PRABHABEN SHIVAJI SARTANJIVAGHELA PUJAJI CHHAGUJI v. STATE OF GUJARAT
2009-11-18
RAVI R.TRIPATHI
body2009
DigiLaw.ai
RAVI R. TRIPATHI, J. ( 1 ) HEARD learned Advocate Mr. Japee for the petitioners. ( 2 ) THE learned Advocate for the petitioners started by saying that this matter was filed on 15. 12. 2008 and the court passed an order on 16. 12. 2008 as under:-"rule and Notice as to interim relief returnable on 28th January 2009. Ad-interim relief in terms of paragraph 14 (C ). Learned APP waives service for respondent No. 1. Direct service for respondent No. 2. " ( 3 ) THE learned Advocate for the petitioners submitted that as this matter is pending since December 2008 and there are civil proceedings pending between the parties, this matter should await the outcome of the civil proceedings and till then this matter be not heard and decided. ( 4 ) THIS submission of the learned advocate for the petitioners is improper. When the Court issued, 'rule and notice as to interim relief returnable on 28th January 2009'. the learned advocate is expected to go on with the final hearing on the returnable date. The fact of pendency of the civil proceedings was very much known to the petitioners on the day of filing of the present application and with that knowledge an order of 'rule and Notice as to interim relief returnable on 28th january 2009' was obtained. ( 5 ) THE learned Advocate for the petitioners could not convince as to why the criminal matter should await the outcome of the proceedings pending in civil Courts. ( 6 ) THE present matter is already on board for final hearing at Sr. No. 144 of the Board dated 26. 10. 2009. ( 7 ) IN fact this approach of the learned Advocate for the petitioners brings bad name to the system. After having filed the matter and after having obtained order of Rule and ad-interim relief, the non-wiltingness of the learned Advocate shows the intention of the petitioners which is conveyed through the conduct of the learned advocate for the petitioners. The fact that when on 15. 12. 2008 this matter was filed the civil proceedings were very much pending and therefore it does not He in the mouth of the learned advocate for the petitioners to say that the matter which is admitted on 16. 12.
The fact that when on 15. 12. 2008 this matter was filed the civil proceedings were very much pending and therefore it does not He in the mouth of the learned advocate for the petitioners to say that the matter which is admitted on 16. 12. 2008 and wherein Rule and notice as to interim relief is made returnable on 28th January 2009 should not be heard finally, today - 18. 11. 209, even though it is notified for final hearing in the board of 26. 10. 2009. The Court restrains itself from making any further observation about the conduct of the learned Advocate for the petitioners. ( 8 ) COMING to the merits of the matter, present Criminal Misc. Application is filed by as many as seven petitioners of whom 1 to 5 are the land owners and 6 and 7 are the persons to whom they have sold the land. Respondent No. 2 is the complainant whose case is that petitioner Nos. l to 5 first entered into an agreement to sell with him and he was made to pay the conversion charges (new tenure to old tenure and from agriculture to non-agriculture ). ( 9 ) THE learned Advocate for the petitioners submitted that: (i) The dispute involved in the matter is of civil nature. This submission of the learned advocate for the petitioners is without any merit. In the present when petitioner Nos. l to 5 had executed an agreement to sell in favour of the complainant and he was made to pay the amount of conversion charges, it cannot be said that the dispute involved is exclusively of civil nature and this court should quash the complaint under section 482 of the Code of Criminal Procedure. (it) The learned Advocate for the petitioners next submitted that the agreement to sell which is referred to, a copy of which is produced at page 42, annexure C, is shown to have been executed at village Bhat, Taluka gandhinagar whereas in the complaint, a copy of which is produced at page no. 86, the agreement to sell. is said to have been executed at the place of one chitrak Satishkumar Shah at his residence at 18, Pushp Dhanva Society, vastrapur, Ahmedabad. ( 10 ) IN support of this submission the learned Advocate for the petitioners relied upon few selected words/phrases from the complaint.
86, the agreement to sell. is said to have been executed at the place of one chitrak Satishkumar Shah at his residence at 18, Pushp Dhanva Society, vastrapur, Ahmedabad. ( 10 ) IN support of this submission the learned Advocate for the petitioners relied upon few selected words/phrases from the complaint. It is mentioned in paragraph 2 of the complaint that "the accused Nos. l to 5 and one Vaghela jituji Pruthvisinh had come to the place of my friend Chitrik Satishkumar Shah, resident of 18, Pushpdhanva Society, vastrapur, Ahmedabad. In the meeting at his residence with regard to the sale of land the complainant decided to purchase the land at the rate of Rs. 150 per sq. mt. for total consideration of rs. 4,85,550 and that accused No. I was paid an amount of Rs. 2 lakhs as the 'advance money' by a cheque no. 771026 of Dena bank". It is further stated that "at that time accused No. 1 had executed an 'agreement to sell' -'affidavit' in favour of the complainant". ( 11 ) THE phrase "at that time" is referred to and is interpreted by the learned Advocate for the petitioners in reference to the place of execution of the agreement to sell, ft is not possible to agree with the submission of the learned Advocate for the petitioners because the phrase "at that time" refers to the sequence of event and that sequence of events is to the effect that "when the price was determined the amount by way of 'advance money' was paid and an agreement to sell was executed". It does not refer to the place at which the document was executed. ( 12 ) BE that as it may. It is too fine an argument, it cannot be accepted by this court while exercising jurisdiction under Section 482 of Cr. PC. (iii) The learned Advocate for the petitioners next submitted that the order passed by the learned Chief Judicial magistrate. Ahmedabad below the complaint for investigation under section 156 (3) of Cr. PC. is cryptic. This submission is also without any merit and does not warrant acceptance. Learned Magistrates are not expected to write lengthy orders - setting out all the facts, reasons and thereafter, passing an order.
Ahmedabad below the complaint for investigation under section 156 (3) of Cr. PC. is cryptic. This submission is also without any merit and does not warrant acceptance. Learned Magistrates are not expected to write lengthy orders - setting out all the facts, reasons and thereafter, passing an order. ( 13 ) THE learned Advocate for the petitioners relied upon two decisions of the Honourable the Apex Court in support of his submissions: (i) Devendra and others v. State of uttar Pradesh and another (2009) 7 SCC 495 : and (ii) Mohammed Ibrahim and others v. State of Bihar and another (2009) 8 SCC 751 . The learned Advocate relied upon the contents of Head Note (A) of the first decision wheres Head Note (C) of the second decision. He submitted that when the nature of the dispute involved is of civil nature, the High Court is required to exercise jurisdiction conferred by Section 482 of the Code cr. PC. and the FIR is required to be quashed and set aside. Learned Advocate for the petitioners emphasized the word 'purely''. The Honourable the Apex court has observed that when the dispute is 'purely' of civil nature, the jurisdiction under Section 482 of the cr. PC. is required to be exercised. ( 14 ) IN Head Note (C) of the second decision, relied upon by the learned advocate for the petitioners, the honourable the Apex Court considered the definition of the term "false documents" defined in Section 464 and also considered as to when an offence under Sections 467 and 47 I can be said to have been made out. ( 15 ) IT is too premature a stage without there being any investigation into the matter. The complaint was filed on 24. 6. 2008, the order was passed on 13. 6. 2008 and the same is challenged by filing present Criminal Misc. Application on 15,. 12. 2008. There was no sufficient time for investigation. The court finds no substance in this petition and hence it is dismissed. Rule is discharged. Ad-interim relief granted earlier is vacated. ( 16 ) AT this juncture learned advocate for the petitioners requested that the observations made by this court herein above may prejudicially affect the petitioners. On his request, it is clarified that the observations made herein above are only for the purpose of disposal of this Criminal Misc. Application. Petition rejected.