Gujarat High Court
Shamjibhai Hirjibhai ... vs State Of Gujarat on 23 January, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.MA/23979/2019 ORDER DATED: 23/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 23979 of 2019
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SHAMJIBHAI HIRJIBHAI BANBHANIYA(SORTHIYA)
Versus
STATE OF GUJARAT
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Appearance:
MR MIHIR VAKHARIYA(8336) for the Applicant(s) No. 1
MR AFTABHUSEN ANSARI(5320) for the Respondent(s) No. 2
MR.HARDIK MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 23/01/2023
ORAL ORDER
1. By way of the present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the petitioner has prayed for quashing and setting aside the impugned FIR being C.R.No.I-211 of 2019 registered before Anjar Police Station, Dist.: Gandhidham, Kachchh (East) for the offfence punishable under Sections 465, 468 & 471 of the Indian Penal Code as well as other consequential proceedings arising out of the aforesaid FIR qua the petitioner.
2. Mr. Mihir Vakhariya, learned advocate for Page 1 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined the petitioner submits that the FIR is filed by the brother and the reason for delay in filing the FIR itself suggest that the complainant was staying at Dubai.
2.1 Advocate Mr.Vakharia submits that the compliant has been lodged on the ground that he is doing labour work and frequently goes to Oman th (Masqat) for the same, and lastly came back on 9 June, 2019 from Oman, and since then, he is India. 2.2 Advocate Mr.Vakharia referring to the FIR submits that the delay in filing of the FIR cannot be taken into consideration since the complainant's son was holding the power of attorney. The issue which was raised regarding the ancestral land, Survey No.62/6, where the name of all the heirs of Devrambhai Hirjibhai Banbhaniya (Sorathiya) i.e. complainant, brothers, sisters and mother runs in the revenue record. The son of the complainant on the basis of power of attorney had written one application to Anjar Police Station and in that Page 2 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined connection Advocate Mr.Vakharia submits the complainant's statement was recorded on 08.05.2019, on the basis of that, he got a call from his son, who had informed him that the complainant's brother Shamjibhai Hirjibhai Sorthiya, the present petitioner has started work for getting electricity connection in the ancestral land, and at that time, complainant informed his son that he had never applied nor has given any permission for the electric connection and told his son that he would look into the complaint after he returns back in September, 2018. 2.3 Advocate Mr.Vakharia submits that as per the complainant, he had made RTI Application regarding the electric connection and got the information that in the application there were signatures of all persons and no objection letter of the complainant, which according to the complainant was not his, and thus there is false signature and on the basis of forged documents by committing fraud and using the same documents as genuine before the PGVCL, the electricity connection was Page 3 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined taken.
2.4 Advocate Mr.Vakharia submits that the Regular Civil Suit No.98 of 2019 has been filed by the complainant through power of attorney (his son), against the present petitioner, two sisters, widow mother and another brother praying for his share in the ancestral property. He submits that the FIR is a pressure tactics by the complainant so that the family members under the criminal proceedings would part with the property.
2.5 Advocate Mr.Vakharia submits that since suit is filed, shares of owner would be decided in accordance with the provisions of law, and if he is entitled for any of the suit property, he would get his share in accordance to the process of the Court. Mr.Vakharia submits that at the relevant time, the power of attorney was given to his son Chetan Devrambhai Sorathiya and the complainant with an ulterior motive, has filed FIR stating that he had not put his signature on any application Form for Page 4 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined electric connection which would run counter to his own Kabulatnama signed on 22.11.2018 for the consolidation prayer made to Circle Officer, Anjar in connection with the Survey Nos.62/6, 62/7, 62/8 of village Account No.108 of village Chandiya, Tal:
Anjar, Dist.: Kachchh and all the three brothers (i) Ramji Hiraji Sorathiya (ii) Devji Hiraji Sorathiya (ii) Mohanlal Hiraji Sorathiya had affirmed about the possession of the property and the property being old tenure land with the revenue Entry No.1501, the signature was placed before the Circle Officer, Dudhai, Tal: Anjar on 22.11.2018. Mr.Vakhariya submits that the complainant had also on that very day signed the panchnama in connection with this land for which he has stated before the panchas that he has voluntarily signed.
2.6 Advocate Mr.Vakharia submits that all the three brothers had also moved before the Mamlatdar for consolidation of land, and thereto, the complainant had put his signature and no dispute has been raised. Mr.Vakharia submits that prior to Page 5 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined that, document was executed between all the brothers. On 07.09.1998 in connection with the survey Nos.62/6, 62/7, 62/8 and the reference is made regarding the bore and water connection and pipe line and electric motor, where all the brothers had affirmed for equal contribution on the expenses and the arrangement was also made with regard to the electric connections on the agricultural property, and all the brothers were bound to follow the said regarding land and the agricultural land. Thus, Advocate Mr.Vakhariya submitted that, prima facie, it shows that the FIR is false against the present petitioner while other members of the family have not made any accusation in the matter, not even the other brother.
3. Advocate Ms. Anmol Jain, referring to the judgment of M/s. Neeharika Infrastructure Pvt. Ltd.
Vs. State of Maharashtra & Ors. submits that the Court is required to be slow in quashing the FIR and the investigation is required to be conducted and the complainant is required to be granted opportunity Page 6 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined to led the evidence, and only in exceptional cases, the Court should exercise the extraordinary inherent powers.
4. Here, in this case, the document suggests that the applications were given for consolidation of the properties referred hereinabove. The document was executed on 17.09. 1998 regarding the electric connection, motors and other expenses to be borne by the parties for the agricultural work. The complainant had given his power of attorney to his son. He has also filed a suit claiming his right and he has not challenged any of signature and other documents which has been signed before the Circle Officer, Dudhai, Tal: Anjar.
5. In the case of Dr.Vimla Vs. Delhi Administration, reported in 1963(2) CRI.L.J. 434; AIR 1962 SCC 157 (2), the Apex Court had dealt with expression "defraud" involves two elements i.e. deceit and injury to the person deceived. In the said case the Apex Court has observed as under: Page 7 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023
NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined "14. To summarize : the expression "'defraud" inoslves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is', deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non economic or non- pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
15. Now let us apply the said Page 8 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined principles to the facts of the present case. Certainly, Dr. Vimla was guilty of deceit, for though her name was Vimla, she signed in all the relevant papers as Nalini and made the insurance company believe that her name was Nalini, but the said , deceit did not either secure to her advantage or cause any non-economic loss or injury to the insurance company. The charge does not disclose any such advantage or injury, nor is there any evidence to prove the same. The fact that Dr. Vimla said that the owner of the car who sold it to her suggested that the taking of the sale of the car in the name of Nalini would be useful for income-tax purposes is not of any relevance in the present case, for one reason, the said owner did not say so in his evidence and for the other, it was not indicated in the charge or in Page 9 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined the evidence. In the charge framed, she was alleged to have defrauded the insurance company and the only evidence given was that if it was disclosed that Nalini was a minor, the insurance company might not have paid the money. But as we have pointed out earlier, the entire transaction was that of Dr. Vimla and it was only put through in the name of her made minor daughter for reasons best known to herself. On the evidence as disclosed, neither was she benefited nor the insurance company incurred loss in any sense of the term.
5.1 In the case of Mohammed Ibrahim and others Vs. State of Bihar & Anr. reported in (2009)8 SCC 751, the Apex Court has explained the concept of "Cheating" in the following terms:
13. Let us now examine whether the ingredients of an offence of cheating Page 10 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined are made out. The essential ingredients of the offence of "cheating" are as follows: (i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission; (ii) fraudulent or dishonest inducement of that person to either deliver any property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property. To constitute an offence under section 420, there should not only be cheating, but as a consequence of such cheating, the Page 11 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined accused should have dishonestly induced the person deceived (i) to deliver any property to any person, or (ii) to make, alter or destroy wholly or in part a valuable security (or anything signed or sealed and which is capable of being converted into a valuable security).
5.2 In the case of Mohammed Ibrahim (supra), the Apex Court has explained the concept of "false documents" in the following terms:
"14. An analysis of Section 464 of the Penal Code shows that it divides false documents into three categories:
1. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other persons, or by the Page 12 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined authority of some other person, by whom or by whose authority he knows it was not made or executed.
2. The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
3. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, knows the contents of the document or the nature of the allegations.
In short, a person is said to have Page 13 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined made a "false document", if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practising deception, or from a person not in control of his senses."
7. In case of Rajeshbhai Muljibhai Patel Vs. State of Gujarat, reported in AIR 2020 (3) SCC 794, the Hon'ble Apex Court, in regard to the opinion of the handwriting expert, which opined that the signatures did not tally with the sample signatures of the respondent to the matter, while stating about the pendency of the summary suit before the competent Court and of issue being raised of fabricated forged signature, observed that, when the issue as to genuineness of receipts is pending consideration in the civil suit, FIR ought not to have been allowed to continue as it would prejudice interest of parties and the stand taken by them in Page 14 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined the Civil Suit. The Hon'ble Supreme Court has found out that in terms of section 45 of the Evidence Act, opinion of hand writing expert is a relevant piece of evidence but it is not a conclusive evidence and it is always open to the parties to adduce appropriate evidence to disprove opinion of hand writing expert. Over and above that, Section 73 of Evidence Act empowers Court to compare admitted and disputed writings for the purpose of forming its own opinion and thus it was observed that only on the sole opinion of the handwriting expert, the F.I.R. ought not to have been registered, and continuation of the FIR would be abuse of process of Court and therefore the F.I.R. came to be quashed.
8. In case of State of Haryana V. Bhajan Lal and others, AIR (1992) SC 604, the Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible Page 15 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Apex Court made the following observations:-
"8.1. In the exercise of the extra- ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guide in myriad kinds of cases wherein such power should be exercised:
(a) where the allegations made in the First Information Report or the complaint, even if they are taken at Page 16 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;
(c) where the uncontroverted
allegations made in the FIR or
complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Page 17 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023 NEUTRAL CITATION R/CR.MA/23979/2019 ORDER DATED: 23/01/2023 undefined Magistrate as contemplated under Section 155(2) of the Code;
(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and / or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(g) where a criminal proceeding is
manifestly attended with mala fide
and/or where the proceeding is
maliciously instituted with an
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NEUTRAL CITATION
R/CR.MA/23979/2019 ORDER DATED: 23/01/2023
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ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
8.1. Prima facie, there is no case against the petitioner, it appears that the FIR is filed an ulterior motive, where the dispute is regarding the family property and the agreement is made for the electric connection on the agricultural land.
9. Thus, taking into consideration the proposition laid down in the above referred judgments, the present application is allowed. The impugned FIR being C.R.No.I-211 of 2019 registered before Anjar Police Station, Dist.: Gandhidham, Kachchh (East) and all other consequential proceedings arising out of the aforesaid FIR are quashed and set aside qua the present petitioner.
(GITA GOPI,J) Manoj Page 19 of 19 Downloaded on : Sun Sep 17 21:06:50 IST 2023