Gujarat High Court
Manojbhai Parshottambhai Movaliya vs State Of Gujarat & on 24 March, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/12639/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 12639 of 2014
With
CRIMINAL MISC.APPLICATION NO. 12996 of 2014
With
CRIMINAL MISC.APPLICATION NO. 12473 of 2014
With
CRIMINAL MISC.APPLICATION NO. 12465 of 2014
With
CRIMINAL MISC.APPLICATION NO. 13264 of 2014
With
CRIMINAL MISC.APPLICATION NO. 13266 of 2014
With
CRIMINAL MISC.APPLICATION NO. 13991 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
==========================================================
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 ? ========================================================== MANOJBHAI PARSHOTTAMBHAI MOVALIYA....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== APPEARANCE :
Page 1 of 68
HC-NIC Page 1 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT CRIMINAL MISC. APPLICATION NOS.12639 and 12996 OF 2014 MR RS SANJANWALA, SENIOR COUNSEL WITH MR PRAVIN GONDALIYA, ADVOCATE for the Applicant(s) No. 1 MR PM THAKKAR, SENIOR COUNSEL WITH MR.PP MAJMUDAR, ADVOCATE for the Respondent(s) No.2 MR RONAK RAVAL, ADDL.PUBLIC PROSECUTOR for Respondent(s) No.1 CRIMINAL MISC. APPLICATION NOS.12473, 12465, 13264 and 13266 2014 MR HARDIK A DAVE, ADVOCATE for the Applicant(s) No. 1 MR PM THAKKAR, SENIOR COUNSEL WITH MR.PP MAJMUDAR, ADVOCATE for the Respondent(s) No.2 MR RONAK RAVAL, ADDL.PUBLIC PROSECUTOR for Respondent(s) No.1 CRIMINAL MISC. APPLICATION NO.13991 OF 2014 MR JM PANCHAL, SENIOR COUNSEL WITH MR PRAVIN GONDALIYA, ADVOCATE for the Applicant(s) No. 1 MR PM THAKKAR, SENIOR COUNSEL WITH MR.PP MAJMUDAR, ADVOCATE for the Respondent(s) No.2 MR RONAK RAVAL, ADDL.PUBLIC PROSECUTOR for Respondent(s) No.1 ========================================================== CORAMHONOURABLE MS JUSTICE SONIA GOKANI :
Date : 24/03/2017 CAV COMMON JUDGMENT
1. This group of petitions preferred by the applicantsoriginal accused under section 482 of Code of Criminal Procedure, 1973, seeks to prevent the abuse of process of law. According to the applicants, allegations made in the FIR and the evidence collected in support thereof, even when taken on the face value, would not prima Page 2 of 68 HC-NIC Page 2 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT facie constitute an offence and even uncontroverted allegations made in the FIR do not disclose commission of offence. It is averred that where the criminal proceedings are manifestly attended with mala fide or the proceeding are maliciously instituted with an ulterior motive of wreaking vengeance or with an intention to extort money by pressurizing the applicants (accused) or when on the face of it, the criminal proceedings are apparently used for harassment, it deserves quashment. Last but not the least is the issue of inexplicable delay in lodging of FIR strenuously pressed into service.
It is the say of applicants that the present proceedings are nothing, but pure and obvious abuse of process of law, therefore, the applicants are before this Court seeking quashment of the FIR.
2. Necessary facts, bereft of details, deserve to be mentioned at the outset.
2.1 The dispute is in relation to the old tenure agricultural land bearing Revenue Survey Nos.17 Page 3 of 68 HC-NIC Page 3 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT and 18/01 paiki revised Survey Nos.56/1 and 56/2 and also the Plot No.45, Final plot No.52 in the Town Planning Scheme No.3, admeasuring total area of 6492 sq.mtrs. sitauted at village Rundh, Taluka Choryasi, District Surat (to be referred to hereinafter as "the said land"). 2.2 Admittedly, Kanjibhai Keshabhaioriginal owner of the land in question was the real brother of Govindbhai Keshbhaigrandfather of the complainant of first information report in question being IC.R.No.35 of 2014 registered on August 02, 2014 with DCB Police Station, Surat, for the offences punishable under sections 406, 420, 465, 467, 468, 471, 114 and 120B of the Indian Penal Code. As emerges from the record Shri Kanjibhai Keshabhai was the owner of the land in question, who died on July 06, 1954. His wife Jankhuben expired in the year 1965. The brother of Kanjibhai, late Shri Govindbhai passed away before him in the year 1947. Govindbhai left behind him four children, viz. Sukhabhai, Makanbhai, Ratanjibhai and Sonalben. Kanjibhai and Jankhuben expired Page 4 of 68 HC-NIC Page 4 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT childless and therefore, the legal heirs of Govindbhai Keshubhai became the owners of said properties. Later on, the lands in question were mutated in the names of Naniben who was the wife of Sukhabhai and Makanbhai only. Sukhabhai had passed away on May 12, 1972. Their brother Ratanjibhai was deprived of his share by other two heirs as Sonalben had died early. Complainant is the daughter of Ratanjibhai who died on January 24, 1979. She is aggrieved by the fraud played upon her deceased father and his branch of heirs. 2.3 The dispute herein essentially concerns three branches of heirs as one branch of heirs has been left out in a pedigree presented to the revenue authorities, at the time of mutating an entry in the revenue records in the year 1982, i.e. on February 15, 1982. Such revenue entry, being Entry No.479 of 1982, has been mutated whereby 1/3rd share of Ratanji Govindbhai, father of the complainant, is averred to have been marred by the action of other two branches of heirs of Govindbhai i.e. Page 5 of 68 HC-NIC Page 5 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT
(i) Makanbhai Govindbhai and (ii) Naniben Sukhabhai, widow of late Sukhabhai Govindbhai. 2.4 Revenue entry, thus, was mutated, being entry No. 479 of 1982, giving effect to the pedigree presented by Makanbhai and heirs of Sukhabhai on February 15, 1982. The said entry was not challenged by the heirs of Shri Ratanji till the year 2007.
2.5 On 17th March, 1990, heirs of Makanbhai and Naniben Sukhabhai had jointly executed a power of attorney in favour of coaccusedAnil Shashikant Pastagiya, who is not before this Court.
2.6 In the year 1991, nine sale deeds were executed by Mr. Anil Shashikant Pastagiya in favour of fourteen persons, on different dates acting as a power of attorney holder of some of the legal heirs of the original owners. They were executed in favour of non agriculturists.
Page 6 of 68 HC-NIC Page 6 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 2.7 In the year 1999, nine different power of attorney were executed in favour of Mr. Pramod Kantilal Shah by nonagriculturist purchasers and Entry No. 828 & 836 came to be mutated in his favour.
2.8 Notices under section 135(D) of the Bombay Land Revenue Code were issued by the Revenue Authority, wherein Mr.Anil Shashikant Pastagiya had signed on behalf of the original land owners and Mr. Pramod Kantilal Shah had signed on behalf of all fourteen non agriculturists purchasers. On 5th March, 2001, Circle Officer cancelled the mutation Entry Nos. 828 & 836, as they were made in favour of non agriculturist of the agricultural land. 2.9 On 15th March, 2003, Regular Civil Suit came to be filed, being Regular Civil Suit No. 102 of 2003 by legal heirs of one Chhaganbhai Sukhabhai against the legal heirs of Jayantibhai Sukhabhai seeking declaration of the ownership over the subject land. Page 7 of 68 HC-NIC Page 7 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 2.10 On September 30, 2005, an application for injunction was allowed in Regular Civil Suit No.102 of 2003. The legal heirs of Sukhabhai filed Miscellaneous Civil Appeal No.76 of 2005, against the order at Exhibit 5 application on October 14, 2005.
2.11 Entry No. 1510 was mutated in the revenue records recording grant of stay in Exh.5 application in Regular Civil Suit No.102 of 2003, in relation to the said property in the year 2007.
2.12 Shankar Sukhbhaiaccused No.2 on March 21, 2003, had mutated his name in the revenue record as an owner of some parcel of land in question by Revenue Entry No.992 of 2003 on the basis of will of Naniben Sukhabhai. 2.13 On May 15, 2005, the sale deed came to be executed in favour of Ramjibhai Joshi (accused No.6 in the FIR) by Makanbhai and his legal heirs by a registered sale deed bearing No.1420 of 2005.
Page 8 of 68 HC-NIC Page 8 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 2.14 An amended sale deed was executed in favour of accused No. 6 dated 10th July, 2006, where survey No. 57/ 1 was mentioned instead of 56/
2. On 10th July, 2006, Entry No. 1373 was mutated in the name of Ramjibhai Joshi accused No.6 by way of amended sale deed No. 10047 /2006, without any reference of original sale deed dated February 03rd, 2005. 2.15 Civil Suit No.390 of 2006, came to be preferred by one of the sons of Naniben Sukhabhai, who had expired in February, 2002, as she bequeathed her property by will to one son Shankarbhai praying for his right in the said land. The complainant preferred the application for joining herserlf as party in Civil Suit No.390 of 2006 on November 26, 2008. Lis pendens was registered on 3rd January, 2007 by the plaintiffs of Civil Suit No. 390 of 2006 and notice was given in "Gujarat Mitra" daily dated January 16, 2007. 2.16 The first time complainant and her family came into picture when she preferred RTS Appeal Page 9 of 68 HC-NIC Page 9 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT No.53 of 2007 before the Deputy Collector to enter their names as legal heirs of Ratanji, but the same was rejected on the ground of delay. Challenge to the Collector also failed. However, the proceedings were taken to Special Secretary, Revenue Department (hereinafter referred to as 'the SSRD'') and are pending. 2.17 Accused No.6 Shri Ramjibhai Joshi sold the land in question through his power of attorney i.e. Manoj Gurjar by way of registered sale deed in the March, 2008 to M/s.Rajhans Construction Pvt. Ltd. by dealing with its direction Mr.Manoj Movaliya.
2.18 Accused No.6 Ramjibhai applied for grant of permission of converting the land as non agricultural land under section 63 of the Bombay Tenancy and Agricultural Lands Act 1948 mentioned that the stay was granted in Regular Civil Suit No.102 of 2003, and the entry was not certified.
Page 10 of 68 HC-NIC Page 10 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 2.19 On July 22, 1991, property got transferred by way of sale and thereafter, once again, the transfer was effected on 3rd February, 2005, when it was given to the accused No.6. Again, in the year 2008, the property once again changed hands for the third time.
2.20 A Civil Suit, being Civil Suit No. 44 of 2009, came to be filed by the respondent (original complainant)before the Court of learned Principal Senior Civil Judge for partition by claiming 1/3rd share in the land in question and for cancellation of subsequent sale deeds.
An application for interim injunction in the said Civil Suit resulted against the complainant.
2.21 An AppealfromOrder being A.O No. 27 of 2016 preferred against the said order also resulted against the complainant, where this Court on 4th April, 2016, on the ground of gross delay, dismissed the said A.O. Page 11 of 68 HC-NIC Page 11 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 2.22 The confirmation deed came to be executed by the heirs of the paternal uncle and aunt of the complainant on 28th January, 2009, stating therein that they are owners of the said land, no sooner when the civil suit was filed. On 5th May, 2009, the application for converting the land into N.A. land was moved by Rajhans Construction Pvt. Ltd. for the said land which was granted on certain terms and conditions by the Authority.
Although for the land transaction on 6th March, 2008 cheques were given by M/s.Rajhans Construction Pvt. Ltd. which were discounted on 4th June, 2009 in relation to the sale deed. Between 13th June, 2009 and 13th July, 2009, also the cheques given by the Rajhans Construction Pvt.Ltd. The cheque of 3rd February, 2005 also were discounted. Development permission to make development over the said land came to be granted to the applicant by the Municipal Corporation on 17th July, 2009.
Page 12 of 68 HC-NIC Page 12 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 2.23 Criminal Prosecution was initiated by Jekorben, daughter of Ranjitji on 2nd August, 2014 as mentioned, against the heirs of Makanbhai and Sukhabhai, and also against the subsequent purchasers and the same has been registered as IC.R. No.35 of 2014 with DCB Police Station. The investigation of this first information report was transferred to the CID Crime.
2.24 The complainant preferred Special Criminal Application No.3238 of 2014, challenging the said act of transfer of investigation, which was allowed in her favour where the order of transfer of investigation to CID crime on 8th May, 2015, came to be quashed.
2.25 Aggrieved accused challenged such order by way of SLP (Crim.) No. 9273 of 2015, and it was withdrawn by the applicants, since it was not entertained by the Apex Court.
2.26 The State also had preferred SLP (Crim.) No. 6113 of 2015 which was not entertained and Page 13 of 68 HC-NIC Page 13 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT was permitted to be withdrawn by the Hon'ble Supreme Court.
2.27 On October 19, 2015, against those accused, whose names were not shown in the FIR, summons were issued under Section 160 of Code of Criminal Procedure in their capacity as Directors of the Company.
2.28 They preferred quashing petition by way of Criminal Misc. Application No.19564 of 2015, wherein Court issued notice and directed not to take coercive action qua those petitioners by an order dated October 19, 2015. The respondent No.2original complainant aggrieved by the said order dated October 19, 2015, filed an application to vacate the interim relief being Criminal Miscellaneous Application No.23012 of 2015. This was rejected vide order dated December 07, 2015 by this Court.
2.29 The complainant challenged the said order of this Court by filing Special Leave to Appeal[Cri.] No.1528 of 2016. On March 29, Page 14 of 68 HC-NIC Page 14 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 2016, where the grievance was made on the part of the complainantpetitioner, while assailing the orders dated October 19, 2015 and December 07, 2015, that quashing petition is entertained by the High Court at the behest of the third party, which is unknown to the law, relying on the decision of the Apex Court rendered in case of Bharat Amratlal Kothar and another Vs. Dosukhan Samdkhan Sindhi and others, reported in 2010(1) SCC 234. The Apex Court considering the issue raised before it requested this Court to dispose of the petition either on the scheduled date which was 29th March, 2016, or as early as possible thereafter.
2.30 As per the direction of Hon'ble the Apex Court, this Court heard all the matters arising out of the said first information report being IC.R. No.35 of 2014. As the contention was raised that petitioners of Criminal Miscellaneous Application No.19564 of 2016 were not the accused, without entering into merits, the Court permitted the withdrawal of Criminal Page 15 of 68 HC-NIC Page 15 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT Miscellaneous Application No.19564 of 2016. The Investigating Officer was directed to prepare a final report within six weeks and while disposing of the said matter, it continued the interim relief. In rest of the matters, Rule was made returnable.
It would be profitable to reproduce the relevant portion of the order dated April 11, 2016, which reads as under :
"9. While permitting the withdrawal, on instructions from learned Sr. Advocate, Mr. Panchal, and without going into the merits of the matter, it is desirable to afford some protection to the petitioners, herein, who have been protected since 19th October, 2015 onwards. The investigation is going on for about more than one and a half year and the petitioners, herein, have not been arraigned as the accused so far. Therefore, at this juncture, when the concerned IO is present before this Court and is seeking SIX WEEKS time to prepare a report, while permitting the withdrawal of this petition, it is directed that NO COERCIVE actions shall be taken against the petitioners, herein. However, if, the petitioners names Page 16 of 68 HC-NIC Page 16 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT appear in the report, the aforesaid protective umbrella shall continue for a further period of fortnight (15 DAYS) after laying of a report. The petitioners shall be at liberty to approach the appropriate forum for the relief, if, need so arise. This Court has not entered into the merits of the matter and if, such occasion arises, then, same shall be looked into, permitting both the sides to raise their respective contentions.
10. It is also being directed that the petitioners shall be intimated, regarding placing of report by the concerned IO within a period of THREE DAYS from the date of the placing of such report. For the said purpose, the petitioners shall furnish their Email IDs to the concerned IO so that he can communicate them, as directed.
11. DISPOSED OF, accordingly."
3. It emerges from the chronology of events that in the pending civil proceedings for cancellation of registered sale deed, order of injunction has not favoured the complainant before the trial Court in the Special Civil Suit No.44 of 2009. And thereafter in Appeal from Order No.27 of 2016 Page 17 of 68 HC-NIC Page 17 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT before this Court, also he has failed to get any favourable order. Although civil litigation started from the year 2008, she has chosen to launch criminal prosecution by way of FIR in the year 2014. Undoubtedly, the complaint preferred is grossly delayed. For transaction between 1982 and 2009, FIR came to be filed on 2nd August, 2014. It is also quite apparent from the record that the complainant approached the Revenue Authority in the year 2007 and the trial Court for impleading herself as party defendant in Civil Suit No.390 of 2006 preferred by Jayantibhai i.e.son of Naniben on November 26, 2008. Thus, from the year 2007, the complainant was aware of her rights being breached in respect of the suit property, and therefore, for cancellation of the sale deed, the civil suit also came to be preferred, as mentioned hereinabove on 31st January, 2009, being Special Civil Suit No. 44 of 2009.
3.1 In the interregnum period, the property in question has changed hands thrice; as noted by this Court in its order in Appeal From Order Page 18 of 68 HC-NIC Page 18 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT No. 27 of 2016 after obtaining the permission from respective authority of converting into non agricultural land and the construction to a considerable extent also has been carried out on the said land which is nearer to the completion. Nearly four towers and a business hub are at their final leg.
3.2 It is thus the say of the applicants that the respondent No.2-complainant, since has initiated civil as well as revenue proceedings before appropriate forums, she can not plead ignorance of knowledge of her legal rights nor inability of any kind in approaching the police authority or the Court. It is thus the case of the applicants that nearly after about 32 years, due to escalation in the price of the land in the State of Gujarat, a criminal complainant has been filed. On death of Naniben on 17th February, 2002, the respondent No.2complainant would have knowledge of pedigree prepared on 15th February, 1982, which is the genesis of the FIR. An attempt also was made in the year 2007, by preferring Page 19 of 68 HC-NIC Page 19 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT RTS Appeal, and thereafter by way of in Special Civil Suit No. 44 of 2009 seeking partition and cancellation of registration of sale deed. There is no explanation as to why till 2014, no FIR came to be lodged.
3.3 It is emphasized by the applicants who are arraigned as accused that in the years 2007 and 2009 also, knowledge is quite apparent of the transfer of land by other heirs. It is therefore urged that on the ground of gross delay itself complaint deserves to be quashed. The complaint since has been preferred deliberately after an unexplained delay, it would be no relief to relegate the applicants to the Court granting the anticipatory bail. It has been urged fervently that the FIR deserves to be quashed. According to the applicants, challenge made to the transfer of investigation by the complainant even when has resulted in her favour, that per se, cannot be a ground germen to continue prosecution which is malicious and abusive.
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4. It is quite apparent from the details of the accused as given in the FIR that names of all of them are already included in the papers of chargesheet. Not only the accused named in the first information report, but a few more persons have also been arraigned as accused. 4.1 Applicants of Criminal Miscellaneous Application No.12996 of 2014 are the accused Nos.1, 3 and 5, viz. (i) Shri Jayantibhai Sukhabhai Patel, (ii) Shri Dayaljibhai Makanbhai Patel and (iii) Shri Mukeshbhai Makanbhai Patel, who are the legal heirs of late Naniben and Sukhabhai, who are alleged to have conspired to defraud the respondent No.2 and her family members.
4.2 The applicant of Criminal Miscellaneous Application No.12465 of 2014 is Shankarbhai Sukhabhai Patel, who is also the legal heir of late Smt.Naniben Sukhabhai and arrayed as Accused No.2.
4.3 Likewise, Shri Yeshwantbhai Mukundbhai Patel, who is the applicant of Criminal Miscellaneous Page 21 of 68 HC-NIC Page 21 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT Application No.12473 of 2014, is also the heir of Shri Makanbhai Patel and is joined as accused No.4.
They all are alleged of having jointly executed power of attorney in favour of Shri Anil Shashikant who executed total 9 sale deeds in favour of 14 persons on different dates acting as a power of attorney holder of legal heirs of the original owners. All the purchasers were nonagriculturists. Nine different power of attorneys were executed in favour of one Shri Pramod Kantilal Shah (also coaccused) by the nonagriculturists purchasers in the year 1999. Neither Shri Anil Pastagia nor Shri Pramod Shah is the applicant before this Court.
4.4 Petitioner of criminal miscellaneous application 13266 of 2014 is Ramjibhai Kalidas Joshi (accused no. 6 in the FIR and no.8 in the chargesheet) It is alleged that he was sold the disputed land by Mr Anil ShashiKant Patagia who was the power of attorney of both Naniben and Page 22 of 68 HC-NIC Page 22 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT Makanbhai Patel. This petitioner shri Joshi in turn sold this land through his power of attorney Shri Manoj DeviLal Gurjar (petitioner of Criminal Miscellaneous Application No.13264 of 2014) to the petitioner of Criminal Miscellaneous application No.12639 of 2014, Shri Manoj Parshottambhai Movaliya who is one of the directors of Rajhans construction Private Ltd. It is alleged that he knew about the disputed rights of the complainant and yet sold the subject land through his power of attorney. He also applied for permission of converting the land for nonagricultural purpose under section 63 of the Bombay Tenancy Act.
4.5 Other directors of Rajhans constructions Private Limited are Shri Jayesh Batukbhai Desai, Shri Sanjay Parshottambhai Movaliya, Shri Shiv Lal Gokulchand Jain, Shri Himmatbhai Mohanlal Khaini, Shri Jitesh Manjibhai Patel and Shri Manish Praveenbhai Khaini respectively accused Nos.11, 12, 13, 14, 15, 16 in the papers of chargesheet. They are not Page 23 of 68 HC-NIC Page 23 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT named in the FIR, but their names have been later on included in the papers of chargesheet, therefore, they are before this court to seek relief of quashing. They are alleged of committing offence of criminal conspiracy.
5. Learned Senior Counsel Shri R.S. Sanjanwala, appearing with the learned counsel Shri Pravin Gondaliya learned advocate appearing on behalf of the applicants of Criminal Misc. Application Nos.12639 and 12996 of 2014, has fervently argued the matters and has also taken this Court through various provisions of law and also in detail made submissions in respect thereof, to emphasis that the impugned FIR deserves to be quashed. According to learned Senior Counsel, such matters are on increase with the steep rise in the land prices. Bringing criminality into the act and terming it as continuous offence is nothing but gross misuse of machinery of law.
6. A fortiori, learned counsel Shri J.M. Panchal appearing with the learned counsel Shri Pravin Gondaliya for the applicant in Criminal Page 24 of 68 HC-NIC Page 24 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT Miscellaneous Application No.13991 of 2016, has urged that for accused Nos.11 to 16, no specific role has been alleged. Rajhans Construction Private Limited Company is in picture since the year 2008. Therefore, there could not be any question of creating liability of any transaction prior to 2008. The complainant has alleged the forgery of pedigree in the year 1982. Since, there cannot be any vicarious liability under the criminal law nor has any competent court passed any orders against them in the civil matters. He has further urged that Sections 406 and 420 of IPC cannot be attributed to these applicants as there is no privity of contract with the complainant.
7. Learned counsel Shri Hardik A. Dave appears for the applicants of Criminal Miscellaneous Application Nos.12473, 12465, 13264 and 13266 of 2014. He has strenuously urged that belated complaint is fatal to the prosecution. Moreover, essential ingredients of offences alleged are not specified. This is the 2nd FIR for the very Page 25 of 68 HC-NIC Page 25 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT land. The complainant has not approached with clean hands, but with an ulterior motive and therefore, the Court needs to intervene. It is also his say that in a suit of 1954 of 1959, where the challenge is made to the transfer of property by way of registered sale deed, knowledge of sale deed emerges clearly from the year 2000. He further urges that on 17th March, 1990, a power of attorney has been given with interest to Mr. Anil Shah, which is irrevocable. According to him, the special civil suit for determining rights of the parties is already pending. By way of interim relief also, the respondent complainant asked for protection of his right by preferring an interim injunction which came to be decided on 19th October, 2015 against the complainant and later on, Appeal from order No. 27 of 2016 also came to be dismissed. He has sought to rely upon a decision of this Court rendered in case of Mohammed Ibrahim and Ors. Vs. State of Bihar and Anr. reported in (2010) 1 GLH 184. He further urged that the document has not been executed with an intent to Page 26 of 68 HC-NIC Page 26 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT defraud, as it was by way of registered sale that the property has changed hands.
8. Learned counsel Shri Pravin Gondaliya appearing for the applicants in Criminal Miscellaneous Application No.12996 of 2014 has urged that in the year 1982, the revenue entry has been mutated and the challenge has been made in the year 2007. In the year 2014, after nearly seven years criminal prosecution is initiated. According to him, this dispute is predominantly and exclusive of civil nature and civil suit was also filed in the year 2007, for partition of undivided share in the property so also for cancellation of registered sale deeds. Moreover, after six years, when an application for injunction was moved, the same has not yielded in favour of the complainant. He has further urged that Sections 406, 420, 465, 467, 468, 471, 114 and 120B of IPC, would have no applicability, as there was no entrustment of anything in nor is the case of cheating or or forgery under Section 420 of IPC. There is no single document which is allegedly forged. There Page 27 of 68 HC-NIC Page 27 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT is nothing in the investigation to show as to what role the applicant has played nor any specific role has been attributed. He has sought to rely upon a decision of Mohammed Ibrahim & Ors. Vs. State of Bihar & Anr. (supra) wherein, the Apex Court has held that the belated FIR is nothing but a misuse of process of law.
9. Learned Senior Counsel Shri P.M.Thakkar appearing with the learned counsel Shri P.P. Majmudar appearing for the respondent No.2original complainant of Criminal Misc. Application No.12639 of 2014, has urged that the investigation has been carried out under supervision of ACP, Surat City pursuant to the decision of the Apex Court, rendered in case of Special Leave to Appeal (Cri.) No.6113 of 2015. There are no personal allegations against the officer. The chargesheet has already been filed, which reveals that the offences are disclosed and merely on the ground of delayed FIR, the misuse is alleged by the petitioner accused. He also urged that the second plank of submission is Page 28 of 68 HC-NIC Page 28 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT that because the proceedings are filed on civil side, a criminal complaint cannot be filed and equitable relief should not be granted. He also attacked the 3rd submission of applicants that on the revenue side also, complainant has failed and therefore also on the ground of delay, rejection should come. He thus emphasized that what is essentially emphasized is the delay on the part of the compliant and not on merits. So far as the statement of facts are concerned, he has taken this Court through the papers of chargesheet to argue that Revenue Entry No.479 of 1982 gave effect to the said pedigree, which is shown in the record (at page 138), whereas at page 206 of compilation of Criminal Miscellaneous Application No.12639 of 2014, along with the affidavitinreply of the respondent No.2 original complainant, correct pedigree is shown. Complainant is Jekorben, who is the daughter of Ratanjibhai who died on January 24, 1979. He has emphasized that there has been no defence; except the delay. It is further urged that in case of irrevocable power of attorney, no amount has been Page 29 of 68 HC-NIC Page 29 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT paid by the agent. It must be gathered that the amount has been paid by way of consideration in cash. Such transfer was barred by Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "the Bombay Tenancy Act"). He has urged that, to the original owner, notice under Section 135 has never been sent. Entry Nos. 828, 836 have been mutated in favour of Pramod K. Shah which has now been cancelled for being held violative of the Bombay Tenancy Act.
10. According to learned counsel, to the detriment of the original owner believing that in the month of April, 2001, no entry of the registered sale deed has been entered, and therefore, Regular Civil Suit No. 102 of 2003 came to be filed. The application for injunction was given on 30th September, 2005. However, the Sale deed No. 10047 of 2006 and the amended sale deed was executed on 10th July, 2006. Therefore, the title continued to remain with the original owner and subsequent parties have no interest. He further urged that on 10th July, 2006, Entry Page 30 of 68 HC-NIC Page 30 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT No.1373 has been mutated to circumvent the order of injunction, which was operating. Section 52 of the Transfer of Property Act has been relied upon by learned counsel on the ground that the principle of lis pendens would have an applicability on the falsehood perpetuated. The permission has been sought before the concerned authority on wrong premise. Attention is also drawn at Page 249 of the chargesheet to emphasize that there is an endorsement that entry had not been mutated. According to him, there is sufficient material on the record which has been unearthed by the Investigating Agency.
11. In rejoinder, it is urged by learned Senior Counsel Shri R.S. Sanjanwala that the subject matter of dispute is the property deal of the year 1982. It is the say of the complainant that her branch has been denied its share because of the incorrect pedigree and that is the only controversy. The petitioners being bona fide purchasers and when such defence has not been believed by the Investigating Officer, it has Page 31 of 68 HC-NIC Page 31 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT placed the chargesheet. He has emphasized that criminal machinery has been thoroughly misused. 11.1 He further pleaded that in the Regular Civil Suit No. 102 of 2003, there has been an inter se dispute between the branch of Sukhabhai and Makanbhai, which has been settled in the year 2011, whereas the Civil Suit No. 390 of 2006 came to be withdrawn in the year 2009. However, no request was made to transpose themselves. Furthermore, a civil suit came to be filed, being Civil Suit No. 44 of 2009 by the complainant. There are proceedings under the revenue law pending at the behest of the respondent No.2 and on May 5, 2009, N.A permission has been granted in favour of Rajhans Consturction Pvt. Ltd. The said order has not been challenged. He has urged that why the petitioners should be harassed particularly, when all the subsequent purchasers who have been maliciouisly dragged into criminal prosecution. He posed a question as to whether he committed any offence, if he purchased the property by paying substantial Page 32 of 68 HC-NIC Page 32 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT consideration, when other owners are inter se having a bickering.
12. Shri Ronak Raval, learned Additional Public Prosecutor appearing for the respondentState, has urged that the role of each of the accused is given in detail separately in the chargesheet. The Investigating Officer was also aware of Civil Suit. He has otherwise adopted the submissions of learned senior advocate Mr. P.M. Thakker.
13. The written submissions have been provided for and on behalf of the applicants, whereas on behalf of the complainant, relevant dates and events have been provided.
14. On thus hearing both the sides, a vital question that is required to be answered by this Court is whether in a criminal proceeding initiated belatedly in the year 2014, for transaction which had taken place between 1982 to 2009, deserves interference invoking the powers under Article 226 of Constitution of India. Page 33 of 68 HC-NIC Page 33 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT
15. Before adverting to the facts of the instant case, the principles carved out for exercising powers under Article 226 of the Constitution of India, read with Section 482 of Code of Criminal Procedure, deserve a mention.
16. Section 482 Cr.PC provides for exercise of inherent power available to High Court to give effect to any order under the Code to prevent abuse of process of any Court or otherwise to secure ends of justice. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. This inherent jurisdiction under Section 482 of CrPC needs to be exercised sparingly, as held and observed by the Apex Court in case of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., reported in AIR 1992 SC 604. For better appreciation of this aspect, relevant paragraph deserves reproduction at this stage: Page 34 of 68
HC-NIC Page 34 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT "108. 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 F. I. R. do not disclose a cognizable offence, justifying an Page 35 of 68 HC-NIC Page 35 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 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 F.I.R. do not constitute a cognizable offence but constitute only a noncognizable 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 F.I.R.
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 Page 36 of 68 HC-NIC Page 36 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 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."
17. It is thus well settled that to prevent the abuse of process of Court, extraordinary power under Article 226 of the Constitution of India or under Section 482 of Code of Criminal Procedure requires to be exercised with caution. It would be thus necessary to examine as to whether the factual matrix presented by the applicant is such which would warrant the exercise of powers for preventing the abuse of process or for securing the ends of justice.
18. In the aforementioned factual scenario, when such belated criminal prosecution is challenged by the present applicants strenuously by Page 37 of 68 HC-NIC Page 37 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT preferring various petitions, this Court needs to examine the law on the subject of delayed prosecution and essentially of forgery and cheating, which is alleged in the first information report.
19. In the case of Mohammed Ibrahim and others v. State of Bihar and another, reported in (2009) 8 SCC 751, the Apex Court was considering a petition preferred under section 482 of the Code of Criminal Procedure and found that the dispute was essentially civil in nature. The Court held that it is the duty of the criminal Court to check the abuse of process of law, which should ensure that criminal proceedings are not misused for settling scores or pressurizing parties to settle civil disputes.
19.1 The Apex Court though said that the civil disputes in some cases may also contain ingredients of criminal offences, such disputes have to be entertained notwithstanding they are also civil disputes.
Page 38 of 68 HC-NIC Page 38 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 19.2 With regard to the false documents, it also held as to what constitutes a false document, by holding that if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered with a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses. 19.3 The Apex Court further held that in the first category of false documents, it is not sufficient that the document has been made/ executed dishonestly or fraudulently. There would be further requirement that the document should have been made with the intention of causing it to be believed that such document was made/executed by, or by whose authority he knew that it was not made or executed. At this stage, it would be appropriate to reproduce the relevant observations of the said decision, which read as under :
"8. This Court has time and again drawn attention to the growing tendency of the Page 39 of 68 HC-NIC Page 39 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal Courts should ensure that proceedings before it are not used for settling scores or to pressurise parties to to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes. (See G Sagar Suri V. State of U.P. and Indian Oil Corporation V.NEPC India Ltd. ) Let us examine the matter keeping the said principles in mind.
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 dcoument with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or Page 40 of 68 HC-NIC Page 40 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 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, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorized 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.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is Page 41 of 68 HC-NIC Page 41 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT he claiming that he is authorized by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
19.5 The Apex Court in the very decision further held that if there is no "false documents" as defined in section 463 of the Indian Penal Code, offences punishable under sections 467 and 471 are not made out. Mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under sections 467 and 471 of the Indian Penal Code, even if the title to property did not vest in the executant.
19.6 With regard to cheating, the Court held that when a sale deed has been executed conveying a property claiming ownership thereto, it may be possible that the purchaser Page 42 of 68 HC-NIC Page 42 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT under the sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with sale consideration. In the matter before the Apex Court, the complaint was not made by the purchaser. The purchaser was made a coaccused. It was not the case of the complainant that any of the accused tried to deceive him, nor did the complainant alleged that any pretension was there by the first accused while executing the sale deed. Therefore, it was held that it cannot be said that the first accused by the act of executing the sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth acused, by reason of being the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.
At this stage, it would be appropriate to reproduce the relevant observations of the said decision, which read as under : Page 43 of 68
HC-NIC Page 43 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT
"20. When is a sale deed is executed conveying a property claiming ownership thereto, it may be possible for the purchaser under such sale deed to allege that the vendor has cheated him by making a false representation of ownership and fraudulently induced him to part with the sale consideration. But in this case the complaint is not by the purchaser. On the other hand, the purchaser is made a co accused.
21. It is not the case of the complainant that any of the accused tried to deceive him either by making a false or misleading representation or by any other action or omission, nor is it his case that they offered him any fraudulent or dishonest inducement to deliver any property or to consent to the retention thereof by any person or to intentionally induce him to do or omit to do anything which he would not do or omit if he were not so deceived. Nor did the complainant alleged that the first appellant pretended to be the complainant while executing the sale deeds. Therefore, , it can not be said that the first accused by the act of executing sale deeds in favour of the second accused or the second accused by reason of being the purchaser, or the third, fourth and fifth accused by reason of being Page 44 of 68 HC-NIC Page 44 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT the witness, scribe and stamp vendor in regard to the sale deeds, deceived the complainant in any manner.
22. As the ingredients of cheating as stated in Section 415 are not found, it cannot be said that there was an offence punishable under Sections 417, 418, 419 or 420 of the Code.
A clarification
23. When we say that execution of a sale deed by a person purporting to convey a property which is not his, as his property, is not making a false document and therefore and not forgery, we should not be understood as holding that such an act can never be a criminal offence if a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that, the purchaser, may complaint that the vendor committed the fraudulent act of cheating. But a third party who is not purchaser under the deed may not be abler to make such complaint."
20. This Court in the case of Arvindbhai Maganlal Master and another v. State of Gujarat Page 45 of 68 HC-NIC Page 45 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT another, reported in 2015(1) GLH 149, was considering the request of quashment of the first information report, wherein the offences alleged were of criminal breach of trust and cheating. It was alleged that the complainant had paid the entire amount by way of sale consideration at the time of agreement to sell. It owners through their power of attorney holder, failed to execute the sale deed and despite the pendency of suit for specific performance, transferred the property fraudulently in favour of the third party who were other coaccused. The Court held that the facts of the case portrayed desperate efforts on the part of the complainant in dressing up a civil dispute relating to the alleged breach of contract into criminal proceedings. The plain reading of the first information report failed to spell out any of the ingredients of the offence. Even the injunction application moved by the complainant in a suit came to be rejected by the civil Court and the first information report was preferred almost Page 46 of 68 HC-NIC Page 46 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT after three years. The Court held the same as nothing but a clear abuse of process of law.
21. The Apex Court in the case of Ram Jag and others v. The State of U.P., reported in AIR 1974 SC 606, while considering the question of delay in filing the first information report has held that whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors. It was, of course, a case of murder where there was a delay in initiating the proceedings. The Court held that a witness cannot be called upon to explain every hour's delay and a commonsense view has to be taken in ascertaining whether the first information report was lodge after an undue delay so as to afford enough scope for manipulating evidence.
22. In the case of Udai Shankar Awasthi v. State of Uttar Pradesh and another, reported in (2013) 2 SCC 435, the Apex Court has distinguished between "continuous offence" and "instantaneous Page 47 of 68 HC-NIC Page 47 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT offence". It was a case of nonpayment of outstanding amount for the work done on contract. The Court held that it was not a continuing offence as the same had not occurred subsequent to date of rejection of representation made to make payment of the said dues, even though the damage caused by it may have continued. It held that section 472 of the Code of Criminal Procedure provides that in the case of a continuing offence, a fresh period of limitation begins to run at every moment of the time period during which the offence continues. The expression "continuing offence" has not been defined in Code of Criminal Procedure because it is one of those expressions which does not have a fixed connotation and, therefore, the formula of universal application cannot be formulated in this respect. The law on the issue can be summarised to the effect that in the case of a continuing offence, the ingredients of the offence continue i.e. endure even after the period of consummation, whereas in an instantaneous offence, the offence takes place Page 48 of 68 HC-NIC Page 48 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT once and for all i.e. when the same actually takes place. In such cases, there is no continuing offence, even though the damage resulting from the injury may itself continue.
23. In the case of Kishan Singh (Dead) Through LRs. v. Gurpal Singh and others, reported in (2010) 8 SCC 775, the Court has reiterated the principle in filing the first information report belatedly, by holding that prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. It further says that the Court needs to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely Page 49 of 68 HC-NIC Page 49 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT that the allegations were an afterthought or had given a coloured version of events. In such cases the Court should carefully examine the facts before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. The Court further held that the Court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. The Court may also take a view that it amounts to abuse of process of law.
At this stage, it would be appropriate to reproduce the relevant observations of the said decision, which read as under :
"21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explain.Page 50 of 68
HC-NIC Page 50 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT However, deliberate delay in lodging the complaint is always fatal. (vide Sahib Singh Vs. State of Haryana 1997 (7) SCC 231)
22. In cases where there is delay in lodging the FIR, the Court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were and afterthought had given a coloured version of events. In such cases the court should carefully examined the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with malafide intension or ultirior motive of wreaking the vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give went to their frustrations by cheaply invoking the jurisdiction of the criminal Court. The Court proceedings ought not to be permitted to degenerate into a weapon of harassment and prosecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the Court may take a view that Page 51 of 68 HC-NIC Page 51 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT it amounts to an abuse of process of law in the facts and circumstances of the case. (vide Chandrapal Singh Vs. Maharaj Singh; State of Haryana Vs. Bhajanlal; G.Sagar Suri Vs. State of U.P.; and Gorige Pentaiah Vs. State of A.P )
23. The case before us relates to a question of genuineness of the agreement to sell dated 4.1.1988. The said agreement was between Kishori Lal and the respondents and according to the terms of the said agreement, the sale deed was to be executed by 10.6.1989. As the sale deed was not executed within the said time, suit for specific performance was filed by the other party in 1989 which was decreed in 1996.
24. So far, as the present appellants are concerned, agreement to sell dtd. 22.10.1988 was executed in favour of their father and the sale deed was to be executed by 15.6.1989. No action was taken till 1996 for nonexecution of the sale deed. The appellants' father approached the Court after seven years by filing suit No. 81 of 1996 for specific performance. However, by that time, the suit filed by the present respondents stood decreed. The appellants' father filed another suit No. 1075 of 1996 for setting aside the judgment and decree Page 52 of 68 HC-NIC Page 52 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT passed in favour of respondents 1 to 4 . The said suit was dismissed by the Additional District Judge (Senior Division), Khanna on 10.6.2002. Subsequently, the appellants preferred RFA No. 2488 of 2002 on 15.7.2002 against the aforesaid order, and the said appeal is still pending before the Punjab and Haryana High Court."
23.1 In the said decision, the first information report was filed by an inordinate delay. The allegations levelled in the first information report were substantially similar to the allegations made by the appellants therein in Civil Suit No.1075 of 1996, which had been decided against them. The Court held that the appellants lodged the first information report only after meeting their Waterloo in the civil court. The Court held that it is evident that the first information report was lodged with the sole intention of harassing the respondents and enmeshing them in long and arduous criminal proceedings. In the proceedings before the Apex Court, the agreement to sell was dated January 04, 1988, which was executed in favour of the Page 53 of 68 HC-NIC Page 53 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT appellants' father on June 15, 1989. No action was taken till the year 1996. After seven years' period, the father of the appellants approached the civil court by way of filing a suit for specific performance in the year 1996. However, by that time, the suit filed by the respondents stood decreed. The appellants filed another Suit No.1075 of 1996 for quashing and setting aside the judgment and decree, which too was dismissed. Subsequently, he preferred First Appeal in the year 2002 and while the appeal was pending, the first information report came to be filed in July, 2002.
24. The Apex Court in the case of Manoj Kumar Sharma and others v. State of Chhattisgarh and another, reported in AIR 2016 SC 3930, while dealing with the issue of delay in lodging the first information report has held that the said act raises doubt about truthfulness of the allegations. There was delay of five years in lodging the first information report in the said case.
Page 54 of 68 HC-NIC Page 54 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT It would be beneficial to regurgitate the relevant observations of the said decision, which read as under :
"18. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. In our opinion, such extraordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by Respondent No. 2 herein against the appellants, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, Respondent No. 2 herein has tried to rope the appellants in criminal proceedings. We are of the confirmed opinion that continuation of the criminal proceedings against the appellants pursuant to this FIR is an abuse of the process of law. Therefore, in the interest of justice, the FIR deserves to be quashed. In this context, it is apt to quote the following decision of this Court in Jai Prakash Singh vs. State of Bihar & Anr. (2012) 4 SCC 379 wherein it was held as under :Page 55 of 68
HC-NIC Page 55 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT "12. The FIR in a criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/ deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the firsthand account of what has actually happened, and who was responsible for the offence in question."
xxx xxx xxx
20) In the above backdrop, it is also imperative to discuss the scope of inherent power of the High Court under Section 482 of the Code. The appellants before us filed a petition under Section 482 of the Code for quashing of the FIR on the ground that the FIR was filed after a delay of 5 (five) years and is barred by territorial Page 56 of 68 HC-NIC Page 56 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT jurisdiction. The High Court, on the other hand, after taking note of the fact that the investigation is in the final stage in the matter and a charge sheet is ready to be filed before the Judicial Magistrate First Class, ordered for its continuance without taking into consideration that it is barred by law. The court at Durg did not take notice of the fact that there is a legal bar engrafted in the matter for its continuance and the proceedings have been maliciously instituted after a delay of five years with an ulterior motive for wreaking vengeance on the appellants. This point has been more clarified in State of Haryana and Others vs. Bhajan Lal and Others (1992) Supp (1) SCC 335, wherein this Court also stated that though it may not be possible to lay down any precise, clearly defined, sufficiently channelised and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 of the Code for quashing of the FIR should be exercised, there are circumstances where the Court may be justified in exercising such jurisdiction.
These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations are so absurd and inherently Page 57 of 68 HC-NIC Page 57 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT 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; where there is an expressed legal bar engrafted in any of the provisions of the Code; and 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.
Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the first information report or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice."
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25. In the matter on hand, the purchasers of the land do not allege anything and they are arrayed as coaccused. Presentation of incorrect pedigree, purchase of agricultural land allegedly by nonagriculturists and transfer of land despite the entry of injunction of the suit of the year 2003 and payment of cash consideration, are some of the grounds to allege forgery and cheating.
26. So far as the allegations of getting the branch of heirs of Ratanji are concerned, this Court, as noted above, has found out from the record that the respondent No.2complainant has failed in getting the entry mutated so far. Of course, the proceedings before the SSRD were pending at the time of filing of the complaint. Much time has elapsed after the year 2007 also. When the father of the complainant was alive, he never challenged the said entry. At the cost of reiteration also, it is necessary to mention that after the attempt to mutate the entry in the name of the complainant and her siblings had failed before Deputy Collector and the Collector, she Page 59 of 68 HC-NIC Page 59 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT took a recourse of impleading herself as a party in the suit filed by one of the heirs of Naniben Sukhabhai, who had grievance against her own brother, as the property was bequeathed upon his brother Shankarbhai, due to the will of Naniben in the year 2009.
27. Thereafter, for the first time, she chose to initiate civil proceedings by way of preferring Special Civil Suit No.44 of 2009, seeking her share in the property and also seeking direction of cancellation of various registered deeds, which have been effected in a long span between the years 1982 to 2009. None of the Courts at any stage had supported the cause of the respondent No.2complainant. It is not culling out nor explained at all as to why in the year 2009, she did not choose to initiate the criminal prosecution against any of the heirs and/or against subsequent purchasers. It is after her having failed to secure any relief before the civil Court and from the High Court in Appeal from Order, she has initiated extremely delayed criminal prosecution.
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28. As was submitted before this Court, initially the Police Inspector of the concerned Police Station had prepared a report, where the prosecution was proposed against the heirs of Makanbhai and Sukhabhai, and TalaticumMantri, who mutated the entry only in the name of those two heirs. However, later on, another report was prepared where some of the present petitioners and others were alleged to have been involved and by the direction of the Commissioner of Police, Surat, the prosecution came to be launched in the form of the first information report against all the accused. Even if one looks at the first information report minutely, it is difficult to find out a whisper explaining the huge delay of 32 years in lodgment of the first information report. The question of plausible and satisfactory explanation also would not arise as there is nothing to indicate as to why such unpalatable and gross delay has been caused in initiating the prosecution. From the year 2007, it is an official record which vindicates the Page 61 of 68 HC-NIC Page 61 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT knowledge of the complainant of her rights towards the disputed land. Nothing prevented her from initiating the prosecution and even if there were any such reasons, the first information report is wholly silent on the same. Delay alone at times can be a towering reason in a matter of present kind when the issue involves essentially and predominantly violation of civil rights.
29. The respondent No.2original complainant, as detailed hereinbefore, has already taken the legal recourse by way of preferring civil litigations against the heirs of Makanbhai and Sukhabhai and also by joining others during the pendency of the proceedings. There are certain evidence which are emerging indicating that the subsequent buyers would have knowledge of some kind of civil and revenue litigations going on between the heirs at least after the year 2007 and, therefore, M/s.Rajhans Construction Pvt. Ltd., whose cheques were also discounted after the civil litigation was initiated by the respondent No.2, may not have been oblivious of Page 62 of 68 HC-NIC Page 62 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT such subsequent developments. The police papers prima facie reveal certain amount of irregularities and also maneuvering in the transaction of the land at the level of some of the subsequent purchasers, however, there are sufficient number of civil laws, which can redress those grievances. Stringent actions at the hands of prescribed authorities are also not alien to the civil laws. The transfer of agricultural land to a nonagriculturist and the grant of permission of N.A. to the purchaser, so also nonrevelation of certain vital details while getting those permissions, are some of the issues which can be decided by the authorities concerned, even by cancelling the permission of N.A. if it so deems fit after availing opportunity to the parties. These grounds by themselves would not explain the delay, which has been caused nor could cure the requirement of law where ordinarily in criminal prosecution, each day's delay is required to be explained. Even on giving benefit of doubt to the respondent No.2 on the premise of less education and limited Page 63 of 68 HC-NIC Page 63 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT understanding of rights, then also after once having set the civil and revenue machineries, from the year 2007, seven years of delay thereafter also, does not get explained at all.
30. This Court cannot shut its eyes to the uncomfortable reality that with the price of the land rising in leaps and bounds in the State of Gujarat, especially after the year 2006, many such litigations came up after a considerably a long years of delay. It is equally disturbing that the law of limitation and some of the other laws, which ensured certain amount of guarantee to the purchasers of the property to enjoy the property peacefully after a certain fixed period of guarantee by the statute, also have been impudently trampled by setting into motion the the criminal machinery after a prolonged delay. Frustrated litigants who ventilate their grievances by resorting to criminal machinery deserves to be sternly checked. The Court is also not oblivion of the fact that civil litigations take many years and, therefore, many of the Page 64 of 68 HC-NIC Page 64 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT unscrupulous elements exploit such situation by also presenting coloured version of events or where the line of distinction between civil and criminal rights is thin or overlapping.
31. As the chargesheet has already been laid in the present case, there is already an alternative way available with the Court of relegating the applicants to the Court concerned for making an application for discharge. In the detailed notes, the prosecuting agency has pointed out as to why it has alleged against each of the applicants in the papers of chargesheet. Original owners Makanbhai and Naniben Sukhabhai who got mutated the revenue entry in the year 1982 could be alleged of omitting a branch of heirs, but vicarious liability is foreign to the criminal law and, hence, this deliberate, thoughtful and unpardonable delay on the part of the litigant who lost on civil side at interim stage should be simply held impermissible.
32. As indicated while discussing the chronology of events the grant of power of attorney by some Page 65 of 68 HC-NIC Page 65 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT of the heirs in respect of entire parcel of the land to the third party and that third party to also transfer the land by way of registered sale deed thrice, may have witnessed some of the irregularities in the transactions, which are to be taken care of by the concerned authorities under the civil and revenue laws. That per se, may not give a ground for criminal prosecution against the subsequent purchasers also. This Court notices that the entire generation has vanished as not only Makanbhai and Sukhabhai have passed away, but some of their heirs too have also expired. Criminal prosecution cannot be allowed under the banner of "continuous offence"
as alleged. Now to insist on those who have survived them and permitting such prosecution against the subsequent buyers would be nothing but to permit sheer abuse of process of law by giving a weapon of harassment and also of extracting money by means other than legal, misusing obtensibly legal process.Page 66 of 68
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33. For the foregoing reasons, the present group of applications succeed and the same are, accordingly, allowed. The first information report being IC.R. No.35 of 2014 registered with DCB Police Station, Surat, and all the proceedings emanating therefrom, are quashed and set aside only qua the present applicants. 34.1 Allowing these applications would not in any manner seal the fate of the respondent No.2original complainant so far as her rights under the civil laws are concerned. As noted above, she is already before the competent fora to establish her right in the property and also for getting the registered sale deed cancelled.
34.2 This disposal shall not affect the right of the respondent No.2 to pursue those remedies available under the law, nor would those authorities in any manner consider the outcome on these applications against the complainant, her siblings and her heirs. Rule is made absolute accordingly. A Yadi be sent to Page 67 of 68 HC-NIC Page 67 of 68 Created On Sat Mar 25 00:31:40 IST 2017 R/CR.MA/12639/2014 CAV JUDGMENT the concerned trial Court for passing consequential orders in this respect. Direct Service is permitted.
(MS SONIA GOKANI, J.) Aakar Page 68 of 68 HC-NIC Page 68 of 68 Created On Sat Mar 25 00:31:40 IST 2017