Gujarat High Court
Swaraj Narbheshankar Paneri vs State Of Gujarat on 31 May, 2021
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13451 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
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 or any order made thereunder ?
==========================================================
SWARAJ NARBHESHANKAR PANERI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1
MR DHRUV K. DAVE for MR MASUDIQBAL H RATHOD(7919) for the
Respondent(s) No. 2
MR MANAN MEHTA, APP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR. JUSTICE B.N. KARIA
Date : 31/05/2021
CAV JUDGMENT
By way of this application, the applicant prays for quashing of the F.I.R. being I CR No.61/2019 registered with Sama Police Station, District: Vadodara for the offence punishable under Sections 406, 420, 465, 467, 468, 471, 474, 182 and Page 1 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 506(2) of Indian Penal Code.
Brief facts of the present case are summarized as under:
That, the present applicant had purchased a land bearing Survey No.37 admeasuring 7689 sq.mtrs. and the land bearing Survey No.45 admeasuring 11635 sq.mtrs., situated at Village:
Sama by registered sale deed in the year 1999. It is alleged that the applicant did not make full payment of the said consideration and the payment of the cheques of consideration was stopped. That, during the suit proceedings initiated by respondent No.2 and her family members, the applicant allegedly executed agreement for payment of money, however, the present applicant did not pay even the said amount agreed at the time of the subsequent agreement dated 11.12.2003.
That, on false assurances of the applicant, the informant and her family members had withdrawn civil suits. That in the year 2013, all the earlier settlement agreements were cancelled and respondent No.2 transferred an amount of Rs.45,00,000/ to the account of the present applicant and thereafter instituted Civil Suit No.204 of 2014 before the learned Civil Court, Vadodara. That however present applicant is not even an agriculturist, he had allegedly produced fraudulent documents Page 2 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 at the time of application for non-agricultural use. That, the present applicant produced fraudulent measurement-sheet of adjoining land bearing Survey No.44 and has thereby wrongly got the N.A. Permission from the office of Collector, Vadodara on 31.1.2014. That, son of respondent No.2 got various documents under RTI from which respondent No.2 derived information that the measurement-sheet of the aforesaid plot as well as name of the occupier were erased. That, on 11.1.2019, son of respondent No.2 - Shri Anant Patel as well as her nephew Shri Ankur Patel were called by the present applicant in the office of his friend and at that time threats were delivered to the effect that they will face dire consequences if they keep on making applications before the various authorities against the applicant. Ultimately, impugned FIR came to be lodged on 8.7.2019 at 14.35 hours arraigning the present applicant as an accused.
Heard learned advocates for the respective parties and learned APP for the respondent-State.
It was submitted by learned advocate for the applicant that the impugned FIR is nothing but an abuse of process of law. That, none of the ingredients of the alleged offence are Page 3 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 made out on bare reading of the FIR as well as other uncontested / undeniable document and entire issue of civil nature is given the color of criminality. That respondent No.2, unsuccessfully, tried to ventilate her grievance about the nature of transaction of sale deed with the applicant by filing and/or participating in the civil and revenue proceedings, but respondent No.2 has failed therein. Despite that, present FIR is lodged in July, 2019 without explaining any delay whatsoever by making false and twisted allegations. That none of the ingredients of the alleged offences are made out. That respondent No.2 and her family members have dishonestly continued with the litigation right from the year 2001 and the applicant is made to run from pillar to post. The FIR is the last stroke on the back of the applicant who has purchased the land in question by paying proper and full consideration. That before the FIR, respondent No.2 had lodged a written complaint to the Police Inspector, Sama Police Station and the Police Commissioner, Vadodara on 22.1.2019. That, respondent No.2 sent the said complaint also by RPAD to the office of Police Commissioner on 1.3.2019 and the same was delivered on 2.3.2019. Immediately, a writ petition was filed Page 4 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 before the Hon'ble High Court seeking direction for registration of the FIR on or about 13.3.2019. In the said writ petition, all the aforesaid aspects of the civil litigation as well as unconditional withdrawal by respondent No.2 were suppressed and ultimately, a usual order was passed by this Hon'ble Court on 6.5.2019. That the principal grievance voiced by respondent No.2 in the civil litigation as well as in the FIR is about non-payment of the agreed amount of consideration. As settled legal position, for non-payment of consideration, the entire transaction cannot be invalidated. The only remedy available is to institute proceeding for recovery of the unpaid amount. In all the civil proceedings, respondent No.2 always wanted the transaction of sale to be declared invalid. All the suits instituted by her in her individual capacity are withdrawn unconditionally. The civil suit filed by her brother and sisters is dismissed and the decision is confirmed right upto the Hon'ble Supreme Court. Under the circumstances, when the title of the applicant over the land in question is clear and unimpeachable, such allegation about non-payment of agreed consideration would not be sufficient to initiate and continue the criminal prosecution against the Page 5 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 applicant. It is further urged that the grievance over the grant of N.A. Permission would also be unsustainable as the applicant initiated the process of grant of N.A. Permission in the year 2007. Due to all sorts of allegations and objections raised by respondent No.2 and her family members and several third parties, the proceedings continued and ultimately, on 31.1.2014, the Collector, Vadodara granted N.A. Permission. The challenge to the said order by respondent No.2 and her family members before SSRD failed as respondent No.2 unconditionally withdrew the said revision application. Thus, the N.A. Permission has also become final. It is further submitted that, hence, the allegation made by respondent No.2 in that regard in the FIR would be completely insignificant. That the prosecution is instituted as counter-blast to the FIR lodged by the applicant. Having failed in all civil and revenue proceedings and after having failed to knock out more money from the applicant, this is a new device adopted by respondent No.2 so that the applicant settles the dispute once again under the pressure. That respondent No.2 and her family members always want to take disadvantage of the escalated price of the land in question and this FIR is one such attempt. The applicant Page 6 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 is made to run from pillar to post by filing frivolous proceedings for last 20 years. Ultimately, it was submitted by learned advocate for the applicant to allow present application by quashing and setting aside the impugned complaint.
Learned APP for the respondent-State has strongly objected the arguments advanced by learned advocate for the applicant and submitted that it is a clear case of offence punishable under Sections 406, 420, 465, 467, 468, 471, 474, 182 and 506(2) of Indian Penal Code. It is further submitted that land in question was purchased by the applicant and sale deed was executed in the year 1990, but he did not make full payment of the said consideration and payment of the cheques consideration was stopped. Thereafter, in suit proceedings initiated by the respondent no.2 and her family members, applicant had executed agreement for payment of money, however, he did not pay the said amount agreed at the time of subsequent agreement dated 11.12.2003. It is further submitted that false assurance was given by the present applicant to the first informant and her family members and therefore, civil suits were withdrawn. Again in the year 2013, all the earlier settlement agreements Page 7 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 were cancelled and respondent no.2 transferred an amount of Rs. 45 lacs in the account of the applicant and thereafter, Civil Suit No. 204/14 was filed before the learned Civil Court, Vadodara. It is further submitted that however, the applicant was not an agriculturist, he had produced fraudulent documents at the time of application for non agricultural use. That, along with fraudulent documents, measurement sheets of adjoining land bearing survey no. 44 were also produced along with getting non agricultural permission from the office of the Collector, Vadodara on 31st January 2014. That son of the respondent no.2 received various documents under the RTI Act from which, the respondent no.2 derived information that the measurement sheetd of the aforesaid plot as well as name of the agriculturist were erased. It is further submitted that son of the respondent no.2 namely Anant Patel as well as her nephew namely Ankur Patel were called by the applicant in the office of his friend and at that time, they were threatened that they will face dire consequences if they will continue to make application before various authorities against the present applicant, and therefore, impugned FIR was lodged on 08.07.2019. That, there is clear criminal breach of trust Page 8 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 committed by the present applicant as well as applicant has intention to defame the respondent no.2 and her family members, and therefore, ingredients of Section 406 as well as section 420 of Indian Penal Code are prima facie made out by the prosecution. That, while creating false documents and valuable security as defined under Section 30 of Indian Penal Code, offence punishable under Section 465 as well as 467 of IPC are prima facie made out against the present applicant by the prosecution. That, the applicant has used forged document as genuine to dishonestly achieve benefit. That, considering the allegations made out in the complaint and other documents produced on record, the question of dispute as argued cannot be considered by this court. That, all the allegations made by the respondent no.2 in her complaint requires evidence to be recorded before the trial court, and hence, it was requested by learned APP for the respondent-State to dismiss present application.
Learned advocate for the respondent no.2 has supported the arguments advanced by learned APP for the respondent- State and controvert the arguments advanced by learned advocate for the applicant. It is submitted that the application Page 9 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 itself is not maintainable for the reason that it involves disputed questions of facts which requires a detailed inquiry and investigation which requires leading of oral and documentary evidences. This application is beyond the scope of jurisdiction under Article 226 of the Constitution of India and it is not appropriate to raise disputed question of fact for adjudication under the extraordinary writ jurisdiction of this Court. It is further submitted that, the applicant has suppressed obtrusive facts and no relief as prayed for by the applicant can be granted. That, the applicant has committed a syndicate crime with other co-accused by hatching a criminal conspiracy and investigation is at crucial stage, from which, it would reveal name of other accused who have altered public documents, created false record and used false and fabricated documents as genuine before the Collector, Vadodara and other competent authority. It is further submitted that by way of fraud, applicant had altered public documents with a motive to create false documents and create artificial rights in an adjacent land (survey no. 42 and 44) other than survey numbers 37 and 45 of village Sama, Vadodara. That, false measurement sheets with hissa form were created by the Page 10 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 applicant and used as genuine before the competent authority to obtain NA permission. It is further submitted that in a part of the agreement to sell of survey no. 42 and survey no.44, the applicant stood as a confirming party to the sale deed of survey no.42 and thereby, without crystallization of the rights, he had earned an amount of Rs. 9,75,00,000/- which may be the matter of investigation. It is further submitted that applicant has created and submitted false and forged documents such as 7/12 abstract of Amreli and same were produced before the competent authority to obtain N.A. Permission. That, respondent no.2, before the Hon'ble Apex court, has not lost , therefore, sale deed is challenged and same is pending as on today. The applicant has played fraud on the respondent by committing breach of agreement dated 11.12.2003 and did not pay total consideration of the same. That other legal heirs of the deceased Chimanlal Nanalal have also preferred appropriate proceedings disputing the consideration of the sale deed, and therefore, applicant has not paid full consideration to the respondent No.2 and other legal heirs. That applicant is in patent practice of entering and executing out of court settlement and thereby misled the parties to withdraw the suit Page 11 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 proceedings and further by not paying the agreed amount to the respondent and other legal heirs. That, the applicant has fraudulently obtained N.A. Permission and therefore, same has not been produced before the primary authority and revisional authority. That, the applicant has suppressed the material facts in the present application. That, one third party has also challenged the permission of N.A. Granted to the applicant and same is pending before the division bench. That, NA permission is obtained by fraud and there are breach of conditions imposed by the Collector, Vadodara. That, the applicant is a direct beneficiary of the fraud committed upon the deponent and others, and therefore, he has hatched the criminal conspiracy. That submissions made by applicant are devoid of merits and are misconceived and untenable in law as well as on facts and relief prayed cannot be granted. It is requested by learned advocate for the respondent No.2 to dismiss the present application.
Having gone through the documents produced on record by the either side, arguments advanced by learned advocates for the respective parties as well as learned APP for the State, it appears that the controversy in the present FIR relates to land Page 12 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 bearing Survey No.37 admeasuring 7689 sq.mtrs. and land bearing Survey No.11635 sq.mtrs., situated at Village: Sama, District: Vadodara. From the documents produced on record vide Annexure- "B", it appears that initially the land in question was purchased by late Shri Chimanlal Nanalal Patel in the year 1963 from the original owners and upon his death in the year 1973, the same came to be devolved upon 6 heirs of late Shri Chimanlal including respondent No.2. From the said sale deed it appears that the heirs of late Shri Chimanlal including respondent No.2 sold the land in question to the present applicant by registered sale deed dated 2.11.1999 and thereafter name of the applicant was mutated in the Revenue records vide Mutation Entry No.7185 dated 6.11.1999. As per the submissions made by learned advocate for the applicant, since then, the applicant was in possession of the land in question as an owner. After execution of sale deed in the year 1999, one sister of respondent No.2 - Binaben instituted a suit being Special Civil Suit No.90 of 2001 seeking cancellation of the sale deed made in favour of the present applicant and permanent injunction on the ground that the sale deed is executed upon misrepresentation, and therefore, fraudulent. It Page 13 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 also appears that, thereafter, the said suit being Special Civil Suit No.90 of 2001 was withdrawn unconditionally by the sister of the respondent No.2. It also appears from the record that present respondent No.2 also filed another suit being Special Civil Suit No. 112/2001 before the Civil Court, Vadodara seeking cancellation of sale deed on the same ground that such sale deed was executed upon misrepresentation and non-payment of consideration. The said civil suit came to be unconditionally withdrawn by respondent No.2 on 16.12.2003. It appears that respondent no.2 had withdrawn her Special Civil Suit No. 112/2001 upon settlement with the present applicant and the settlement agreement deed 11.12.2003 was executed. As per the said agreement, the applicant agreed to pay an amount of Rs.5,51,000/- and the cheques were also delivered to respondent No.2. As per the submissions of learned advocate for the applicant that out of the said 3 cheques, one cheque was deposited on the very same day and another cheque was also honoured. Instead of depositing the third cheque, respondent No.2 received amount in cash. It also appears that some correspondence through advocate issuing legal notice and reply of notice by the Page 14 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 applicant were also made between the parties. There were two notices issued by the respondent no.2 dated 6.9.2006 and 5.4.2007 requesting the applicant to pay the amount of Rs. 2,25,000/- with interest within a period of 7 days. Another notice dated 21.4.2007 was also issued by the respondent no.2 cancelling the aforesaid agreement dated 31.12.2003. It is pertinent to note that no proceedings were initiated by respondent No.2 for the recovery of the alleged unpaid amount. Thereafter, another notice dated 23.01.2008 was issued by the respondent no.2, inter alia, stating that she received an amount of Rs. 4,25,000/- in furtherance of the agreement dated 11.12.2003 and the said amount is returned by cheque dated 23.1.2008. In response of the said notice, reply was issued by the present applicant on 29.1.2008, inter alia, contending that there was no question of cancellation of the agreement as it was acted upon and the entire amount was paid, and therefore, she cannot back out from the said agreement. As respondent No.2 was not satisfied, she issued another notice dated 31.01.2008 once again sending the cheque conveying that the agreement was cancelled. Again reply was given by the applicant stating that notice issued by Page 15 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 her was erroneous and the entire amount was paid by him along with interst and cheque was returned by her. Thereafter, similar response was given by the respondent no.2 on respondent No.2 on 7.2.2008. During the exchange of notices, sisters and brother of respondent No.2 instituted Special Civil Suit No.352 of 2007 before the learned Civil Court, Vadodara with similar prayer for cancellation of the sale deed on the ground of non-payment of consideration and misrepresentation. Respondent No.2 was also arraigned as defendant No.3 in the said suit only as earlier suit instituted by her being Special Civil Suit No.112 of 2001 was unconditionally withdrawn by her. Along with the plaint, an application seeking temporary injunction was also preferred below Exh.5. Initially, ex parte order of status quo was granted. The applicant appeared and filed a detailed written statement below Exh.29 opposing the suit as well as temporary injunction. Thereafter, an application was filed below Exh.28 in the suit with a request to strike the name of the original defendant No.1. The present applicant also filed an application below Exh.31 to dismiss the suit under Order 7 Rule 11 of the Code of Civil Procedure. The learned trial Court was pleased Page 16 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 to hear these applications and rejected the application seeking temporary injunction by the respondent no.2 and vacated ex parte ad-interim injunction. The learned Trial Judge was also pleased to allow an application preferred by the applicant and rejected the plaint under Order 7 Rule 1(d) of the Code. Being aggrieved by and dissatisfied with the said order, brothers and sister of respondent No.2 filed First Appeal No.2548 of 2009 before this Court. At the time of admission hearing, the said appeal came to be dismissed in limine by this Court vide order dated 26.10.2009.
It also appears from the record that being dissatisfied with the order passed by this Court in First Appeal No.2548 of 2009 rejecting an appeal on 26th October 2009, Special Leave to Appeal (Civil) No.13140 of 2010 was filed before the Hon'ble Apex Court, which came to be dismissed after hearing of the parties including the respondent no.2 on 19.1.2012 and thereafter, the brother of respondent No.2 filed a Review Petition (Civil) No.1830 of 2012 before the Hon'ble Apex Court, which came to be dismissed on 11.10.2012. This issue did not end here and the relative of respondent No.2 also filed a Curative Petition (Civil) No.210 of 2015, which remained Page 17 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 pending for a period of 3 years and ultimately came to be dismissed on 21.7.2015. It appears that the challenge to the sale deed came to be culminated in favour of the applicant in 1999. However, in the meantime, respondent No.2 filed one more civil suit being Special Civil Suit No.501 of 2008 praying for cancellation of the sale deed on the ground that the amount of consideration as agreed in the aforesaid agreement dated 11.12.2003 was not paid. It also appears that Civil Suit remained pending up to 2010 without any orders. In 2010, respondent No.2 again settled the matter with the applicant and accepted an amount of Rs.15,00,000/-. A settlement agreement-cum-affidavit has been executed by respondent No.2 on 20.10.2010. On the very same day, a declaration- cum-affidavit in English language was executed by her. It also appears that on 16.12.2010, an affidavit was filed by respondent No.2 and three other sisters before the Collector, Vadodara giving their consent for grant of N.A. Permission with regard to land in question and withdrawal of objections raised by them. However, it was specifically admitted that the amount of Rs.15,00,000/- was received by respondent No.2, in the FIR, it is stated that the applicant paid only an amount of Page 18 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 Rs.7,50,000/-. It also appears that no action whatsoever was taken by respondent No.2 and the aforesaid Suit No.501 of 2008 instituted by her before the learned Civil Court was unconditionally withdrawn on 30.10.2010. It also appears from the record that after passing of three years, again, respondent No.2 issued a notice on 17.7.2013 cancelling the settlement agreement dated 11.10.2010 on the ground that applicant did not pay the amount of Rs.15,00,000/- as well as further amount of Rs.10,00,000/- as alleged and instead, paid only an amount of Rs.7,50,000/-. It also appears that again respondent No.2 instituted Special Civil Suit No.204 of 2014 before the learned Civil Court, Vadodara on 5.4.2014 praying cancellation of the sale deed and all other documents. Such Special Civil Suit No.204 of 2014 came to be dismissed for non-prosecution on 7.5.2018.
It also appears that in the meantime, the applicant had also approached the office of the Collector for granting N.A. Permission. Certain objections were also raised before the Collector, Vadodara by the respondent no.2, her relatives and other persons against the grant of N.A. Permission. Overruling all the objections, the Collector, Vadodara allowed N.A. Page 19 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 Permission vide order dated 31.1.2014. As, respondent no.2 was not satisfied with the order passed by the Collector, Vadodara dated 31.01.2014 granting N.A. Permission to the applicant and said order was challenged by her and her brother namely Jagdishbhai Chimanbhai Patel by filing Revision Application No.MVV/BKP/VDD/7/2014 before the learned Special Secretary (Appeals), Revenue Department wherein respondent No.2 also applied for being impleaded as party respondent in another revision application being Revision Application No.MVV/HKP/VDD/44/2005 challenging Mutation Entry No.785 dated 6.11.1999 in favour of the applicant. However, this revision application was filed by third parties, respondent No.2 wanted to implead herself as party respondent in support of the said revision application. It appears from the documents produced in the petition vide Annexure-R(Colly.) that again respondent no.2 settled a matter and filed a purshish in revision application that she does not wish to object to the mutation entry in favour of the applicant and she would withdraw her application. Further affidavit was also filed iby her in support of the applicant that she does not wish to prosecute her independent revision application Page 20 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 challenging the grant of NA permission. Ultimately, the revision application came to be heard by the learned Special Secretary (Appeals), Revenue Department and vide order dated 26.7.2016 allowed unconditional withdrawal as prayed for by the applicant which include respondent No.2 and her brother. It also appears from the documents produced vide Annexure-T to the petition that the order of granting N.A. Permission was also challenged by one third party - Maheshbhai Chhaganbhai Patel before this Court by filing Special Civil Application No.21553 of 2017, which petition came to be dismissed by this Court vide order dated 11.2.2019. Thus, the issue with regard to grant of N.A. Permission of the land in question also came to be concluded.
It also appears that present applicant has deposited the amount of Rs. Rs.35,00,000/- in the account of son of respondent no.2, daughter-in-law of the respondent no.2 and two different bank accounts of the respondent no.2 on 16 th September 2014 as well as in the account of brother-in-law Mr.Anant Patel. Thereafter, the respondent No.2 and her family members insisted for payment of the said amount in cash, which was not accepted by the applicant and therefore, Page 21 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 the entire amount was returned to the applicant in his account maintained with Punjab National Bank by RTGS in 2-3 days.
It is impressed to this court from the record that the issue has noting to do with ongoing land dispute and it is wrongly highlighted in the FIR by the respondent no.2 stating that the amount of Rs.45,00,000/- were returned by her to the present applicant. It also appears from the Annexure-V that the applicant had also lodged one FIR being I CR No.73/2015 with Sama Police Station for the offence punishable under Sections 418, 420, 465, 467, 468 and 120B of Indian Penal Code and in the said FIR, the respondent no.2 is shown as an accused no.3. It appears that after exhausting all the remedies, the civil and revenue proceedings, a complaint came to be filed on 22.1.2019 by respondent No.2 addressing to the Police Commissioner, Vadodara as well as Police Inspector, Sama Police Station. As this complaint was not registered as requested by the respondent no.2 filed on 22.01.2019, she immediately approached this Court by filing Special Criminal Application No.3337 of 2019 and sought direction for registration of the FIR and this Court, vide order dated 6.5.2019, directed the Police Inspector, Sama Police Station to Page 22 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 look into the contents of the complaint made by respondent No.2 and lodge the FIR if any cognizable offence is made out. Thereafter, one complaint was filed by then son of respondent No.2 - Anant Madanmohan Patel to the Sayajiganj Police Station on 16.3.2019 stating that the present applicant and his friend had delivered threats to him on 11.1.2019. The statement of the applicant was recorded in connection with the said complaint on 25.03.2019 and thereafter, statements of his friend were recorded on 28.3.2019 and ultimately, no case was found for registration of the FIR and a report in that regard was submitted and therefore, the said complaint was filed.
Despite this, respondent no.2 filed impugned FIR, which has been registered on 8.7.2019. It appears that without properly verification of the records as well as various orders passed by the learned Civil Court, this Court as well as the Hon'ble Supreme Court, it was registered on 8.7.2019.
It appears that the applicant succeeded himself on the title upto the Hon'ble Apex Court and having succeeded on the issue of N.A. Permission upto this Court and respondent no.2 suppressed the material facts in her complaint dated 8th July Page 23 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 2019. An inordinate delay whatsoever is not explained and allegations are twisted. The transactions between the applicant and respondent no.2 is of sale of land in question by registered sale deed and there was no question of entrustment, which would be the most essential ingredients for constituting the offence punishable under Section 406 of IPC. In the complaint, respondent no.2 has never stated that she was deceived with property by the applicant with an intention to deceive her and her family members right from inception. On the contrary, applicant has filed a separate FIR. In the impugned complaint, it is nowhere case that signature of the respondent no.2 was forged in any of the document including the sale deed. It cannot be said from the correspondence and order passed by the Collector or revenue authority that the applicant has used any forged document as genuine dishonestly to achieve any benefit. There cannot be any forgery or any valuable security for making out any case under Section 467 or Section 465 of the Indian Penal Code.
It appears that the respondent no.2 and her family members have dishonestly continued with the litigation right from the year 2001. The main grievance raised by the Page 24 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 respondent no.2 in civil litigation as well as in the impugned FIR is about non payment of the agreed amount of consideration.
A settled legal position would be that for non payment of consideration, entire transaction cannot be illegal as remedy is available to institute the proceedings for recovery of the unpaid amount in the civil proceedings. Respondent no.2 always wanted the transaction of sale to be declared invalid in all the civil suits instituted by her in her individual capacity were withdrawn unconditionally. Civil suit filed by her brother and sister was dismissed and decision was confirmed right up to the Hon'ble Apex Court. The title of the applicant over the land in question was found clear and allegation of non payment of agreed consideration would not be sufficient to initiate and continue criminal proceedings against the applicant. The grievance over the grant of N.A. Permission would also be unsustainable as the applicant initiated the process of grant of N.A. Permission in the year 2007. The allegations and objections raised by respondent no.2 and her family members as well as son, third party, allegations and objections raised by respondent No.2 and her family members Page 25 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 and several third parties, the proceedings continued and ultimately, on 31.1.2014, the Collector, Vadodara was pleased to grant N.A. Permission. The order of granting N.A. Permission was also challenged by the respondent no.2 and her family members before the SSRD and failed as she unconditionally withdrew the said revision application. Thus, issue of N.A. Permission has also become final and therefore, in that regard, allegations made by respondent no.2 are completely insignificant. It also appears from the record that name of the father of the applicant was in the revenue record of the aforesaid land from 1954 to 1990. The Deputy Collector, has also given a detailed report to the Collector in this regard and thereafter, application for grant of N.A. Permission was processed. The respondent no.2 has nothing to do with the issue and she being a seller cannot raise this dispute. So far as false measurement-sheet over the adjoining land bearing Survey No.44, respondent no.2 has nothing to do with the said land at all. It appears that applicant has never sought for any measurement to be done over Survey No.44. It is impressed to this court that impugned FIR filed by the respondent no.2 is counter blast to the FIR lodged by the applicant after failing in Page 26 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 all the Civil and Revenue proceedings and to get more money from the applicant, so that the applicant would settle the dispute once again under the pressure. As per the opinion of this Court from the pleadings and arguments advanced by learned advocates for the respective parties as well as learned APP for the respondent-State, this FIR is nothing but abuse of process of law and is lodged with an ulterior motive to harass the present applicant.
Hon'ble Apex Court in case of "Vineet Kumar and ors v. State of Uttar Pradesh and Anrs" reported in (2017) 13 Supreme Court Cases 369" has held about to exercise jurisdiction under Section 482 Cr.P.C. in respect of quashing of criminal proceedings. After examining the provisions of Section 482 of Cr.P.C., Hon'ble Apex Court has observed in para 22 to 25 and 41 as under:
22. Before we enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 Cr.P.C. vested in the High Court. Section 482 Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
23. This Court time and again has examined scope of jurisdiction of Page 27 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 High Court under Section 482 Cr.P.C. and laid down several principles which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. A three-Judge Bench of this Court in State of Karnataka vs. L. Muniswamy and others, 1977 (2) SCC 699,held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. In paragraph 7 of the judgment following has been stated:
"7....In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
24. The judgment of this Court in State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482 Cr.P.C. Although in the Page 28 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 above case this Court was considering the power of the High Court to quash the entire criminal proceeding including the FIR, the case arose out of an FIR registered under Section 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. This Court elaborately considered the scope of Section 482 CR.P.C./ Article 226 in the context of quashing the proceedings in criminal investigation. After noticing various earlier pronouncements of this Court, this Court enumerated certain Categories of cases by way of illustration where power under 482 Cr.P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice.
25. Paragraph 102 which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C. are extracted as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not Page 29 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 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.
(3) 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.
(4) 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 Magistrate as contemplated under Section 155(2) of the Code.
(5) 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.
(6) 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.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
41. Inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In Page 30 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana vs. Bhajan Lal. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana vs. Bhajan Lal, which is to the following effect:
"(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court has noted the judgment of the State of Haryana vs. Bhajan Lal, but did not advert to the relevant facts of the present case, materials on which Final Report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where High Court ought to have exercised its jurisdiction under Section 482 Cr. P.C. and quashed the criminal proceedings.
In view of the aforesaid discussion, as no offence punishable under Sections 406, 420, 465, 467, 468, 471, 474, 182 and 506(2) of Indian Penal Code is made out by the prosecution, present application stands allowed. Page 31 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022 R/CR.MA/13451/2019 CAV JUDGMENT DATED: 31/05/2021 The impugned complaint being I CR No.61/2019 registered with Sama Police Station, District: Vadodara for the offence punishable under Sections 406, 420, 465, 467, 468, 471, 474, 182 and 506(2) of Indian Penal Code and all other proceedings initiated pursuant thereto stands quashed and set aside.
Notice stands discharged.
(B.N. KARIA, J) K. S. DARJI Page 32 of 32 Downloaded on : Sat Jan 15 03:09:14 IST 2022