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5.3 Advocate Mr. Raju submitted that perusal of ULC records of the land dated 22.02.1990 clearly falsify the bogus case of the applicant and co-accused, as the records do not reflect name of the applicant's father as a tenant / farmer in the said land. He submits that the land was clearly shown to have been registered in the name of Mr. Homi Jahangir Vesuna's father i.e. Mr. Jahangirji K.Vesuna.

5.4 Advocate Mr. Raju stated that forged banakhat is not even signed by the alleged purchaser Darabshah @ Dali Patel and the said banakhat was conspired to be concocted after the death of Darabshah @ Dali Patel and is sought to be misused by the applicant and other co- accused being the heirs of Darabshah @ Dali Patel. He submits that the forged banakhat is further evidently forged and fabricated, as the address of Mr. Homi R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 Jahangirji Vesuna is mentioned as "Mumbai" which is shocking as the name of the city "Bombay" was changed to "Mumbai" only in 1995, and it is inconceivable that a genuine documents executed in the 1986 would provide the address of executants as "Mumbai", a city which never existed in 1986, which shows that the forged banakhat was indeed prepared after 1999, in which year the father of the applicant Darabshah @ Dali Patel passed away and was created backdated in order to usurp the land of the complainant and his family members. He submits that backdating a document also amounts to forgery of a document, even if, signatures on the document are genuine, as the definition of forgery would bear out and even otherwise, the forged banakhat is evidently and clearly forged and fictitious. 5.5 Mr. Raju further submitted that it is the case of the applicant and other co-accused that the father of the applicant had paid the amount of Rs.16,000/- to Mr. Homi Jahangirji Vesuna, however, they neither placed any R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 document on record to substantiate any receipt of any cash amount, nor there is any clear submission as to why the father of the applicant, despite making complete payment and accepting possession as per the recitals of the forged banakhat, never filed any suit for specific performance within 3 years and/or during his lifetime and why the applicant and co-accused preferred a civil suit for specific performance after 16 years from the alleged date of execution of the forged banakhat.

5.14 Advocate Mr. Raju therefore submitted that the pendency of a civil suit cannot be a ground for setting R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 aside criminal proceedings, and the two proceedings are separate and distinct, and the pendency of one cannot influence or determine the outcome of the other. 5.15 Relying upon section 53A of the Transfer of Property Act, 1882 (for short 'TOPA"), Advocate Mr. Raju submitted that Section 53A of TOPA cannot be applied in the present case of malafide, bogus and forged banakhat which has initiated the criminal proceedings. He submitted that once criminal justice machinery is set in motion, Section 53A of TOPA becomes irrelevant and is thus not applicable in the present case. Furthermore, Section 53A of TOPA is a shield and not a sword and that Section 53A of TOPA cannot be applied in the present case where the criminal allegation is that the applicants have committed the offence of claiming the possession over the land in question through creating a backdated malafide, fraudulent and concocted document. 5.16 Advocate Mr. Raju stated that applicants herein R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 have relied on the case of the Kishan Singh vs Gurpal Singh (2010) 8 SCC 775, on the ground that there was a delay in filing of FIR. He submits that this judgment is not applicable to the present case, as it pertains to a delay of registration of FIR after losing in a civil suit, and in the present case, the suit was dismissed for default in 2011 by the learned Civil Court, and on 28.01.2012, for the first time, the complainant made a representation and application to the police authority against the applicant and other accused persons. He submitted that when the said representation and application was made before the police authority, no civil suit was in existence and that therefore, the complainant cannot be said to have lost in the civil suit, and thereafter filed an application before the Police authority; however multiple representations were made to the concerned police authorities regarding various issues pertaining to the land in question since 2012, and the purported delay in registration of the FIR was on part of the police authorities, onus of which cannot be attributed solely to the complainant. Mr. Raju R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 submits that on this question of law, this High Court has held that the inaction of the authorities cannot be deemed as a delay on the part of the complainant at Paragraph-37 in case of Labhubhai Ranchhodbhai Patel & ors vs State of Gujarat in CR.MA No.16076 of 2014, and at Paragraph-21 in the case of Mafat Mohanbhai Parmar & ors vs State of Gujarat & ors. in CR.MA No. 18170 of 2012.

5.26 Advocate Mr. Raju submitted that, the FSL report along with the opinion of Handwriting Expert is in favour of the complainant and upon perusal of the same, it becomes crystal clear that the banakhat is forged, concocted, bogus and backdated and therefore this Court is not required to decide or adjudicate the disputed facts in the present case, while exercising the discretion under R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 the provisions of Article 226 of Constitution of India, 1950 read with Section 482 of CrPC, as the same is subject matter to be dealt with by the trial Court. Advocate Mr. Raju further submitted that the allegations made in the FIR are serious and requires a thorough investigation, and therefore, the petitioners herein cannot be allowed to escape the consequences of their alleged actions by quashing the FIR on flimsy grounds. Further, submitted that the evidences produced on record as well as provided to the investigating agency by the complainant, including the private handwriting expert opinion, is sufficient to establish a prima facie case against the applicants herein. Despite the FSL Report being conclusive in nature, it was the contention of the applicant that the FSL report is inconclusive cannot be the sole ground for quashing the FIR, it was argued by the applicants that second report of FSL was awaited which has been submitted before this Court in the sealed cover. Mr. Raju stated that, without prejudice to the rights and contentions of complainant with respect to the R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 second FSL report, the fact remains that when there are serious questions and disputes of facts, the same are not required to be dealt with in quashing proceedings and therefore, the investigation of the FIR and further events in connection with the said acts and omissions must be permitted to continue rather than quashing the FIR at this early stage. Advocate Mr. Raju submitted that in the absence of any exceptional circumstances in the present case, the investigation should be allowed to proceed, and the accused persons can raise all relevant defenses and objections during the course of the trial. 5.27 Mr. Raju submitted that in view of the established law of the land, as held and laid down by the Hon'ble Apex Court, the High Court has very limited jurisdiction while deciding or exercising its powers u/s 482 of Cr.P.C., and the Hon'ble Court is not required to conduct a mini-trial by asking the prosecution to prove all the charges against the accused persons, as it is prima facie established in the present case and therefore, the R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 complainant prays that this Court may not exercise its jurisdiction in favour of the applicants. 5.28 Mr. Raju submitted that S.Cr.A. No.6429 of 2017 has been preferred by the petitioners, seeking directions against the investigating officer to consider their representations before taking any further steps in connection with the application dated 03.04.2017 made by the complainant. Mr. Raju further submitted that the applicant in S.Cr.A. No.6429 of 2017 has prayed for issuance of writ of mandamus commanding Police Inspector, Umra Police Station, Surat to consider the representation dated 08.08.2017 made by the applicant in connection with an application dated 03.04.2017 filed by the complainant before taking any further action. Mr. Raju submitted that the said petition is itself infructuous, and any prayer made thereof cannot be allowed. 5.29 Advocate Mr. Raju submitted that in connection with the application dated 03.04.2017, FIR bearing CR R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 No.I-215 of 2017, dated 22.08.2017 has been registered by Umra Police Station, Surat against the applicant and other accused persons. He submits that the present petition has been filed by the applicant on 23.08.2017, and when the present petition was filed, the concerned Police Authority had already taken action on the application dated 03.04.2017 by registering the FIR on 22.08.2017. Therefore, the prayer sought for has become infructuous and therefore, the petition is required to be dismissed as infructuous. Mr. Raju submitted that the applicant has also prayed to issue a writ of mandamus commanding Respondent No.3 to adhere to a circular issued by Commissioner of Police before registration of FIR pursuant to application dated 03.04.2017. He submits that this prayer also has become infructuous as the Respondent No.3 has already registered the FIR pursuant to application dated 03.04.2017, and the applicants have referred to a circular of Commissioner of Police that requires FSL report for registration of FIR. He submits that without prejudice to the case of the complainant, the R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 FSL report on the forged banakhat has come positive, i.e., the signatures have been confirmed to be forged and therefore also, the FIR is maintainable and is not required to be quashed. Advocate Mr. Raju submits that pursuant to the registration of FIR, the applicants have already preferred application for quashment of the same, and thus, prayer submitted in S.Cr.A No. 6429 of 2017 has become infructuous and is required to be dismissed. Advocate Mr. Raju submitted that in prayer-C, the applicant has prayed to secure the forged banakhat and send the same for FSL. However, applicant has made this prayer malafidely as the forged banakhat was always in the custody of the applicant and the same was produced before the Investigating Agency by the brother of the applicant itself. Mr. Raju further submitted that, the FSL report on the very same forged banakhat has come positive, meaning the signature therein was forged. 5.30 In Regard to the petition seeking quashment of order dated 08.01.2018 passed by Ld. 2 nd Addl. Sessions R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 Judge, Surat in Cr.M.A. No. 3360 of 2015 below Exh.-34 u/s 145 Cr.P.C. proceedings, Mr. Raju submitted that in SCRA 679 of 2018, the applicants have sought quashment of the order dated 08.01.2018 passed below Exh.-34 by the learned Additional Sessions Judge, Surat whereby the learned Judge was pleased to direct the applicants to hand over the possession of the subject property to the complainant. Advocate Mr. Raju stated that, upon an application dated 28.01.2012 made by complainant to P,I,, Umra Police Station, the P,I, submitted a report dated 09.02.2012 to the learned Executive Magistrate and proceedings under section 145 of CrPC came to be initiated. Advocate Mr. Raju relied on the judgment of Hon'ble Apex Court in Jagdish Prasad v. Angoori Devi, (1984) 2 SCC 590, to submit that a writ of certiorari, as prayed by the applicants in the present case cannot be allowed to correct an error of fact, which even otherwise, is not the case herein, as the complainant is in rightful possession of the said land as held by the learned 2 nd Addl. Sessions Judge, Surat and thus, prayed to dismiss R/CR.MA/28312/2017 JUDGMENT DATED: 27/04/2023 the petition. Mr. Raju submitted that the suit filed by the applicants came to be dismissed for default on 04.07.2011 and thereafter the same was restored on 12.09.2014. He submits that the proceedings under section 145 of Cr,P,C, were initiated in the year 2012, when the suit was already dismissed for default, and, therefore it cannot be said that as the suit is pending, the proceeding under section 145 Cr.P.C. with a conclusive order passed under Section 145 Cr.P.C. by the magistrate of competent jurisdiction should be set aside merely because the unsuccessful party has approached the Civil Court. He submits that an order made u/s 145 Cr.P.C. deals only with the factum of possession of the party as on a particular day, as the same has been held by the Hon'ble Apex Court Jhummamal alias Devandas v. State of Madhya Pradesh and ors., (1988) 4 SCC