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Gujarat High Court · body

2017 DIGILAW 1097 (GUJ)

Hareshbhai Jivrajbhai Kheni v. State of Gujarat

2017-06-23

S.G.SHAH

body2017
JUDGMENT : 1. Heard learned advocate Mr. Shivgar P. Gosai for the applicant, learned advocate Mr. Ketan A. Dave for the respondents no. 2 and 4 and learned APP Mr. Manan Mehta for the respondent State. 2. Perused the record. The petitioner herein is the original complainant who has filed complaint before the Judicial Magistrate First Class in Bhavnagar District under sections 405, 406, 420, 463, 467, 465, 468, 470, 120 (B), 114 and 34 of the Indian Penal Code, 1860. Such complaint is against present respondents no. 2 to 4 amongst which respondent no. 3, though duly served, has chosen not to appear before this Court. The allegation in the complaint is to the effect that though petitioner was minor at the relevant time on 29.05.1993, a registered sale-deed has been executed as if he was major with his signature and thereby, such sale deed has been forged and fabricated in favour of the respondent no.3 and in turn the property has been purchased by the respondents no.2 and 4. Therefore, petitioner has filed a complaint attaching as many as eight documents with the complaint which includes several revenue entries, one sale deed dated 29.05.1993 alleged to be signed by the petitioner with copy of power of attorney, affidavit so also his date of birth certificate. Therefore, there was prima facie evidence available before the Court of Judicial Magistrate First Class that when date of birth of the petitioner is 21.03.1977 a sale deed in the name of the petitioner cannot be registered on 29.05.1993 as he was minor on the relevant date. Such sale deed is to be executed by the guardian of the minor with prior permission of the Court as required under the law. Thus, there is prima facie case of committing forgery and cheating. However, unfortunately, the Magistrate has forwarded the complaint for investigation to the Police Inspector, Gariyadhar under section 202 Code of Criminal Procedure, 1973. Unfortunately, the Assistant Sub Inspector namely A.T. Sangath of Gariyadhar Police Station has by his letter dated 25.09.2011 to the Court of Judicial Magistrate First Class, Gariyadhar conveyed the Court that no case is made out and that petitioner is submitting mistaken facts. Unfortunately, the Assistant Sub Inspector namely A.T. Sangath of Gariyadhar Police Station has by his letter dated 25.09.2011 to the Court of Judicial Magistrate First Class, Gariyadhar conveyed the Court that no case is made out and that petitioner is submitting mistaken facts. If one peruses such report, copy of which is produced at Annexure C, it becomes clear that Investigating Officer has relied upon the revenue entry based upon such forged sale deed for coming to the conclusion that when revenue entry is approved by the concerned officer, the sale deed is proper. Such report is endorsed by the Police Sub Inspector also. Therefore, it becomes clear that investigation agency has failed to realize that there cannot be a registered sale deed executed by a minor and therefore, when minor has complained about such forged documents, they have to scrutinize that who has signed in place of minor and that whether Registrar has verified this fact or not and that who has identified the minor as a major. Instead of investigating on such line, the Investigating Officer has relied upon the revenue entry. It is quite clear that at the time of entering mutation in revenue entry, the Revenue Officer has no occasion to verify the age of the executor of the sale deed and therefore, he simply relied upon the registered sale deed. However, if registered sale deed seems to be forged document, then it is the duty of the investigating agency to find out that who has committed such forgery instead of merely relying upon revenue entry. Similarly, because petitioner has challenged such registered sale deed by filling a Civil Suit so as to confirm his right over the property, it cannot be said that because of pendency of such civil litigation, criminal complaint cannot be proceeded further. It is undisputed fact that though it is general proposition of law that right of the property can be determined by the Civil Court and not by Criminal Court, it is also well settled legal proposition that for confirming the right over the property if any document is forged, then criminal proceedings for such forgery cannot be stopped only because of existence of such forged document or any mutation or other transaction which had taken place because of such forgery and with the help of the forged document. Therefore, the averments in the report dated 25.09.2011 by the Investigating Agency that since civil suit is pending or something is observed in some civil dispute, now in view of such observation in civil matter, there is no evidence to proceed further is not proper. 3. Therefore, prima facie investigating agency has absolutely failed to consider and realize basic fact that a sale deed cannot be executed in the name of minor and it cannot be registered as such and thereby if any sale deed is alleged to be executed and registered as if it is executed by minor then it is very much necessary for the investigating agency to verify all such details by proper investigation. To that extent the report dated 25.09.2011 by the investigating agency needs to be quashed and set aside with the direction to the investigating agency to proceed further to investigate and to find out that who has committed such forgery and to initiate appropriate criminal proceedings against the culprit. 4. Therefore, order dated 04.02.2012 of the Judicial Magistrate First Class, Gariyadhar in accepting such report dated 25.09.2011 is also not in accordance with law and needs to be quashed. If we peruse such order below Exh.1 in Police Enquiry Case No.6 of 12, it becomes clear that JMFC, Ghariyadhar has acted as if he is exercising civil jurisdiction and not criminal jurisdiction while deciding such issue, when it is stated that complaint has not been filed immediately after occurrence of the incident of alleged forgery as well as cheating and explanation for the delay is not satisfactory. The JMFC has failed to realize that when document was prima facie executed when petitioner was minor, it is obvious that he has no chance to file a complaint immediately after such execution of forged document because he was minor at the relevant time. Similarly, when prescribed punishment for some of the offences under which complaint is preferred is more than seven years; the question of limitation does not arise at all and therefore, there is no reason to call for an explanation for delay or to say that complainant has not submitted sufficient ground for delay. Similarly, there is no substance in the determination on the basis that why complaint is not filed before the police station. Similarly, there is no substance in the determination on the basis that why complaint is not filed before the police station. It is clear and obvious that police is generally refusing to lodge the complaint more particularly of such type and therefore, there is provision in Criminal Procedure Code to lodge the complaint directly before the Magistrate. Therefore, it is not appropriate for a judicial officer to question that why complaint is preferred before him rather than being filed before the Police. It is surprising to note that when matter was referred for investigation to police, the Magistrate was expecting some evidence when it is stated that no any literate witness has been examined by the petitioner. Similarly, Magistrate has failed to realize that initiation of civil proceedings based upon same facts and details would not fetch away the jurisdiction of the criminal court to punish the culprit, if offence is proved. Therefore, such order dated 04.02.2012 of the JMFC, Gariyadhar needs to be quashed and set aside. 5. Similarly, when such order of JMFC has been challenged by the petitioner before the Sessions Judge, Bhavnagar in Criminal Revision Application No.25 of 2012, unfortunately the Sessions Judge has also failed to appreciate factual details which were disclosed and discussed herein above which referred to the age of the petitioner at the relevant time and clear cut prima facie evidence confirming that document in question which was executed on 29.05.1993 cannot be registered as such in the name of the petitioner with his signature because petitioner was minor on that day. As already said herein above petitioner has produced date of birth certificate showing his date of birth as 21.03.1977 and therefore, he has not completed 18 years on 29.05.1993. 6. In view of such prima facie evidence available on record, it is unfortunate that both the Courts below have dismissed the complaint of the petitioner without proper investigation and without considering it in proper perspective so as to see that real culprit can be punished. Perusal of the judgment by the Sessions Court makes it clear that even Sessions Court has not bothered to appreciate the basic facts of the complaint, it is unfortunate that Sessions Court has observed that because complainant is carrying on business at Surat, he should be treated as literate person. Perusal of the judgment by the Sessions Court makes it clear that even Sessions Court has not bothered to appreciate the basic facts of the complaint, it is unfortunate that Sessions Court has observed that because complainant is carrying on business at Surat, he should be treated as literate person. The Sessions Court has also failed to realize that even if petitioner has executed power of attorney for other property in the year 2004, only because disputed property is not disclosed in power of attorney, it cannot be presumed that thereby petitioner must have got the sale deed executed in the year 1993 through the power of attorney commenting that otherwise he must have given power with reference to such property also. The Sessions Court has failed to consider that in the year 1993, petitioner was minor and therefore, when litigation is going on with regard to the disputed property, if he has not included details of those property in his power of attorney executed in the year 2004, it cannot be said that he has either let gone the irregularities in sale deed in the year 1993 or that no offence has been committed as complained by the petitioner. 7. Whereas learned advocate Mr. K.L. Dave for the respondents no. 2 and 4 has submitted that they have no concern whatsoever with the sale deed executed in the year 1993 and that they have purchased the property from the power of attorney holders and when there is no dispute regarding power of attorney, there is no reason to proceed further in such complaint. I do find any substance in such submission for the simple reason that if at all respondents no.2 and 4 are innocent and not involved in the alleged offence, then they would not have to worry about anything except to be careful that ultimately if sale deed in the year 1993 is declared illegal then subsequent purchaser after such sale deed would not get better right and probably for the purpose petitioner might have joined them in the complaint because today they are holding such property. Learned advocate Mr. Dave has also relied upon some deposition recorded in civil dispute between the parties. It is submitted that the petitioner has lost such civil battle to confirm his right of ownership of such property. Learned advocate Mr. Dave has also relied upon some deposition recorded in civil dispute between the parties. It is submitted that the petitioner has lost such civil battle to confirm his right of ownership of such property. However, it is undisputed fact that so far as property which is transacted by sale deed dated 29.05.1993 is concerned the Suit is still pending. Therefore, when all other documents which were never part of the proceedings either before the JMFC or before the investigating agency or before the Sessions Court, they cannot be relied at this stage so as to hold that respondents no.2 and 4 are innocent. In any case, if respondents no.2 and 4 are not involved in any manner whatsoever in the alleged illegal activity, they need not have to bother for further proceedings and investigation of the complaint. 8. Otherwise, as discussed herein above prima facie investigating agency has failed to realize that there is prima facie evidence regarding commission of offence as alleged by the petitioner and therefore, report dated 25.09.2011 cannot sustain. Once that report does not sustain, then order dated 04.02.2012 by the JMFC and judgment dated 31.07.2012 in Criminal Revision Application No.25 of 2011 against such order of the Judicial Magistrate First Class, Gariyadhar also cannot sustain. In view of above facts and circumstances, all above orders are hereby quashed and set aside. The matter is remanded back to the investigating agency for investigating and conducting fresh investigation, so as to find out real culprit in view of above observations. Investigating Officer is directed to complete the investigation within 60 days and to file a report/charge-sheet before the JMFC, Gariyadhar without fail. Rule is made absolute to the aforesaid extent. Rule made absolute.