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[Cites 10, Cited by 0]

Gujarat High Court

Dilipbhai Kanjibhai Patel vs State Of Gujarat on 17 March, 2023

Author: Samir J. Dave

Bench: Samir J. Dave

                                                                                NEUTRAL CITATION




     R/SCR.A/3429/2023                            ORDER DATED: 17/03/2023

                                                                                 undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 3429 of 2023

==========================================================
                         DILIPBHAI KANJIBHAI PATEL
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR ND NANAVATY, SR. ADVOCATE FOR MR YASH N NANAVATY(5626)
for the Applicant(s) No. 1,2
MR MOUSAM R YAGNIK, for the Respondent(s) No. 2
MS MH BHATT, APP for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE

                              Date : 17/03/2023

                               ORAL ORDER

1. Mr. Mousam R. Yagnik, learned advocate states that he has received instructions to appear for and on behalf of the respondent no.2 and sought permission to appear on behalf of the respondent no.2. Permission; as sought for; stands granted. He shall file his Vakalatnama before the Registry. Registry shall accept the same.

2. Rule returnable forthwith. Learned APP waives service of notice of rule for and on behalf of the respondent no.1-State and learned advocate Mr. Mousam R. Yagnik waives service of notice of rule for and on behalf of the respondent no.2.

3. Considering the issue involved in the present application and with consent of the learned advocates appearing for the Page 1 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined respective parties, this matter is taken up for final disposal forthwith.

4. By way of present application, applicants have requested to quash and set aside the FIR being CR No. 11213030230074 of 2023 registered with Lodhika Police Station, District Rajkot Rural for the offence punishable under Sections 406, 420, 467, 468, 471 and 114 of the Indian Penal Code.

5. Brief facts of the present case are as under:

5.1 That, the first informant being Palabhai Meghabhai Haran had an occasion to sell his land and, in that transaction, had established contact with accused no. 3 namely khishorbhai Chaganbhai Adipara. On showing the land to the said accused he was willing to purchase and the amount thereof was decided to the tune of Rs. 6,00,00,000/-and on account of approval by the complainant, he was taken to the office of accused no. 1 and 2 and he was accompanied by his two sons and they jointly decided as to how the sale deed was to be executed. That, the amount decided for the sale of the land being Rs. 6,00,00,000/- but the accused persons had consented for the execution of sale deed on a meagre amount of Rs. 38,63,000/-and stated that the remaining amount would be paid thereafter.
5.2 That, on 02/06/2012 the sale deed was executed in the Page 2 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined name of Chagganbhai Damjibhai Busa and Dr. Dilipbhai Kanjibhai Patel and they had paid an amount of Rs.

1,50,00,000/-on that day and promised of paying Rs. 4,50,00,000/-within 8 to 10 days and it was agreed between the parties that on payment of the full consideration only, the possession of the land would be transferred to the accused persons. That, the accused persons being accused no. 4, accused no. 5 and accused no. 6 were instrumental in creating a forged sale deed in the name of accused persons being accused no 2 and accused no. 3. That, an amount of Rs. 1,50,00,000/-has already been paid and promissory note was issued apart from that 3 cheques were issued. That, accused no. 3 has signed as witness. That, accused persons being accused no. 1 and accused no. 3, on being asked about the remaining payment, has replied to have paid the entire amount and have subsequently sold off the land to accused no. 4 and thereafter accused no. 4 has sold off the land to accused no. 5 and accused no. 6. That, first informant has preferred several civil suits regarding the said property and on account of the remainder of payment of the amount due to be paid for the said land, this first information report has been lodged under section 406, 420, 467, 468, 471 and 114 of the Indian Penal Code. Thus, applicants have approached this court by way of Page 3 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined present application requesting to quash the impugned complaint.

5. Heard learned advocates for the respective parties.

6. It was submitted by learned advocate for the applicants that there is a delay of around 13 years in lodgment of the FIR. That, the allegations are absurd, frivolous and against the law of natural justice. That, a civil suit has been initiated at the behest of the first informant being number as Special Civil Suit No.59 of 2017 for cancellation of sale deed being register no.2789 dated.02.06.2012 which is pending before the Principle Senior Civil Judge, Gondal whereby an application for stay Ex. 5 was dismissed on 04.09.2018. That as the civil suit of cancellation of sale deed was not entertained by the Hon'ble court and since the first informant failed in obtaining stay for the transaction of the sale deed, this First Information report has been filed to pressurize the accused persons to revert back the transaction. That, FIR has been registered after a complaint was filed by the first informant in the same police station regarding the same cause of action and the complaint was not entertained stating that the dispute is civil in nature and no further investigation was necessary. That, the case on hand is an abuse of process of law and to satisfy his malafide intention of extorting money as the Page 4 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined transaction was executed 13 years ago and now there are further two transactions executed thereafter. That, the accused No. 8 is named in the FIR but not a single allegation is stated against him and also accused no. 8 is nowhere connected in the civil litigation filed in the year 2018 by the first informant nor are there any of the allegations levelled against the accused in the complaint filed by the first informant in 2018. That, present FIR is only filed as a way of pressurizing the accused persons to settle the dispute regarding the monetary transaction. That the case on hand is such that a monetary transaction being purely civil in nature and the present FIR has been filed only to give criminal color to a civil dispute and to pressurize the accused persons. That, even if the entire case of the prosecution is believed to be true, no case worth the name is made out against the Applicants. Ultimately, it was submitted by learned advocate for the applicants to allow present application by quashing and setting aside the impugned FIR.

7. Learned advocate for the original complainant- respondent no.2 has strongly objected the submissions made by learned advocate for the applicants and submitted that the land in dispute is in possession of the respondent no.2 and the remaining amount as alleged in the FIR is not paid either by the the accused no.1 or 2 or by the accused no.3. That, there are Page 5 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined numbers of antecedents against each of the accused persons. That, it is also admitted by the accused no.1 to 3 in promissory note that they will pay remaining amount to the complainant and same is signed by them. That, the accused no.3 has also admitted before the civil court on affidavit that the land was sold by the complainant to accused no.1 and 2 in Rs. 6 crores and at the time of sale deed only, Rs. 1,50,00,000/- was paid and accused nos. 1 to 2 agreed to pay remaining amount of Rs. 4,50,00,000/- which iss till not paid. That, there is prima facie case against the accused persons and their quashing petitions are required to dismissed.

8. On the other hand, while referring the report dated 17.03.2023 under the signature of Police Sub Inspector, Lodhika Police Station, Rajkot Rural, Rajkot produced in Criminal Misc. Application No. 4906 of 2023, which have been filed by co-accused of the impugned FIR, learned APP for the respondent No.1-State has supported the arguments made by learned advocate for the respondent no.2 and submitted that the allegations made in the impugned complaint are serious in nature and the investigating officer has stated in his report that the accused have tried to grab the land of the complainant and made cheating and breach of trust with the complainant and are absconded also thus, learned APP for the Page 6 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined respondent no.2 State has requested to dismiss present application.

9. Having heard learned advocate for the respective parties, it appears from the FIR that the complainant is farmer who is doing agriculture work upon the land in question and accused no.3 in the FIR (Kishorbhai Chhaganbhai Aadipara) came in contact with the complainant and seen the land in question and agreed to purchase the said land in Rs.6 crores and it was decided that sale deed to be executed in favor of accused No.1 and 2 (Chhaganbhai Damjibhai Bunsa and Dilipbhai Kanjibhai Patel) and to save stamp duty, all three accused persons have informed the complainant that they will execute sale deed of Rs.38,63,000/- and they will pay remaining amount in cash for which complainant agreed. That, on 02.06.2012 the complainant has sold his land to accused No.1 and 2 (Chhaganbhai damjibhai Bunsa and Dilipbhai Kanjibhai Patel) by way of registered sale deed and the accused persons have paid Rs.1,11,37,000/-in cash and two cheques being cheque no.000064 for Rs.19,31,500/- & cheque no.093278 for Rs.19,31,500/- (in all total Rs.1,50,00,000/-) and all three accused person i.e. accused No.1 to 3 (Chhaganbhai Damjibhai Bunsa, Dilipbhai Kanjibhai Patel and Kishorbhai Chhaganbhai Aadipara) have informed Page 7 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined the complainant that the remaining amount of Rs.4,50,00,000/- will be paid within 8 to 10 days and having faith in accused persons as agreed.

10. It further appears from the FIR that since the remaining amount was not paid as agreed by the accused persons i.e. accused No.1 to 3 (Kishorbhai Chhaganbhai Aadipara, Chhaganbhai damjibhai Bunsa and Dilipbhai Kanjibhai Patel), one promissory note signed by all three accused persons on 02.06.2012 in which all of them have agreed to pay remaining amount of Rs.4,50,00,000/- by giving three cheques of Rs.1,50,00,000/- each but same was not paid and instead of that, the accused no.1 and 2 i.e. (Chhaganbhai Damjibhai Bunsa and Dilipbhai Kanjibhai Patel) has sold the land of the complainant to accused no.4 (Kuldeepsinh Jaysinh Rathod) and subsequently, the said accused no.4 has sold the land of the complainant to accused no.5 and 6 (Hiteshbhai Lakhmanbhai Rank and Sandeep Vallabhbhai Rank) by stating in the sale deed that possession of the land is also handed over to the purchaser though the possession of the land is still with the complainant. Since, the accused no.1 to 3 have not paid the remaining amount of Rs.4,50,00,000/- as agreed in the promissory note entered between them and signed by them, the complainant has filed Special Civil Suit No.59 of 2017 before Page 8 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined the learned Civil Court, Gondal and in the said suit, court has passed order of panchnama of possession of the land and in the panch rojkam of the land in question, possession of the land is proved of the complainant and in the said suit, Accused no.3 in the FIR (Kishorbhai Chhaganbhai Aadipara) has also filed an affidavit stating that the remaining amount is not paid by the accused no.1 and 2 i.e. (Chhaganbhai damjibhai Bunsa and Dilipbhai Kanjibhai Patel) and therefore one written complaint was filed before the Lodhika Police Station on 14.05.2018 for registering FIR against the accused persons. The said written complaint was investigated and statement of complainant, statement of sale deed witness as well as all accused persons were recorded and in the said statements also accused no.3 has admitted that the land was sold by the complainant to accused No.1 & 2 in Rs. 6 crores and paid only 1,50,00,000/- and still Rs.4,50,00,000/- is outstanding.

11. It appears from the record that the investigating officer has filed report on 18.11.2018 in which the investigating officer opined that the complainant was cheated by the accused persons and prima facie offence was made out but the investigating officer has filed report stating that as per provisions of the Government resolution, since the civil proceedings are pending between the parties before the civil Page 9 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined court, FIR cannot be registered against the accused persons.

12. It further appears that though the investigating officer has opined that prima facie offence is made out but not registered the FIR against the accused persons only on the ground that there is civil suit pending between the parties, the complainant has approached the Higher officer and after intervention of higher officer, the investigation was transferred to DCB (Crime Branch) and during the said investigation statements of all witnesses were recorded and the investigating officer came to the conclusion that prima facie offence is made out and therefore again the accused person came to the contact of the complainant and started talks of settlement and orally agreed to pay remaining amount of Rs.4,50,00,000/- and under this talk of settlement, the complaint was closed.

13. It appears from the record that even after the accused persons agreed orally to pay remaining amount of Rs.4,50,00,000/- and because of the same settlement arrived between the parties, again the accused persons have cheated and not paid the said amount.

14. The law laid down by Privy Council in the case of "King Emperor v. Khwaja Nazir Ahmad" reported in AIR 1944 PC 18 , wherein the Privy Council observed that in India, as has been shown, there is a statutory right on the part of the police Page 10 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and it would, as Their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus.In the said judgment the law has been laid down in the following manner;

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare Page 11 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognized to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported.

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NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the Page 13 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023 NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined FIR"

15. It appears from the record that the impugned FIR has been lodged on 03.03.2023 and within a short span of registration of FIR, the applicants approached this court by way of quashing petition but as per view of this court, let the investigating officer to investigate thoroughly.
16. In view of the findings given by the Apex Court in case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Ors., reported in 2021 (19) SCC 401, it transpires that the power of quashing of criminal proceedings should be exercised very sparingly and with circumspection and that too in rarest of the rare cases and it was not justified for the Court in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the inherent powers do not confer any arbitrary jurisdiction on the Court to act according to its whims and fancies.
"It is well settled that at the stage when the High Court considers a petition for quashing criminal proceedings under section 482 of the Cr.P.C, the allegations in the FIR must be read as they stand and it is only if on the face of the allegations that no cognizable offence, as alleged has been made out, that the Court may be justified in exercising its jurisdiction to quash."
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NEUTRAL CITATION R/SCR.A/3429/2023 ORDER DATED: 17/03/2023 undefined

16. Thus, from the aforesaid discussion and as per the report dated 17.03.2023 under the signature of Police Sub Inspector, Lodhika Police Station, Rajkot Rural, Rajkot as has been submitted by learned APP for the respondent-State, this court is not inclined to accept the prayer of the applicants and accordingly, present application stands rejected.

No order as to costs. Rule stands discharged.

(SAMIR J. DAVE,J) K. S. DARJI Page 15 of 15 Downloaded on : Sun Sep 17 22:47:33 IST 2023