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Gujarat High Court · body

2014 DIGILAW 979 (GUJ)

Arpanbhai Balubhai Patel v. State of Gujarat

2014-09-02

R.D.KOTHARI

body2014
ORDER : The petitioner challenges FIR lodged at Gandhinagar Police Station vide I-C.R.No.17 of 2010 for offence under Sections 406, 420, 467, 468, 471 r/s Section 120-B of IPC. 2. This Court had issued notice by order dated 7.8.2012. 3. With consent, the matter is taken up for final hearing. 4. Relevant facts as emerges from the complaint are, thus; The complainant claims to possess the ancestral property situated at Naroda. It appears that complainant has lands of more than dozen survey numbers at Naroda. In the present case, we are concerned with Survey No.925/1 admeasuring 0-30-35 sq. mtrs. (?) Area and measurement of the land is important and material as it would appear in a brief narration hereinafter. Complainant has agreed to sell a piece of the land. For this purpose, a document prior to execution of agreement to sell, referred to as ' kachi chitthi- , was prepared at the residence of the complainant. It was on 16.6.2009. Transaction was in favour of A1. Complainant has received Rs.30 lakhs pursuant to that writing. Kachi chitthi was prepared on blank paper. It is the say of the complainant that kachi chitthi was prepared by the present petitioner. The revenue stamps ' as many as 8 revenue stamps ' were also affixed on the kachi chitthi. Complainant has placed signature on the revenue stamp and has received Rs.30 lakhs, as observed above. Thereafter, just after 2 days i.e. on 18.6.2009 and 19.6.2009, Mr. Hasmukhbhai Patel (A1) had issued public notice in the newspaper wherein reference was made to all land owned by the complainant ' instead of the land for which kachi chitthi was prepared. Complainant has come across this advertisement. He had said to have asked A1 to publish again an advertisement in respect of Survey No. 925/1 only and at the same time, he had also asked A1 to treat as cancelled the transaction entered into between them. It is the say of the complainant in the complaint that Mr. Purshottambhai Nanjibhai (A5) and Mr. Mitul Hasmukhbhai (A2) and the present petitioner had met the complainant and complainant had returned Rs.20 lacs to them. It is also the say of complainant that he had sent by speed post cheque of Rs. 10 lakhs in favour of A1. The complainant says that at that time also, he told them about cancellation of the transaction. The main story now comes. It is also the say of complainant that he had sent by speed post cheque of Rs. 10 lakhs in favour of A1. The complainant says that at that time also, he told them about cancellation of the transaction. The main story now comes. A1 said to have approached one Ms. Geetaben Patel, Stamp Vendor and Notary. It appears that A1 has broadly appraised Ms. Geetaben about the transaction that had (or that had not) taken place between the complainant and A1. Ms. Geetaben was requested to prepare Memorandum of Understanding (MoU) in respect of the transaction between the complainant and A1. Accordingly, MoU was prepared on Rs.100 non-judicial stamp paper. It is the say of the complainant that on the said MoU, the revenue stamps which were affixed on kacha chitthi ' that bears signature of the complainant ' were affixed ' by removing the same from kacha chitthi. Complainant says that he has neither signed any MoU nor has signed any register kept by the Notary. It is also alleged that in the MoU, interpolation and correction was made. Complainant alleges that MoU was prepared by committing forgery to mis-appropriate the complainant- s land worth crores of rupees. After preparing MoU and relying upon it, A1 had instituted the suit for specific performance i.e. Special Civil Suit No. 326 of 2009 the said suit was filed before the Ahmedabad Rural Court. It is also the say of complainant that in the said suit, ex parte interim orders were obtained by the A1. Accordingly, complainant has lodged the complaint for offences of forgery, cheating and criminal conspiracy. 5. Heard learned advocate Mr. Nachiket A. Dave for the petitioner, learned APP Mr. K. P. Raval for the respondent No.1 ' State and learned advocate Mr. J. V. Vaghela for the respondent No. 2. 6. Learned advocate Mr. Dave for the petitioner, at the time of hearing, has submitted that bare reading of complaint itself would show that there is no case against the present petitioner. Besides that, it was pointed out that complaint is filed after gross delay of over one and half year. Further, it was pointed out that in civil suit instituted by the A1 against the complainant, present petitioner is not a party. Further, in the order below Exh.5 of the trial Court, there are observations favourable to the present petitioner. Besides that, it was pointed out that complaint is filed after gross delay of over one and half year. Further, it was pointed out that in civil suit instituted by the A1 against the complainant, present petitioner is not a party. Further, in the order below Exh.5 of the trial Court, there are observations favourable to the present petitioner. It was submitted that case of present petitioner is clearly distinguishable from the case against the A1 and other accused. It was submitted that present petitioner is falsely implicated in the present case. 7. Learned advocate Mr. Vaghela for the respondent No.2 ' original complainant has submitted that charge-sheet is already filed by the police and therefore, there is a prima facie case against all the accused including the present petitioner. Replying the submission of delayed complaint, it was pointed out that incident is of 16.6.2009 and thereafter, prior to the lodging of the present complaint, on 3.11.2009 complainant has addressed a letter to the Additional Police Commissioner. Therefore, complainant has tried to set in motion the criminal action by complaining about cheating and breach of trust. Learned advocate has also pointed out that in the facts of the present case, powers under Section 482 ought not to be exercised by this Court in favour of present petitioner and petitioner has remedy to move the trial Court for discharge. It was also submitted that in view of existence of that remedy, this Court should not interfere in exercise of powers under Section 482 of the Cr.P.C. It was also submitted that present petitioner is not a stranger or a third party and along with other accused, has formed a partnership to grab the land. Learned advocate Mr. Vaghela submitted that present application, therefore, should be dismissed. 8. Learned APP Mr. Raval is heard for the State. 9. In this proceeding for considering the case of petitioner, we may go with the assertion made by the complainant in the complaint. The sole allegation made by the complainant is that present petitioner has written (drafted) the kacha chitthi. It appears that kacha chitthi is a hand written document. Further, it is the say of the complainant that pursuant to writing of kacha chitthi, he had received Rs. 30 lakhs. Complainant says that he had received Rs. 20 lakhs in cash, Rs.1 lakh and Rs. 9 lakhs by cheques. It appears that kacha chitthi is a hand written document. Further, it is the say of the complainant that pursuant to writing of kacha chitthi, he had received Rs. 30 lakhs. Complainant says that he had received Rs. 20 lakhs in cash, Rs.1 lakh and Rs. 9 lakhs by cheques. Thereafter, just within 2 days, a public notice appeared in a newspaper. That public notice disturbed the complainant as the same allegedly referring the other lands of the complainant also. Complainant contacted A1 and has asked A1 to issue another notice clarifying ' as observed above - and has also at the same time cancelled the transaction entered into with A1. Complainant in the said complaint says that cash amount and cheques received by him was returned to A1. 10. In the above way, transaction entered into through kacha chitthi came to an end ' in a sense ' said transaction did not materialize. 11. Careful reading of the complaint would show that the grievance of the complainant is about alleged committing of forgery by preparing MoU by A1. In this ' second- incident, present petitioner is not in picture. There is no allegation against the present petitioner in this ' second- incident. 12. In order to appreciate the role of the present petitioner and the case against him, learned APP was requested to call for investigation papers. It appears from the investigation papers that I.O. has recorded the statement of stamp vendor-cum-notary ' Ms.Geetaben Patel. It is fairly a detailed statement. It is lengthy. How MoU came to be prepared and executed is stated by Ms.Geetaben. In that detailed statement, there is no reference to present petitioner. 13. In M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & others, (AIR 1998 SC 128), the Supreme Court has held in Para.28, as under : ' 28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.' 13.1 In the facts of the present case, it can be said that nature of allegation made in the complaint does not call for continuation of proceedings against the petitioner. 14. General submissions made by learned advocate for the complainant that present petitioner is a partner of A1 along with other accused and therefore, case against him should be believed, is not possible to accept. A line is possible to draw clearly between transaction intended to enter into via kacha chitthi and subsequent ' transaction- . The transaction intended to enter had failed as same was cancelled by the complainant and the ' subsequent transaction- as alleged by the complainant has never taken place, as the same is only a paper work by some one. It appears that the later transaction is basis of litigation between the parties. If there is no allegation and if no role played by the present petitioner in the subsequent transaction on which the complaint is based, initiation and continuation of proceeding against the present petitioner is abuse of process of law. In the case like present one to direct the petitioner to apply for discharge and reject the present petition only on that ground, would not be just, proper and legal. Interest of justice requires interference. 15. I may clarify my opinion. In the case like present one to direct the petitioner to apply for discharge and reject the present petition only on that ground, would not be just, proper and legal. Interest of justice requires interference. 15. I may clarify my opinion. At this initial stage of proceedings, it appears that petitioner is an important prosecution witness. To arraign him as an accused is erroneous. This and other conclusions recorded hereinabove are tentative. If during the trial, material on record reveals that net of the criminal wrong is possible to widen beyond the second incident then, without being influenced by the conclusion and discussion made herein, the said court may proceed with the case in accordance with law. 16. In view of above discussion, present petition deserves to be allowed and the same is allowed. FIR being I-C.R.No.17 of 2010 registered with Gandhinagar Police Station is hereby quashed and set aside so far as present petitioner is concerned. Rule is made absolute. 17. At the request of learned advocate for the complainant, it is clarified that complainant may proceed in accordance with law so far as other accused are concerned. 18. Direct service is permitted. Petition allowed.