reveal that the power of attorney has been executed by the heirs of the original owners in favour of Babubhai Manjibhai Gabani, based upon consent letters given by Kaminiben and Ramaben, the widows of Hans Kamal Grover. However, Ramaben Hans Kamal Grover has in her statement before the police stated that she has not executed any such consent letter and that Rameshbhai Navadia has fabricated such consent letter without her knowledge. Thus, there is material on record to suggest that the consent letter issued by Ramaben Hans Kamal Grover has been fabricated. Under the circumstances, even if it were to be accepted that the power of attorney executed by the heirs of the original owner, is not a forged document, the material on record does reveal that the consent letter issued by Ramaben is a forged one. Therefore, at this stage, while considering a petition for quashing, prior to the framing of the charge, it is not possible for the court to say that the offence of forgery is not made out on the material on record.

17. Insofar as the offence of cheating as envisaged under section 420 IPC is concerned, on the allegations Page 42 of 59 R/SCR.A/1525/2014 JUDGMENT made in the first information report, it is apparent that the original owner and his heirs had induced the first informant to part with valuable consideration, prior to giving up their rights in the disputed land. However, thereafter, the original owners have backed out and have executed another power of attorney for execution by a sale deed in favour of Rameshbhai Navadia, in breach of the agreement with the first informant. Under the circumstances, at this stage it cannot be said that the accused, right from the inception, did not have any intention of cheating the first informant, so as to rule out commission of the offence under section 420 IPC.

18. As regard commission of the offence under section 406 IPC, on the allegations made in the first information report, it is apparent that an agreement had been entered into between the original land owner and his heirs and the first informant Hans Kamal Grover and Anil Taneja to the effect that the first informant would pay consideration to the original owner and Anil Taneja whereupon the original owners and Anil Taneja would give up all right, title and interest in the subject land. It was pursuant to such agreement that the consideration had been paid by the first informant to the original owners and Anil Taneja. However, since at the relevant time, it was not possible to transfer the land, a power of attorney came to be executed in favour of Hans Kamal Grover.

However, upon the death of Hans Kamal Grover the heirs of the original land owner sold the land to Ramesh Navadia. Thus, it cannot be stated that the offence of criminal breach of trust as envisaged under section 406 IPC is not made out.

19. On behalf of the petitioner in Special Criminal Application No.1008/2012, it has been contended that he is a bonafide purchaser who has purchased the land from the third purchaser. That originally, the land was purchased by Rameshbhai Navadia who in turn had sold the land to Nathabhai Ranchhodbhai Jivani. Nathabhai Ranchhodbhai Jivani had sold 50% of the land to Jitendra Shamjibhai Vaghasia and Rameshbhai Shamjibhai Vaghasia, from whom the said petitioner had purchased the land with valuable consideration. In this regard, though in the first information report, no allegation has been made against the said petitioner, in Page 43 of 59 R/SCR.A/1525/2014 JUDGMENT the charge-sheet, he has been arraigned as accused No.7. From the statement of Jitendra Shamjibhai Vaghasia recorded on 24th March, 2012 by the Investigating Officer, it is revealed that Nathabhai Ranchodbhai Jivani along with his group and relatives sits at the office by the name of Balar Exports and all of them are engaged in the business of sale and purchase of land. The said Jitendrabhai along with his brother Rameshbhai, time and again used to visit their office (Balar Exports), where Nathabhai Ranchodbhai Jivani, Nathabhais brother-in-law Manubhai Jivrajbhai Balars son Keyur, Keyurs paternal uncles son Jayesh Govind Balar and Keyurs maternal uncle Ramesh Vithalbhai Navadia as well as Keyur and Jayeshs fathers first cousin Babubhai Gabani were all closely connected with each other and together used to handle the business of dealing in land as partners. That it was at the instance of all the accused that he and his brother had purchased the disputed land and it was when they found that the title of the land was not clear and that civil proceedings were pending in respect thereof, that they had approached the said accused persons, and at their instance they had sold the land to the petitioner Keyurbhai Balar, who was also one of their accomplices. Thus, in the present case when section 120B IPC has been invoked, having regard to the material on record, it cannot be stated that the offences as alleged in the first information report are not made out. Under the circumstances, no case has been made out so as to warrant interference in exercise of powers under section 482 of the Code."

[emphasis supplied] From the above observations made by the Court, we can see the close connection with each other who used to handle the business of dealing in land matters as partners. The petitioner Keyurbhai Manubhai Balar was accused No.7, who alleged to have purchased the land in question from Jitendra Vaghashia and Ramesh Vaghashia. Petitioners of Criminal Misc. Application No.4189 of 2012 referred hereinabove were the legal heirs and representatives of deceased Page 44 of 59 R/SCR.A/1525/2014 JUDGMENT Gandabhai Patel. Rameshbhai Vitthalbhai Navadiya-original complainant was the petitioner of Criminal Misc.Application No.4191 of 2012.

14. As referred above, the learned Chief Judicial Magistrate had passed the order on 28-12-2011 below the application which was filed by the Assistant Commissioner of Police, 'E' Division, as mentioned at Sr.No.17 of para 12.1 of this judgment. Meanwhile, on 10-5-2011, the original complainant-Rameshbhai Navadia, had filed third complaint which was investigated by Assistant Commissioner of Police, 'E' Division, and the said official has prepared the report on 16-7-2011 as mentioned at Sr.No.16 of para 12.1 of this judgment and forwarded the same to Deputy Commissioner of Police, 'Zone-2', Surat City, and ultimately, Deputy Commissioner of Police, 'Zone-2' and Additional Commissioner of Police, Surat, went through the same and gave a decision expressing their opinion and said report has been ordered to be filed. Now drawing attention of this Court on the above referred report of Assistant Commissioner of Police dated 16-7-2011, learned Senior Advocate for the original complainant-Rameshbhai Navadia further drew attention of this Court on the document mentioned at Sr.No.2 in para 12.1 and submitted that same is the explanation given by advocate, Mr.Hitesh Laiwala, in response to summons dated 25-9-2008 issued under section 160 of Cr.P.C. It is clear from the same that he has no knowledge regarding the satakhat between Hans Kamal Grover and Ritaben Desai alleged to have been executed on 2-7-1999. It is the submission of learned Senior Advocate for the original complainant herein that when advocate, Mr.Hitesh Laiwala, Page 45 of 59 R/SCR.A/1525/2014 JUDGMENT has specifically stated in his explanation clarifying that said satakhat was not handed over to him for his custody and he has no knowledge about the said satakhat, then it gives all the strength to the allegations made by the original complainant-Rameshbhai Navadia that said satakhat has been fraudulently prepared by Ritaben Desai, accused No.2 herein. In light of this submission, I have gone through the preliminary inquiry report dated 16-7-2011 prepared by Assistant Commissioner of Police, 'E' Division, Surat, as well as copy of explanation of advocate, Mr.Hitesh Laiwala, dated 26-9-2008 at page 255 and in turn, satakhat dated 2-7-1999 mentioned at Sr.No.1 in para 12.1. It is mentioned in para 10 of the said satakhat dated 2-7-1999 that any dispute between the parties relating to satakhat will be referred to the arbitrator, advocate, Mr.Hitesh Laiwala, in case of Hans Kamalbhai and to the arbitrator, advocate, Mr.K.C.Desai, in case of Ritaben, accused No.2 herein. It is mentioned in para 12 of the said satakhat that for the safety of both the parties, the said satakhat should remain in the custody of advocates, Mr.Hitesh Laiwala and Shri K.C.Desai after putting signatures. I am aware of the fact that right now I am not investigating whether the said satakhat dated 2-7-1999 is genuine or fraudulent but when during the course of investigation, if concerned Assistant Commissioner of Police, 'E' Division, or any other police official succeeded in getting explanation of advocate, Mr.Hitesh Laiwala, who was for Hans Kamal Grower, then in that case, in my view, he should put his effort to get such explanation or statement related to advocate, Mr.K.C.Desai, who would remain as arbitrator on behalf of Ritaben Desai, accused No.2 herein. In short, it appears that halfheartedly, preliminary report appears to Page 46 of 59 R/SCR.A/1525/2014 JUDGMENT have been prepared by the Assistant Commissioner of Police, 'E' Division, dated 16-7-2011, whose earlier report dated 23- 1-2009 for granting 'C' summary in complaint registered vide I.C.R.No.777 of 2008 was heavily contested by accused Nos.2 and 3 herein is the submission of learned advocate, Mr.Majmudar for the petitioners and there appears force and substance in it. If this issue is looked at in somewhat different way considering the dates of satakhat between Hans Kamal Grover and Ritaben Desai, as referred at Sr.No.1 of para 12.1 and considering the copy of sauda-chiti between complainant-Rameshbhai Navadia and Hans Kamal Grover dated 9-12-1999 as mentioned at Sr.No.3 of para 12.1, it is clear that said sauda-chiti appears to be subsequent in point of time and if at all any fraud has been committed by Ritaben Desai, accused No.2 herein, then the said fraud was alleged to have been committed by her on 2-7-1999 on which date, there was no transaction between Hans Kamal Grover and complainant-Ramesh Navadia. Moreover, it is important to note that neither Hans Kamal Grover or his heirs nor heirs of Gandabhai Govanbhai nor has any other person alleged that fraudulent transaction has been made by Ritaben Desai, accused No.2 herein, except the original complainant- Rameshbhai Navadia. When the persons, who are directly affected, have no grievance regarding the said satakhat dated 2-7-1999 then, in my view, the original complainant- Ramesh Navadia, who has purchased the land in question on 21-11-2006 and sold the same on 3-4-2007 as mentioned in para 12.2 hereinabove, has no right at all because on similar allegation, the original complainant-Rameshbhai Navadia has filed Special Civil Suit No.262 of 2011 against most of the accused herein, which was rejected under Order-7 Rule-

Page 47 of 59

R/SCR.A/1525/2014 JUDGMENT 11 of Civil procedure Code vide order dated 22-6-2012. Referring to para 10 of the said suit at page 139, the original complainant-Rameshbhai Navadia has sought a relief inter alia to declare that the defendants-original accused Nos.2 and 3 herein have no interest over the suit property and as per the sale deed dated 21-11-2006 read with Correction Deed dated 11-4-2007, the plaintiff of the said suit was only the owner and in possession of the suit property. Another prayer sought by the original complainant-Rameshbhai Navadia was to the effect that transactions of satakhat dated 2-7-1999 are null and void as the same were fraudulently created in collusion with rest of the defendants of said suit and hence, the Confirmation Deed and Assignment Deed respectively registered vide Nos.13700 and 8716 be declared as false, illegal, without any force and have been created without any consideration and hence, to be declared as null and void. Third prayer was to restrain the defendants from creating any obstruction in the land in question resulting into nullifying the ownership and possession of the plaintiff of said suit. It is not under dispute that in the said suit, the defendants more particularly accused Nos.2 and 3 have appeared and contended inter alia that Rameshbhai Navadia has already transferred the property vide Deed No.4466 dated 3-4-2007 read with amendment in the sale deed No.4818 dated 11-4-2007 to Nathabhai Ranchhodbhai Jivani, a third party to the said suit, and accordingly, the plaintiff ceased to be the owner having no right, title or interest in the property and having suppressed the said material facts in the said proceedings, the plaintiff of the said suit has no right to adjudicate the issue raised by him in the said suit. It is pertinent to note that on merits, the Court has decided the Page 48 of 59 R/SCR.A/1525/2014 JUDGMENT said application and passed order on 22-6-2012 below the application Exh.21 whereby the plaint was rejected under Order-7 Rule-11(a) of Civil Procedure Code, 1908. It was also directed in the said order that the plaintiff to pay Rs.2,000/- by way of compensatory costs for initiating such vexatious proceedings against the defendants under section 35A of Civil Procedure Code, 1908. It is to be noted that said order has been challenged by the original complainant- Rameshbhai Navadia by way of First Appeal No.2400 of 2012 (page 146) wherein a Division Bench of this Court decided the said issue vide order dated 31-7-2012 on merits by a detailed order. Relevant paras 13 to 19 of the said order read as under:

"13. If the aspect of material facts it to be considered as observed earlier, it appears to us that the factum of transfer of the property and cessation to have any interest in the property after the execution of the registered sale deed in favour of Nathabhai Ranchhodbhai Jivani by the plaintiff, was material fact having direct bearing to the prayers made in the plaint. Further, if the said fact is admitted by the plaintiff before the trial court and so is before this court, if considered with the averments made in the plaint read with the statutory provisions of the Transfer of Properties Act, it cannot be said that there was any valid cause of action in law for the plaintiff to file the suit for the reliefs pertaining to the suit property which is already transferred and all interest is conveyed in favour of some other party as back as in the year 2007.

14. A faint attempt was made by the learned counsel appearing for the appellant to contend orally that it is the duty of the plaintiff to convey clear title in favour of the purchaser Nathabhai Ranchhodbhai Jivani and therefore, to clear out the clog over the title of the plaintiff as they existed prior to the sale deed, the suit has been filed with bonafide purpose.

15. We cannot countenance the submission for two Page 49 of 59 R/SCR.A/1525/2014 JUDGMENT reasons; one is that there is not a whisper for such purpose in the averment made in the plaint nor such was contended before the lower court. The another aspect is that once the property is transferred and the vendor has ceased to have any interest over the property, if any clog further continues in the property, the purchase may have remedy available in law not the vendor who has ceased to have interest in the property.

16. The attempt was made by the learned counsel for the appellant to contend that the factum of transfer of the property by registered sale deed dated 05.04.2007 read with the correction deed dated 11.04.2007 be permitted to be on record by allowing the plaintiff appellant herein to amend the plaint and therefore, it may not result into suppression of any fact which as per the plaintiff is not material fact but even if found to be material fact, it may not be said as suppression of the material fact.

17. The surprising aspect is that no reply is filed before the lower court to the application exhibit 21 by the plaintiff nor any motion was made before the lower court for amendment in the plaint prior to the hearing of the application exhibit 21 or even simultaneously. Under these circumstances, when the suit is already rejected, we cannot grant such permission for amendment of the plaint, but the fact remains that the statement is made on behalf of the plaintiffappellant for admission of the fact of transferring the property by registered sale deed in favour of Nathabhai Ranchhodbhai Jivani is considered to find out as to whether there is any valid cause of action in law to the plaintiff and also to consider as to whether the lower court could be said as justified in exercising the power under Order 7 Rule 11(a) of CPC or not.

18. In view of the aforesaid, we find that the ultimate conclusion recorded by the lower court for rejection of the plaint since there was no valid cause of action does not call for any interference. The cost in our view has rightly been awarded by the lower court.

19. We leave the party to resort to the appropriate proceedings if otherwise permissible in law for appropriate action for suppression of material fact or misuse of the process of law or otherwise. At that stage, the rights and contentions of both the sided shall remain open."

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14.1           As observed by the Division Bench of this Court in

para 19 above, appropriate action for suppression of material fact or misuse of the process of law or otherwise was kept open to be resorted to by way of appropriate proceedings, if otherwise permissible in law. On the above issue, learned Senior advocate for the original complainant-Rameshbhai Navadia submitted that the Court concerned has dismissed the suit on technical plea under Order-7 Rule-11(a) of CPC but the issue involved in the said suit was not adjudicated by trial and not decided on merits and, therefore, it has nothing to do with the complaint preferred by the original complainant-Rameshbhai Navadia and that too after getting sanction of the Hon'ble Apex Court. I do not find any substance and merit in the said submission because, as such, if the order of the Division Bench of this Court in First Appeal No.2400 of 2012 is perused, it can be seen that Division Bench has exposed the conduct of the original complainant- Rameshbhai Navadia and the portion reproduced hereinabove speaks itself a lot.

14.2 At this juncture, it is important to note that the land which was purchased by the original complainant- Rameshbhai Navadia on 21-11-2006 through registered sale deed appears to have been sold by Power of Attorney Holder of Gandabhai Govanbhai which was alleged to have been given by said heirs in favour of Babubhai Manjibhai Gabani. On perusing para 12.2 above, it would reflect details of land in question changing hands in quick succession i.e. in between the period 21-11-2006 and 9-8-2009. From the said tabular form, it is clear that after 3-4-2007, or to be precise, Page 51 of 59 R/SCR.A/1525/2014 JUDGMENT after 11-4-2007, as the land in question was sold by the original complainant-Rameshbhai Navadia to Nathabhai Jivani, all interest in the land in question has been transferred and the vendor i.e. Rameshbhai Navadia has ceased to have any interest over the property and if at all any other grievance exists in the said property, then the new purchaser may have some remedy available in law but not the vendor, who ceased to have interest in the property. So far as above referred order passed in First Appeal arising from Special Civil Suit filed by the original complainant- Rameshbhai Navadia is concerned, as it does not appear from the submission of learned Senior Advocate for the original complainant-Rameshbhai Navadia that order passed in First Appeal has been challenged before any higher forum and accordingly, said litigation has attained finality.

15. It is not under dispute that Anil Dharamsing Taneja has filed Regular Civil Suit No.702 of 1991 before the Court of 5th Joint Civil judge, Surat, against Gandabhai Patel and Hans Kamal Grover. A compromise was arrived at between the parties to the said suit and a decree was also passed on 25-10-1999 on the strength of said compromise and permanent injunction was also granted. It is the case of original accused Nos.2 and 3 herein that in pursuance of said compromise, Gandabhai and his family received total consideration from Shri Hans Kamal Grover and they handed over all rights stating it on affidavit that compromise is acceptable to them. Likewise, by the said compromise, Anil Taneja vested all rights in respect of said land to Shri Hans Kamal Grover. Now for the reasons best known to Shri Anil Taneja, he has filed Recall Application No.40 of 2012 to Page 52 of 59 R/SCR.A/1525/2014 JUDGMENT recall order dated 25-10-1999 in Civil Suit No.702 of 1991 referred above. Said application was rejected on 19-9-2013 after hearing the parties. Special Civil Application No.14810 of 2013 preferred against the said order was dismissed by judgment and order dated 12-8-2014 by this Court. When this matter was kept as CAV, on 26-9-2014, learned advocates, Mr.P.P.Majmudar and Mr.A.M.Dagli for the original accused submitted that when the order passed in Special Civil Application No.14810 of 2013 was challenged by Anil Taneja, the petitioner therein, before the Hon'ble Apex Court, he did not succeed there and accordingly, order passed by this Court against Anil Taneja has attained finality. I have conveyed both of them to come with advocate for the otherside that day itself but they did not come before this Court till rising of the Court at 5.00 p.m.

16. It is not under dispute that so far as the land in question is concerned, accused Nos.2 and 3 herein have filed Regular Execution Application No.12 of 2011 before the Court of learned Senior Civil Judge, Surat, for execution of the decree dated 25-10-1999 passed in Regular Civil Suit No.702 of 1991. If tabular format in para 12.2 above is perused, it would appear that on 9-8-2009 vide registered sale deed, 50% share of the land in question of Jitendra Vaghasia and Rameshbhai Vaghasia was alleged to have been sold and transferred to Keyur Manubhai Balar. Said subsequent purchaser has filed an application to join them as respondents in above-referred execution proceedings, which was rejected vide order dated 14-6-2012 against which, Special Civil Application No.9630 of 2012 was preferred wherein this Court vide order dated 25-9-2012 has observed Page 53 of 59 R/SCR.A/1525/2014 JUDGMENT that purchasers of the said land in question are not bona fide purchasers. Paragraphs 5 and 6 of the said order read as under:

"5 The contention of the learned counsel for the petitioners is to be examined in the context of the factual scenario of the case, which establish that the petitioners are third purchasers after the decree was passed by the trial court in Special Civil Suit No.702 of 1991 which came to be decreed as back as on 25.10.1999 and the said decree attained finality. In the above circumstances, the assignees of the decree have undertaken execution proceeding in which the petitioners wanted to be joined as party respondents to protect their interest, which was considered by the Court below by examining the material on record including independent action taken by the petitioners by filing Special Civil Suit No.445 of 2011 as well as another similar situated person, like the petitioners, also filed Special Civil Suit No.262 of 2011 and that no relief was granted in the above suits. So far as the finding of the Court below about awareness and knowledge of the decree passed by the trial court while purchasing the suit property thereafter by the petitioners is concerned, it remains undisputed and, in the above context, if the Court below has held that the petitioners are neither necessary nor proper parties in the execution proceedings, it cannot be said that the order passed by the Court below is illegal. As regards the reliance placed by the learned counsel for the petitioners in Babulal vs. Hazarilal Kishooorilal and others, reported in AIR 1982 SC 818; Mayaghar Mallik vs. Smt. Laxmi Mallik and others, reported in AIR 1999 Orissa 81; and Somnath Banerjee vs. Smt. Arati Rani Chakraborty, reported in AIR 2010 Gauhati 187, it is true that the word 'proceeding' may also include execution proceeding and Order 1 Rule 10 of the Code of Civil Procedure may have its applicability, but, when, considering the facts and circumstances of the case, on merit it is held by the Court below that the petitioners are neither necessary nor proper parties in the execution proceedings, such an order does not warrant any interference by this Court in exercise of power under Articles 226 and 227 of the Constitution of India.

6. In the result, this petition fails and is summarily rejected."

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                                           (emphasis supplied)

Entry to that effect was also mutated in the revenue record being Entry No.6987. Moreover, said subsequent purchasers have preferred Special Leave Petition No.20848 of 2013 against the order of this Court, which has also been dismissed vide order dated 2-7-2013.

17. As referred hereinabove, learned Senior Advocate for the original complainant-Rameshbhai Navadia drew attention of this Court on the order dated 6-1-2014 passed by the Hon'ble Apex Court in Criminal Appeal No.55 of 2014 [arising out of SLP (Cri) No.591 of 2013] and submitted that when the Hon'ble Apex Court has considered the preliminary inquiry report dated 16-7-2011 and permitted the original complainant-Rameshbhai Navadia giving specific direction to file FIR, then, it is clear that cognizable offence appears to have been there in the allegations levelled therein by the original complainant-Rameshbhai Navadia and this Court cannot go against the observations made by the Hon'ble Apex Court. On going carefully through the above referred order passed by the Hon'ble Apex Court, I am of the view that putting sole reliance on the decision of the Constitution Bench passed in Writ (Cri.) No.68 of 2008 in Lalita Kumari Vs. Government of Uttar Pradesh, it has been directed to register the case but at the same time clarifying that no opinion has been expressed on merits and also further clarifying that it is open for the respondents to avail of the remedy available in law to challenge the FIR. Thus, it cannot be said that this Court has made any attempt to go against the order of the Hon'ble Apex Court.

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18. As discussed and as shown in tabular form in para

12.2 hereinabove, it is not under dispute that the Power of Attorney Holder of heirs of Gandabhai Patel namely, Babubhai Manjibhai Gabani, transferred the land in question to the original complainant-Rameshbhai Navadia. After registration of I.C.R.No.777 of 2008 and after the order passed by the learned Chief Judicial Magistrate, Surat, dated 28-12-2011 on the application submitted by Assistant Commissioner of Police, 'E' Division, Surat, charge sheet was filed on 15-6-2012 by the police, as referred hereinabove. In the month of May, 2012, the Power of Attorney holder, Babubhai Manjibhai Gabhani(Gabani) has preferred Criminal Misc. Application No.5160 of 2012 before this Court under Section 439 of Cr.P.C. Relevant paragraph No.2 of the said order dated 7-5-2012, copy of which is at pages 120 to 122, passed by this Court reads as under:

"2. Learned Senior Counsel Mr. S.V. Raju appearing for the applicant submits that as far as the present applicant is concerned, he is the Power of Attorney (POA) holder which was executed by the deceased -

Gandabhai in favour of Babubhai. It is submitted that as far as signature of Babubhai is concerned, it is not in dispute that no allegations are levelled against him stating that he had affixed a false signature or created or forged a document. Learned Senior Counsel Mr. Raju also submits that the applicant herein will give his full cooperation if any proceedings are initiated for cancellation of the alleged Sale Deed which took place between the present applicant and the other accused (purchasers). Considering the above aspect, it is submitted that the applicant may be enlarged on bail."

                                                     (emphasis supplied)


18.1           From the above paragraph No.2, it appears that


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learned Senior Counsel, Mr.S.V.Raju, has appeared on behalf of the applicant-Babubhai Manjibhai Gabhani(Gabani), who preferred Cri.Misc.Appln.No.5160 of 2012. Looking to the said order, it appears that learned Senior Counsel has submitted before the Court that as far as Babubhai Manjibhai Gabhani(Gabani) is concerned, he is a Power of Attorney (PAO) Holder which was executed by the deceased Gandabhai in favour of Babubhai. It was further submitted therein that as far as signature of Babubhai Manjibhai Gabhani(Gabani) i.e. Power of Attorney is concerned, it is not in dispute. It was lastly submitted therein by learned Senior Counsel that applicant-Babubhai Manjibhai Gabhani(Gabani) will give his full co-operation, if any proceedings are initiated for cancellation of the alleged sale deed, which took place between the applicant therein and other accused (purchasers) i.e. original complainant-Rameshbhai Navadia herein and ultimately requested that he be enlarged on bail in the said circumstances. Moreover, learned counsels for the parties have not pressed for further reasoned order and accordingly, said application under Section 439 of Cr.P.C. filed by the Power of Attorney, Babubhai Manjibhai Gabhani(Gabani), was granted by this Court. I am of the view that when learned Senior Counsel has submitted that the person, who has sold the property on the basis of Power of Attorney will give co-operation if any proceedings are initiated for cancellation of alleged sale deed meaning thereby so far as the said sale deed is concerned, the applicant-Babubhai Manjibhai Gabhani(Gabani) was within the knowledge that by way of fraudulent action, the land in question had been transferred and accordingly, it appears that he had instructed learned Senior Counsel to submit as Page 57 of 59 R/SCR.A/1525/2014 JUDGMENT stated hereinabove. If any advocate will submit on the above referred line, then also, it should be considered that after taking instructions on the said issue, he is making the submission and when learned Senior Counsel makes the submission as referred above, it carries more weight. In short, the above referred entire conduct in the transactions made by the original complainant-Rameshbhai Navadia, who appears to have initiated action by taking the help of above referred Babubhai Manjibhai Gabhani(Gabani), Power of Attorney Holder of heirs of Gandabhai Patel, and the subsequent transfer of land in question, as discussed hereinabove, will speak volume. Thus, it is to be noted that after selling the land in question on 3-4-2007, the original complainant-Rameshbhai Navadia realised that criminal action initiated by accused Nos.2 and 3 herein being prior in point time would land him in great trouble and, therefore, faint attempts have been made by him by filing complaints on 5-11-2007, 19-9-2008 and 10-5-2011, just to save his skin and by way of counter, as discussed above. The halfhearted allegations made in the said three FIRs or complaints do not inspire confidence and on the basis of the same, in my view, no prudent person can ever reach to a just conclusion that there is sufficient ground for proceedings against the accused, except the Assistant Commissioner of Police, 'E' Division, Surat, who still thought that criminal liability is there because of collusion of original accused herein, inspite of the fact that civil actions in which identical stand was taken by all concerned had attained their finality after having the final verdict by this Court as well as the Hon'ble Apex Court. I am of the view that just to hide their malicious actions, as discussed at length hereinabove, and with an Page 58 of 59 R/SCR.A/1525/2014 JUDGMENT ulterior motive to satisfy their ego and to get more amount from the otherside which had been invested by them in the litigations, a final attempt of criminal threat appears to have been conveyed by him to the otherside in which the original complainant-respondent No.2 herein-Mr.Rameshbhai Navadia, has failed. Under the circumstances, all the present petitions deserve to be allowed.

19. All the Special Criminal Applications and Cri. Misc. Application are allowed. Complaint being C.R.No.I-99 of 2014 registered with Umra Police Station, Surat, and all consequential proceedings thereunder are quashed and set aside qua the petitioners of the above referred petitions and application. Rule is made absolute to the aforesaid extend.

19.1 It is clarified that as the observations in these petitions having necessarily made for the purpose of deciding the issues involved in these petitions may not prejudice the parties in their pending litigation.

19.2 Registry is directed to place a copy of this judgment in each matter.

(G.B.SHAH, J.) RADHAN Page 59 of 59

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