Gujarat High Court
Vinitaben D/O Pravinbhai Mansukhbhai ... vs State Of Gujarat & 2 on 24 April, 2017
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/1117/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 1117 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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VINITABEN D/O PRAVINBHAI MANSUKHBHAI PATEL W/O
SUDHANSHUBHAI....Applicant(s)
Versus
STATE OF GUJARAT & 20....Respondent(s)
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Appearance:
MR S.V.RAJU, SENIOR ADVOCATE with MR. BHADRISH S RAJU,
ADVOCATE for the Applicant(s) No. 1
MR DIPAK R DAVE, ADVOCATE for the Respondent(s) No. 2
MR KP RAVAL, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE B.N. KARIA
Date : 24 /04/2017
CAV JUDGMENT
1. The applicant-accused no.4 has preferred this application under Section 482 of the Code of Page 1 of 22 HC-NIC Page 1 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT Criminal Procedure {"CrPC" for brevity} for quashing and setting aside the complaint, being C.R. No. I-16/2012 registered with Vidyanagar Police Station, District: Anand for the offence punishable under Sections 406, 420, 465, 466, 467, 468, 471 and 114 of the Indian Penal Code [IPC].
2. The facts leading to filing of the present application are as under:
2.1 An agricultural land, bearing survey nos. 1354, 1354, 1114, 1355, 1361, located at village Karamsad was running in the name of heirs of late Chunibhai Desaibhai Patel and late Samatbhai Desaibhai Patel in the revenue records. That, accused no.1 Mahendrabhai Purshottambhai Patel had obtained a power of attorney for administering the said property and on 30.06.2008, by an agreement to sell, he had accepted Rs. 2 lacs in cash from the respondent no.2-complainant. That thereafter, the complainant paid Rs. 3 lacs in cash Page 2 of 22 HC-NIC Page 2 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT and on making arrangement for remaining amount, the complainant contacted the said Mahedrabhai Patel (accused no.1) and told him to get the title clear of the said property and execute sale deed thereof. That, since the accused no.1 needed additional amount on 25.05.2009 a sum of Rs. 10.50 lacs was paid in cash to the accused no.1, and accordingly, in all an amount of Rs. 15.50 lacs was paid towards the purchase price of the said land by the complainant. That, despite accused no.1 being contacted several times for executing the sale deed, accused no.1 did not properly respond to his calls, and therefore, the complainant made inquiries in the office of Mamlatdar, Anand (Rural) and found that the accused no.1 and his associates Jayeshbhai Ramabhai Parmar (accused no.2) and Sarojben Rajeshbhai Patel (accused no. 3), despite not being legal heirs of the deceased-Chunibhai Desaibhai Patel had, on 1st June, 2010, made a false affidavit Page 3 of 22 HC-NIC Page 3 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT and declared false facts and thereby on 03.06.2010, they created a false pedhinama (pedigree) showing wife Savitaben as a legal heir of deceased Chunibhai Desaibhai Patel and Sarojben as daughter and also produced false death certificate and got mutated false entries regarding the death of deceased in the revenue records. That, on 01.06.2010, on a Non Judicial Stamp Paper of Rs.
50, Sarojben Chunibhai Patel (accused no.3), despite not being the daughter of Chunibhai Desai, showed herself to be the daughter and used the document as genuine one and executed a sale deed in the name of other persons, despite having received Rs. 15.50 lacs, which was paid to accused no.1-Mahendrabhai Patel. That, the applicant- Vanitaben Sudhanshubhai Patel (accused no.4) and Sendhabhai @ Ranchhodbhai Rabari (accused no.5) also got false entries mutated and used such documents as genuine, and thereby cheated the Page 4 of 22 HC-NIC Page 4 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT complainant, giving rise to filing of the complaint.
3. Heard learned senior advocate Mr. S. V. Raju with Mr. Bhadrish S. Raju, appearing on behalf of the applicant, learned advocate Mr. Dipak R. Dave appearing on behalf of the respondent no.2 and learned APP Mr. KP Raval appearing on behalf of the respondent no.1-State.
4. Learned senior advocate Mr. S. V. Raju appearing on behalf of the applicant has submitted that the applicant is a bonafide purchaser and has played no role whatsoever. That, if the averments made in the complaint are perused in its totality, then it would be crystal clear that such avertments do not attribute any overt act or any active part having been played by the applicant. That, the dispute; if any, is a civil dispute which is sought to be given a criminal colour and criminal proceedings are used as a shortcut to obtain civil rights. That, criminal proceeding is maliciously instituted with an Page 5 of 22 HC-NIC Page 5 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT ulterior motive for wreaking vengeance on the present applicant and with a view to spite her due to private and personal grudge. That, the allegations made in the FIR are so absurd and inherently improbable that on the basis of which no prudent person can ever reach to a conclusion that there is sufficient ground for proceedings against the present applicant. That, by a public notice dated 03.02.2010, which was published in a leading newspaper having wide circulation in Anand viz. Naya Padkar, the applicant through her advocate got a public notice issued inter-alia stating that the land in question was to be purchased from Chunibhai Desaibhai Patel, Chanchalben Maganbhai Patel, Jasvantiben Maganbhai Patel and Madhusudan Maganbhai Patel and Mahendrabhai Parshottambhai Patel, who was their Power of Attorney holder. That, after publication of the aforesaid notice for title clearance, no objections Page 6 of 22 HC-NIC Page 6 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT were received from anyone, and therefore, the applicant entered into a registered agreement to sale which was executed by power of attorney- Mahendrabhai Patel on behalf of Jaiprakash, Jasvantiben and Madhusudanbhai. That, the so called agreement to sale, as claimed by the complainant in his favour, is an unregistered, unnotarized document and it appears to be prima facie tampered with, as there are deletions. It does not even mention that it is executed by the said power of attorney. That, a Civil suit has been filed by the original owners of the land [ ie., sellers] through their power of attorney Mahendrabhai Patel against the complainant and Sarojben for cancellation of the agreement to sell in favour of the complainant and for declaring the same as null and void. He has further argued that except entering into an agreement to sale, making payment of the earnest amount by cheque and thereby, signing as Page 7 of 22 HC-NIC Page 7 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT a confirming party in the sale document executed, thereafter, both of which are registered, the applicant has not played any part in the entire transaction. Thus, it appears that it is a pure and simple civil matter, which has been given a colour of criminal proceedings.
5. On the otherside, Mr. Dipak R. Dave, learned advocate appearing on behalf of the respondent no.2 has strongly opposed the submissions made by learned senior advocate Mr. S. V. Raju appearing on behalf of the applicant and argued that in fact, disputed land was purchased by the respondent no.2 and the agreement to sell (Banakhat) was executed by the owners of the land. That, initially a sum of Rs. 2 lacs was given to the original owners of the land, at the time of agreement to sell, and thereafter, in all he was paid Rs. 15.50 lacs. That, the original owners in collusion with the present applicant hatched conspiracy, with a view to Page 8 of 22 HC-NIC Page 8 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT defraud the respondent no.2-complainant, fabricated several documents, and thereby overreached the process of law and executed the registered sale deed of the land in question. He has invited attention of this Court to certain documents produced by him showing the date of death in two different certificates issued by the Talati-cum- Mantri, Gram Panchayat, Karamsad and Karamsad Nagarpalika, Karamsad, pedigree showing the legal heirs of the deceased Chunibhai Desaibhai Patel who died on 7th March, 1973, death certificate of Chunibhai Desai Patel issued by the Sardar Patel Nagar Seva Sadan, Karamsad and Talati-cum-Mantri showing date of death, affidavit filed by alleged daughter Sarojben Chunibhai Patel, daugther of deceased Chunibhai Patel and argued that in fact, she was not real daughter of Chunibhai. It is further argued that the pedigree is the false document, which was created by the applicant by hatching Page 9 of 22 HC-NIC Page 9 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT conspiracy with other co-accused. He has further argued that the applicant and her husband were knowing that Sarojben had expired, however, some third party was taken before the Notary, who by impersonating herself, forged a power of attorney in the name of Sarojben Chunibhai Patel as well as an affidavit also. That, forged public documents were created by the present applicant while aiding the other co-accused, with a view to shadow the rights of the complainant in a pre-planned manner. That, pedigree and death certificate were fabricated and created in collusion with the officer of Karamsad Municipality and Talati-cum-Mantri. That, applicant is beneficiary of the fraud. He has also taken active participation with the help of her husband with a knowledge of the entire transaction. That, the applicant has approached this Hon'ble Court at a very premature stage. That, looking to the seriousness of the offence and from the averments Page 10 of 22 HC-NIC Page 10 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT made in the complaint, it is clear that prima facie case against the applicant is made out for the offence punishable under Sections 406, 420, 465, 466, 467, 468, 471 and 114 of the Indian Penal Code, as a public document has been forged and fabricated by the applicant with the aid of other co- accused. Therefore, it was requested by him to dismiss the present application with costs. In support of his arguments, learned advocate Mr. Dipak R. Dave appearing on behalf of the respondent no.2 has relied on the judgments reported in 2009(2) GLH 572, 2007(1) SCC -55 and (2012)10 SCC-155.
6. Learned APP Mr. KP Raval appearing on behalf of the respondent no.1 has supported the arguments advanced by learned advocate appearing on behalf of the respondent no.2 and stated that considering the seriousness of the offence, a thorough investigation into the matter is Page 11 of 22 HC-NIC Page 11 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT required. From the averments made in the complaint, prima facie case is made out against the present applicant. That, the applicant has approached this Court immediately after registration of the complaint and this court while issuing rule was pleased to grant interim relief in her favour, and therefore, it was not possible for the Investigating Agency to investigate into the offence. According to him, without making investigation, no true and correct facts would be found, and therefore, a thorough investigation is required to be made in the present case. Hence, no powers under Section 482 CrPC may be exercised by this Court, at this stage. It was therefore requested by him to dismiss the present application.
7. Having considered the facts of the case, submissions made by learned advocates appearing for the respective parties and documentary evidence produced on the record, it appears that Page 12 of 22 HC-NIC Page 12 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT the respondent no.2 entered into an agreement with the original owners of the land in dispute to, purchase the said land on 30th June, 2008. As per averments made in the complaint, a sum of Rs. 2 lacs was paid by her to Shri Mahendrabhai-accused no.1 by cash and thereafter, another Rs. 3 lacs were paid by her in cash. Accused no.1 is shown in the complaint as a power of attorney. Thereafter, request was made by the complainant to execute sale deed, after clearing the title of the land, but a request was made by the power of attorney for further amount, and therefore, as per the demand, on 25th May, 2009, another sum of Rs. 10.50 lacs was paid in cash to the accused no.1- Mahendrabhai Patel and receipts were given to him. Thereafter also, the complainant approached Mahendrabhai Patel-accused no.1 for registration of sale deed, but no satisfactory reply was given by him, and therefore, the complainant inquired from the office Page 13 of 22 HC-NIC Page 13 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT of the Mamlatdar, Anand (Rural) and found that a false affidavit was made on 1st June, 2010 and pedigree was also prepared on 3rd June, 2010 showing the name of Savitaben as wife of deceased Chunibhai Patel and Sarojben as daughter of the deceased. The first such affidavit was prepared on 1st June, 2010 on a non-judicial stamp of Rs. 50/- by Sarojben Chunibhai Patel identifying herself as daughter of deceased Chunibhai Patel. As per the averments made in the complaint, all the forged documents were created and they were used as true and genuine. However, the complainant paid Rs. 15.50 lacs to Mahendrabhai Patel, however sale deed was executed by the owners of the land to any other person by hatching conspiracy with other government officials. It appears that in the complaint, no averments are made by the complainant against the present applicant; except showing her name as an accused no.4. No role is Page 14 of 22 HC-NIC Page 14 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT attributed by the complainant in his complaint involving her in the offence alleged. She was no party to agreement executed in favour of the complainant on 1st June, 2010. It is not the case of the complainant that the applicant has received any amount from the complainant in connection with the said deed of the land purchased by him. No affidavit was created by the applicant on 1st June, 2010 and no pedigree was prepared on 3rd June, 2010. It transpires from the record that one public notice was issued in daily newspaper on 3rd February, 2010 declaring her intention to purchase the property from the original owners of the land, but no objection was raised by the respondent no.2. Thereafter, an agreement to sell of the land was executed in favour of the applicant by the original owners through their power of attorney-accused no.1 selling the land in consideration of Rs. 7,50,000/-, which was duly registered with the office Page 15 of 22 HC-NIC Page 15 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT of the Sub-Registrar on 10th February, 2010. Thereafter, it appears that the land was finally purchased by Shri Hiren Rohitbhai Patel by registered sale deed dated 11th June, 2010 for a consideration of Rs. 13,40,000/- from the original owners of the land. The applicant was a confirming party of the said deed struck by purchaser namely Hiren Patel and she was paid Rs. 3,00,000/- by way of cheque dated 16th June, 2010. The power of attorney was executed by the original owners of the land in favour of the accused no.1 on 29th May, 2010 as well as on 27th June, 2008. The respondent no.2- complainant entered into an agreement to purchase the land from the original owners of the land through their power of attorney-accused no.1 on 30th June, 2008 for a rate of Rs. 23,000/- per guntha and as per the averment made in the agreement to sale, a sum of Rs. 2 lacs were paid by him to the owners of the land by cash. So far as the document Page 16 of 22 HC-NIC Page 16 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT produced by the respondent no.2, prima facie appears that the applicant was never party in executing any of the document. It appears that a suit, being Special Civil Suit No. 248/2011 was filed before the Principal Senior Civil Judge at Anand by original owners of the land in question against the respondent no.2 for cancellation of the agreement to sell alleged to have been executed in favour of the complainant on 21st November, 2011. Thereafter, it appears that after filing of the Civil Suit by the original owners of the land against the complainant, this complaint was filed on 20th January, 2012.
8. In case of Minu Kumari & Anr. v. State of Bihar & Ors. reported in (2006) 4 Supreme Court Cases 359, it is held that;
'Section 482 CrPC does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent Page 17 of 22 HC-NIC Page 17 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT jurisdiction may be exercised, namely, (i) to give effect to an order under the Code,(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrongin course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest"
(when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision."
9. In case of State of A.P. v. Aravapally Venkanna & Anr., reported in 2009(2) GLH 572, the Hon'ble Supreme Court has held that exercise of power under Section 482 CrPC is an exception and not the rule. Acceptability of materials to fasten Page 18 of 22 HC-NIC Page 18 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT culpability is a matter of trial. Court does not function as a court of appeal or revision. Court must be careful to see that its decision is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. It is not necessary that there should be meticulous analysis of case to find out whether case would end in conviction or acquittal. When FIR discloses commission of an offence, interference with FIR at threshold is to be in very exceptional circumstances.
10. In case of State of Madhya Pradesh v. Surendra Kori, reported in (2012) 10 SCC 155, it is held by the Hon'ble Supreme Court that High court should normally refrain from giving prima facie decision and quashing the proceedings in a case where facts are incomplete and hazy. More so when evidence has not been collected and produced, and issues involved, whether factual or legal, are of wide Page 19 of 22 HC-NIC Page 19 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT magnitude and incapable of being seen in their true perspective without sufficient material being placed on record.
11. In case of Kamaladevi Agarwal v. State of West Bengal, reported in 2001(0) GLHEL-SC 13812, complaint was quashed on the ground that document alleged to be forged was under scrutiny by Supreme court in civil proceedings initiated by the complainant. The Hon'ble Supreme Court held that civil litigation is pending in different Courts even though higher in status and authority would not be ground to quash complaint.
Considering the facts of this case, the dispute involved is of a civil dispute. Criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such type of transactions. In this category of Page 20 of 22 HC-NIC Page 20 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT cases, High Court may quash criminal proceedings if in its view, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case.
12. This court is of the opinion that it would be unfair and/or contrary to continue with criminal proceedings and/or continuation of the criminal would cause abuse of process of law, despite the fact that the applicant has not participated in any of the transactions with complainant and/or had played any role in creating any document, as argued by learned advocate appearing on behalf of the respondent no.2. To secure the ends of justice, it would be appropriate to put to end to the impugned criminal proceedings, qua the applicant herein.
13. In view of the above, this Criminal Misc. Page 21 of 22 HC-NIC Page 21 of 22 Created On Mon Aug 14 08:59:06 IST 2017 R/CR.MA/1117/2012 CAV JUDGMENT Application is hereby allowed. Complaint, being C.R. No. I-16/2012 registered with Vidyanagar Police Station, District: Anand is hereby quashed and set aside with all consequential proceedings, qua the applicant alone. Needless to mention that the observations drawn by this Court would not in any way influence the trial qua other accused persons.
14. Rule nisi is made absolute to the aforestated extent. Ad-interim relief stands confirmed. However, there shall be no order as to costs.
(B.N. KARIA, J.) ksdarji Page 22 of 22 HC-NIC Page 22 of 22 Created On Mon Aug 14 08:59:06 IST 2017