Gujarat High Court
Jaysinh Amarsinh Patel vs State Of Gujarat on 6 October, 2023
NEUTRAL CITATION
R/CR.MA/5298/2014 JUDGMENT DATED: 06/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 5298 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE M. R. MENGDEY Sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAYSINH AMARSINH PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR K J PANCHAL, ADVOCATE WITH
MR VC VAGHELA(1720) for the Applicant(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 2
MR RONAK RAVAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 06/10/2023
ORAL JUDGMENT
1. The present application has been filed by the applicant - original accused under Section 482 of the Code of Criminal Procedure seeking quashing and setting aside the impugned FIR Page 1 of 8 Downloaded on : Sat Oct 07 20:44:33 IST 2023 NEUTRAL CITATION R/CR.MA/5298/2014 JUDGMENT DATED: 06/10/2023 undefined being I.C.R.No.39 of 2014 registered with Ankleshwar (Rural) Police Station for the offences punishable under Sections 406, 420, 465, 467, 471, 120(B) and 114 of the Indian Penal Code, 1860 (herein after referred to as the "IPC").
2. The facts and circumstance giving rise to filing of present petition are as under:-
2.1 The applicant happens to be practicing as an Advocate and Notary at Ankleshwar. He was also empaneled as an advocate on the panel of State Bank of India, Sajod Branch. The co-accused, who were holding the bank account with the complainant-bank, had applied to the complainant-bank for loan and had furnished certain documents like Village Form Nos.7 and 12, 8A, 6 etc. qua land bearing Survey No.31 situated at Village:Sajod for procuring the loan of Rs.3 lacs. The said documents were forwarded to the present applicant for issuance of Title Clarence Certificate. On the basis of the said documents, the applicant had issued a Title Clarence Certificate and on the basis of the said Title Clarence Certificate, the loan amount was disbursed by the bank in favour of the co-accused. Subsequently, the documents furnished by the co-accused were found to have been forged and thus, the FIR in question came to be lodged.
3. Learned advocate for the applicant has submitted that the applicant has been practicing as an advocate and notary at Ankleshwar. The applicant was empaneled as an advocate on the panel of State Bank of India, Sajod Branch. The co-accused had approached the officers of the bank for the purpose of loan Page 2 of 8 Downloaded on : Sat Oct 07 20:44:33 IST 2023 NEUTRAL CITATION R/CR.MA/5298/2014 JUDGMENT DATED: 06/10/2023 undefined and had also furnished certain documents to the bank in that regard. The said documents were forwarded by the bank to the present applicant for the purpose of issuance of Title Clearance Certificate and on the basis of the said documents, the applicant had issued a Title Clearance Certificate. The applicant cannot be said to have committed any offence merely by issuing a Title Clearance Certificate.
3.1 Learned advocate for the applicant has submitted that there is nothing on record to indicate that the applicant had conspired with the co-accused persons and as a part of the said conspiracy, a Title Clearance Certificate was issued by the present applicant. The ingredients qua the offences alleged against the present applicant are not made out. He, therefore, submitted to allow the present application by quashing and setting the impugned FIR, as mentioned herein above.
4. Learned advocate for the applicant has relied upon the judgment of the Apex Court in Central Bureau of Invesgiation, Hydrabad Vs. K.Narayana Rao reported in 2012 (3) G.L.H.373.
5. Learned APP has opposed the present application, inter aila, contending that it was incumbent upon the present applicant to verify the record found with Revenue Authorities as well as Sub-Registrar before issuing a Title Clearance Certificate. No such verification has been undertaken by the present applicant before issuance of the certificate in question. This indicates a clear conspiracy on the part of the present applicant and the other co-accused.
Page 3 of 8 Downloaded on : Sat Oct 07 20:44:33 IST 2023NEUTRAL CITATION R/CR.MA/5298/2014 JUDGMENT DATED: 06/10/2023 undefined 5.1 Learned APP has submitted that the documents, which were produced by the co-accused were found to have been forged. Thus, the ingredients for the offence alleged against the present applicant are clearly made out. He, therefore, submitted to dismiss the present application.
6. Learned advocate for the respondent no.2 has also opposed the present application, inter alia, contending that the applicant had issued Title Clearance Certificate in question without due verification of the relevant records. Therefore, it can be gainsaid that the petitioner had conspired with the other co-accused persons and was instrumental for commission of the offence in question. He, therefore, submitted to dismiss the present application.
7. Heard learned advocates for the parties and perused the material available on record. Upon perusal of the entire record, the role attributed to the present applicant in commission of the offence in question is to the effect that the applicant had issued a Title Clearance Certificate on the basis of the documents which were subsequently found to have been forged. Thus, the role attributed to the present applicant is in very limited compass.
8. As per the case of prosecution, the applicant and the other co-accused had hatched a conspiracy for commission of the offence in question. The record of investigation is absolutely silent as regard any such conspiracy. There is nothing on record to indicate the applicant and other co-accused were known to each other or had ever met each other before commission of the Page 4 of 8 Downloaded on : Sat Oct 07 20:44:33 IST 2023 NEUTRAL CITATION R/CR.MA/5298/2014 JUDGMENT DATED: 06/10/2023 undefined offence or there was any previous meeting of minds between the applicant and the other co-accused prior to commission of offence in question. On the contrary, the record indicates that the documents, which were furnished by the co-accused to the bank, were forwarded to the present applicant by the bank for issuance of Title Clearance Certificate. The documents in question were duly signed and stamped by the officers of the bank and therefore, there appears to be a reason for the applicant to believe that those documents were genuine. There is nothing on record to indicate that the duty was cast upon the present applicant to verify the documents forwarded by the bank. On the contrary, when the documents in question were forwarded by the bank to the present applicant duly signed and stamped, it was incumbent upon the bank to verify the genuineness of the said documents. Since it is the case of prosecution against the present applicant that he had not verified the record of the revenue authorities and sub-registrar before issuance of Title Clearance Certificate, when the documents on the basis of which the certificate in question was issued by the applicant were forwarded to him by the bank duly signed and stamped, it was reasonable for the applicant to believe the said documents to be genuine. In that case, the conduct on the part of the applicant in not verifying the records, as aforesaid, can merely be said to be negligence on his part and no criminality can be attached to the said conduct.
9. This Court in its judgment in case of Ashokbhai Rameshchandra Ghantivala v/s State of Gujarat & Anr. reported in 2009 (2) G.L.H. 491 has observed as under:
Page 5 of 8 Downloaded on : Sat Oct 07 20:44:33 IST 2023NEUTRAL CITATION R/CR.MA/5298/2014 JUDGMENT DATED: 06/10/2023 undefined "A plain reading of Section 13 makes it clear that a complaint against a notary in exercise or purported exercise of his functions under the Act has to be made in writing by an officer authorised by the central Government or the concerned State government by general or special order in this behalf. Unless a complaint is made in the manner prescribed, no Court is empowered to take cognizance of the offence. This view finds support from the objects and reasons behind the said provision, which reads thus :"the Committee consider that protection should be given to notaries in respect of cognizance of offences. They think that protection should be given only to notaries who commit an offence acting or purporting to act in the discharge of their functions under this Act. This clause has been inserted with this object. From the objects and reasons, it is apparent that even if an offence is committed by a notary while acting or purporting to act in the discharge of his functions under the Act a complaint can be lodged only as provided under Section 13 of the Act. Thus any offence committed by a notary acting or purporting to act in discharge of his functions under the Act would fall within the ambit of the Section and a Court can take cognizance of such offence only if the complaint is made in the manner laid down in the Section"
10. Before the Apex Court in case of Central Bureau of Invesgiation, Hydrabad Vs. K.Narayana Rao reported in 2012 (3) G.L.H.373, the facts before the Apex Court were absolutely similar to that of the present case and the applicant before the Apex Court was also arraigned as an accused, as he had issued a legal opinion as regards title for disbursement of loan. In the said judgment, the Apex Court has observed as under:-
"10. .... It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one Page 6 of 8 Downloaded on : Sat Oct 07 20:44:33 IST 2023 NEUTRAL CITATION R/CR.MA/5298/2014 JUDGMENT DATED: 06/10/2023 undefined conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227."
11. In Paragraph No.16 of the judgment, the Apex Court has observed as under:-
"16. .... It is not in dispute that the respondent is a practicing advocate and according to Mr. Venkataramani, he has experience in giving legal opinion and has conducted several cases for the banks including Vijaya Bank. As stated earlier, the only allegation against him is that he submitted false legal opinion about the genuineness of the properties in question. It is the definite stand of the respondent herein that he has rendered Legal Scrutiny Reports in all the cases after perusing the documents submitted by the Bank. It is also his claim that rendition of legal opinion cannot be construed as an offence. He further pointed out that it is not possible for the panel advocate to investigate the genuineness of the documents and in the present case, he only perused the contents and concluded whether the title was conveyed through a document or not. It is also brought to our notice that LW-5 (Listed Witness), who is the Law Officer of Vijaya Bank, has given a statement regarding flaw in respect of title of several properties. It is the claim of the respondent that in his statement, LW-5 has not even made a single comment as to the veracity of the legal opinion rendered by the respondent herein. In other words, it is the claim of the respondent that none of the witnesses have spoken to any overt act on his part or his involvement in the alleged conspiracy. ..."
12. In the result, the present application is allowed. The impugned FIR being I.C.R.No.39 of 2014 registered with Ankleshwar (Rural) Police Station for the offences punishable under Sections 406, 420, 465, 467, 471, 120(B) and 114 of the Page 7 of 8 Downloaded on : Sat Oct 07 20:44:33 IST 2023 NEUTRAL CITATION R/CR.MA/5298/2014 JUDGMENT DATED: 06/10/2023 undefined Indian Penal Code as well as all other consequential proceedings arising out of the aforesaid F.I.R are hereby quashed and set aside.
Rule is made absolute to the aforesaid extent.
Direct service permitted.
Sd/-
(M. R. MENGDEY,J) GIRISH Page 8 of 8 Downloaded on : Sat Oct 07 20:44:33 IST 2023