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Gujarat High Court · body

2017 DIGILAW 1267 (GUJ)

PATEL DEVABHAI RAMABHAI v. STATE OF GUJARAT

2017-07-10

B.N.KARIA

body2017
JUDGMENT : 1. The present application has been filed by the applicants/original accused under Section 482 of the Code of Criminal Procedure (for brevity “CrPC) praying to quash and set aside the complaint, being Criminal Inquiry Case No. 17 of 2011 registered with the court of learned JMFC, Radhanpur, which is culminated in FIR registered with Radhanpur Police Station for the offence punishable under Section 406, 420 and 114 of the Indian Penal Code. 2. Brief facts of the case are that in pursuance of a deed of mortgage dated 25th March, 1963, the father of the complainant namely Koli Kama Mehta, mortgaged a piece of agricultural land, bearing revenue survey no. 193/2 admeasuring acre 8 guntha 25 of village Dev, Taluka: Radhanpur in favour of the father of the applicants no. 1 and 2 and grand father of the applicants no.3 and 4 namely Ramabhai Hemrajbhai Patel for Rs. 800/-. That, the actual physical possession of the mortgaged land was handed over on the date of execution of the aforesaid deed and as per such deed, six years period was prescribed for repayment and it was further stipulated that on the repayment of mortgaged money and other amounts, the mortgagee will redeem the mortgaged property and returned the physical possession of the mortgaged property. That subsequently, mortgagor Kamabhai Methabhai received Rs. 100/- more and as such, sold the land to the mortgagee Ramabhai Hemrajbhai Patel. An entry No. 278 in the village form no. VI to that effect was mutated on 5th July, 1963. The son of Manji Hari raised an objection against the entry. That, the land in question has come in the share of Lala Rama and Lala Rama is using, occupying and cultivating the land in question since more than 30 years and accordingly entry No. 478 was mutated in village form No.VI on 10th March, 1973 and certified on 24th February 1974. In the year 1975, a proceeding u/s. 84C was initiated by the Mamlatdar & ALT, Radhanpur. But, after due inquiry, the proceedings were dropped. An entry No. 520 to that effect was mutated on 20.09.1975 in village form No.6 and it was certified. In village form No. 7/12, name of the applicant no.3 was recorded since many years. In the year 1975, a proceeding u/s. 84C was initiated by the Mamlatdar & ALT, Radhanpur. But, after due inquiry, the proceedings were dropped. An entry No. 520 to that effect was mutated on 20.09.1975 in village form No.6 and it was certified. In village form No. 7/12, name of the applicant no.3 was recorded since many years. That, notice under section 135D of the Bombay Land Revenue Code was served upon the father of Opponent no.2 namely Koli Kama Metha on 05th July, 1963. The statements of the mortgagor and the mortgagee were recorded on the same day by the then Talati cum Mantri, Bandhwad. That, the opponent no.2 despite having knowledge about all these facts with, an ulterior motive, he lodged a private complaint on 20th July, 2011 alleging inter alia that the land known as Patdo, bearing Survey No. 193/2 has been mortgaged on 25th March, 1963 for Rs. 800/- and because of their weak financial condition, the land remained mortgaged. The applicants, in connivance of each other, have got the land mutated in their names as the owner. That, the amount of mortgage money was offered to the applicants, but the applicants refused to accept the same and created forged documents of title in connivance with each other. That, the actual possession and occupation of the land has remained with the applicant no.3 all throughout and the applicants no. 1 to 4 in collusion and connivance with Talati-cum-Mantri have got the land in their name as owner and thereafter, the applicants concerned sold the land to the applicants no.5. 2.1 It has also been alleged that on 28th June, 2011, the opponent no.2 sent the amount of Rs. 800/- ie., the mortgage by money order and submitted a complaint before Radhanpur Police on 20th December, 2008 but no actions were taken and hence the private complaint was filed in the court of the learned JMFC, Radhanpur on 20th July, 2011. That, learned JMFC ordered PSI, Radhanpur to report within 30 days as to what steps are taken on the complaint of opponent no.2 and in the meanwhile stayed the proceedings of private complaint u/s. 210 CrPC. On perusing the report submitted by the PSI, Radhanpur, learned JMFC Radhanpur, vide order dated 07.10.2011, ordered inquiring under Section 156(3) CrPC. That, learned JMFC ordered PSI, Radhanpur to report within 30 days as to what steps are taken on the complaint of opponent no.2 and in the meanwhile stayed the proceedings of private complaint u/s. 210 CrPC. On perusing the report submitted by the PSI, Radhanpur, learned JMFC Radhanpur, vide order dated 07.10.2011, ordered inquiring under Section 156(3) CrPC. That, Radhanpur Police registered an FIR on 11th October, 2011 against the applicants for offence punishable under Sections 406, 420 and 114 of the IPC. 3. Heard learned advocate Mr. PJ Kanabar appearing on behalf of the applicants, learned advocate Mr. Nirad D. Buch appearing on behalf of the respondent no.2 and learned APP Mr. Rutvij Oza appearing on behalf of the respondent no.1. 4. Learned advocate Mr. PJ Kanabar appearing on behalf of the applicants submitted that the mortgagee has enjoyed ownership and possession of the subject land for last more than 30 years openly, peacefully and without any interruption by anybody. That, entertainment of a criminal complaint at this stage would amount to abuse of process of law. That, the complaint is lodged almost after 48 years by the respondent no.2 and no explanation of such an unusual and inordinate delay is given. That, the complaint does not disclose commission of any offence nor does it makes out a case against the applicants. That, the allegations made in the complaint are so absurd, on the basis of which, no prudent person can ever reach to a just conclusion. That, there is no sufficient ground for proceeding against the applicants. The criminal proceeding as such is manifestly attended with malafide, and is maliciously instituted with an ulterior motive for wreaking vengeance on the applicants. In absence of there being any explanation to inordinate delay of more than 30 years in lodging the complaint, this court does not deem it fit to condone the same. 5. It is further submitted by learned advocate Mr. PJ Kanabar appearing on behalf of the applicants that mortgagor was failed to redeem the property in dispute within these years or up to 30 years from the date of execution of the mortgage deed in favour of the father of the applicants, and therefore, he failed to exercise the rights of redemption of the mortgage. PJ Kanabar appearing on behalf of the applicants that mortgagor was failed to redeem the property in dispute within these years or up to 30 years from the date of execution of the mortgage deed in favour of the father of the applicants, and therefore, he failed to exercise the rights of redemption of the mortgage. That, it gives a right to the applicants to sale the property in dispute, after passing of 30 years under the provisions of the Transfer of Property Act, 1882, and therefore, nothing wrong is committed by the applicants. That, civil dispute is tried to be converted into criminal by the respondent no.2. It is further submitted that it is a settled position of law that once the controversy is essentially of a civil nature and the civil proceedings are very much at large before the competent civil court, allowing prosecution of the same subject matter would tantamount to abuse of process of law, and therefore, criminal machinery may not be allowed to be misused by the complainant. Ultimately, it was requested by him to allow this application by quashing and setting aside the complaint, being Criminal Inquiry Case No. 17 of 2011 registered with the court of learned JMFC, Radhanpur, which is culminated in FIR registered with Radhanpur Police Station for the offence punishable under Section 406, 420 and 114 of the Indian Penal Code. 6. Per contra, Mr. Nirad D. Buch, learned advocate appearing on behalf of the respondent no.2 has opposed the averments made on behalf of the applicants and submitted that mortgage deed was executed in the year 1963 and sale deed was executed by the applicants no.1 to 4 in favour of the applicant no.5 on 15th May, 2007. That, the complainant/respondent no.2 made his best efforts to register a complaint before the police authority in the year 2008 as averred in the complaint, but his complaint was not registered then by the authority concerned. That, in the year 1994, a Civil suit was filed for redemption of the mortgage property by the respondent no.2 before the competent civil court, but it was dismissed, as last date of hearing was fixed on 27th October, 2002. That, after execution of sale deed by the applicants no. That, in the year 1994, a Civil suit was filed for redemption of the mortgage property by the respondent no.2 before the competent civil court, but it was dismissed, as last date of hearing was fixed on 27th October, 2002. That, after execution of sale deed by the applicants no. 1 to 4 in favour of the applicant no.5 on 15th May, 2007, the respondent no.2 came to know that mortgaged property was sold by the applicants no.1 to 4 and mortgagee were in possession of the property till then. In a capacity of trustee of the property and trust cannot sale the property to any person. Learned advocate Mr. Nirad D. Buch appearing on behalf of the respondent no.2 invited attention to Section 69 of the Transfer of Property Act and submitted that under the conditions enumerated in Section, mortgaged property cannot be permitted to be sold by the mortgagee in default of payment of mortgage money without intervention of the court. That, act of the applicants is clearly covered by section 405 of the Indian Penal Code, as it was contrary to the deed executed between the parties. That, only after revenue proceedings, the complainant came to know that sale deed of the property was executed. It is further submitted that this is not the stage where extraordinary jurisdiction of this Court needs to be exercised. That, the High Court should loath in interfering with the investigation to be undertaken by an executive and therefore, simply because a civil suit is pending, it cannot be said that criminal complaint may not be allowed. It was further submitted that once an offence is lodged before the appropriate authority, the said authority must be allowed to proceed further, to arrive at a truth. Learned advocate Mr. Nirad D Buch appearing on behalf of the respondent no.2 has further submitted that the allegations which are made in the complaint are serious in nature, prima facie, reflecting an offence being made out and therefore, at this stage of the proceeding, the investigation cannot be hampered or throttled by exercising inherent jurisdiction. It was further submitted that the recent trend on exercise of power under Section 482 CrPC is clearly defined by the Apex Court in which this power should be exercised sparingly and therefore, there is no embargo under Section 482 CrPC. It was further submitted that the recent trend on exercise of power under Section 482 CrPC is clearly defined by the Apex Court in which this power should be exercised sparingly and therefore, there is no embargo under Section 482 CrPC. That, simply because a civil suit is pending, the criminal law may not be disallowed. Ultimately, it was requested by him to dismiss the present application. 7. Learned APP Mr. Rutvij Oza appearing on behalf of the respondent no.1- State placed reliance on the report submitted by Radhanpur Police Station on 10th February, 2017 and argued that report indicates that an offence has been made out. It is further submitted that the investigation cannot be hampered in such a background of alleged serious offence, as the complaint is at initial stage, and therefore, the investigation thereof should not be intercepted in exercise of inherent jurisdiction. Learned APP has further submitted that the applicants will have appropriate remedy at an appropriate stage, if aggrieved after investigation and therefore, since the applicants are left with other remedy at an appropriate stage, this is not the stage where the Court may hamper the process of investigation and therefore, ultimately it was submitted not to interfere with the present proceedings and dismiss the same by vacating interim relief. 8. Heard learned advocates appearing on behalf of the respective parties at length. 9. Having considered the facts of the case, submissions made by learned advocates for the respective parties as well as documents produced on record, it appears that mortgage dated 25th March 1963 was executed by the father of the respondent no.2 namely Koli Kama Metha mortgaging a piece of agricultural land, bearing revenue survey no. 193/2 admeasuring acres 8 guntha 25 at village Dev, Ta: Radhanpur in favour of the father of the applicants no. 1 and 2 and grand father of the applicants no.3 and 4 namely Patel Ramabhai Hemrajbhai for Rs. 800/-. It is pertinent to note that no transaction of the mortgaged deed was carried out by the respondent no.2 with any of the applicants, as same transaction was carried out on 25th March 1963. It transpires from the averments made, mortgaged deed produced on the record, that actual possession of the mortgaged land was handed over on the date of execution of the aforesaid deed. It transpires from the averments made, mortgaged deed produced on the record, that actual possession of the mortgaged land was handed over on the date of execution of the aforesaid deed. As per the condition incorporated in the deed, six years time was prescribed for redemption and it was further provided that on redemption of the mortgaged money and other amount, the mortgagee will redeem the mortgaged property and return physical possession of the said property. It also appears from the averments made in the deed that subsequently, the mortgagor Kamabhai Methabhai received Rs. 100/- more. That, entry No. 278 in the village form No. 6 to that effect was mutated on 5th July, 1963. That, the son of Manji Hari raised an objection against the entry. It also appears that vide entry no. 478 mutated in the village form no.6 on 10th March, 1973 and certified on 24th February, 1974. In village form no. 7/12 name of the applicant no.3 was recorded since many years. It also appears that statements of mortgagor and mortgagee were recorded by the competent authority ie., Talati-cum-Mantri, Bandhwad. That, the respondent no.2 despite having knowledge about all these facts, made no attempt to redeem the mortgaged land to the applicants or from the father of the applicants at any point of time. It appears that actual possession and occupation of the land remained with the applicant no.3. There is nothing on record that the respondent no.2 sent an amount of Rs. 800/- on 28th June, 2011 in respect of the mortgaged property for redemption of the same by money order and thereafter, a complaint was lodged before the Radhanpur Police Station on 20th December, 2008, but no action was taken and hence, a private complaint was filed in the court of learned JMFC Radhanpur. From the order passed by the learned JMFC, Radhanpur on 7th October, 2011, it appears that the police report under Section 210 CrPC as well as complaint were considered by the learned JMFC and has observed that no police complaint was registered as averred by the complainant in his complaint. From the order passed by the learned JMFC, Radhanpur on 7th October, 2011, it appears that the police report under Section 210 CrPC as well as complaint were considered by the learned JMFC and has observed that no police complaint was registered as averred by the complainant in his complaint. Therefore, there is a reason to believe that averment made by the complainant that he had lodged a complaint before Radhanpur Police Station on 20th December, 2008 appears to be false averments, because report of the learned JMFC is very clear that no such complaint was registered with the police Station. There is no sufficient explanation offered by the respondent no.2 in lodging a complaint of the transaction carried out on 25th March, 1963, a date of mortgaged deed. It is alleged that when land was sold by the applicants no.1 to 4 to the applicant no.5 in the year 2007, he came to know that the land in dispute was transferred by the applicants in collision with each other. The statement appears to be incorrect as no complaint was lodged by the respondent no.2 in the year 2008 before Radhanpur Police Station as alleged in the complaint. For the first time, on 7th October 2011, the complainant lodged a private complaint before the learned JMFC Sami, which was registered as Criminal Enquiry No. 17 of 2011. It also appears that as civil suit was filed by the respondent no.2 against the applicants and others before learned Civil Judge (J.D.) at Radhanpur Court vide Regular Civil Suit No. 23 of 1994 after passing of 30 years from the date of mortgage deed, which came to be dismissed by the Court on 28th October, 2002. It appears that no steps were taken for restoring the suit. Prima facie, the dispute appears to be civil in nature, however, respondent no.2 tried to convert the same by giving criminal colour. The respondent no.2 failed to take any action to redeem the mortgaged land from the applicants, and therefore, he cannot be benefited under Section 69 of the Transfer of Property Act, as relied by learned advocate Mr. Nirad D Buch appearing on behalf of the respondent no.2.. No evidence is produced on the record offering money of Rs. 800/- for redemption of mortgaged land from the applicants. Nirad D Buch appearing on behalf of the respondent no.2.. No evidence is produced on the record offering money of Rs. 800/- for redemption of mortgaged land from the applicants. Hence, the averments made in the complaint by the respondent no.2/complainant appears to be false and frivolous on this issue. 10. This Court in Criminal Misc. Application No. 9849 of 2013 with Criminal Misc. Application No. 15899 of 2016 in Criminal Misc. Application No. 9849 of 2013 observed that when dispute is found to be civil in nature and pending before the competent court, the complaint requires to be quashed and set aside. 11. The aforesaid circumstances takes this Court to some of the propositions of law laid down by the Hon'ble Apex Court on the issue of exercising powers under Section 482 of the Code of Criminal Procedure :- (a) In a case reported in 2015 1 SCC 513 (Rajib Ranjan and Others v. R. Vijaykumar), the Hon'ble Apex Court while dealing with an issue related to civil proceedings vis-a-viz a criminal complaint, propounded a feature analysing the chronology of events and has held that allegations of fabricating records were mischievously made just to give colour of criminality to a civil case and further, the same were made after losing battle in civil proceedings. Hence, the Apex Court was of the opinion that the complaint was not bonafide amounted to misuse and abuse of the process of law and thereby, quashed the complaint. (b) Now, if the case on hand is to be seen, it is quite clear that the disputed document was forming part of the Civil suit way back in 2003 and taking advantage of reiteration of production in the year 2012, in 2013, a complaint came to be filed. The record as stated above indicates that the respondent complainant is very much a part of the civil proceedings and was shown as defendant No.1 way back in 2003 and therefore, the ratio laid down by Apex Court appears to be applicable to the case on hand and therefore, the relevant extract contained in the Paragraph of the above decision is reproduced hereunder :- 25. In Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 , the Court reiterated the scope and ambit of power of the High Court under Section 482 of the Code in the following words: “23. In Inder Mohan Goswami and another v. State of Uttaranchal and others, (2007) 12 SCC 1 , the Court reiterated the scope and ambit of power of the High Court under Section 482 of the Code in the following words: “23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. 24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the could would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases 25. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. DPP, 1 1964 AC 1254 Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in DPP v. Humphrys, 1977 AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved. 46. He further mentioned that the court's power to prevent such abuse is of great constitutional importance and should be jealously preserved. 46. The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 CrPC though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.” (c) In yet another decision in the case of Pooja Ravinder Devidasani v. State of Mahrashtra and Another reported in (2014) 16 SCC 1 , where also the Hon'ble Apex Court has considered in a similar way and found that the proceedings are required to be quashed from being misused and in Paragraph 30 it was held as under :- “30. Putting the criminal law into motion is not a matter of course. To settle the scores between the parties which are more in the nature of a civil dispute, the parties cannot be permitted to put the criminal law into motion and courts cannot be a mere spectator to it. Before a Magistrate taking cognizance of an offence under Sections 138/141 of the NI Act, making a person vicariously liable has to ensure strict compliance with the statutory requirements. The superior courts should maintain purity in the court. Before a Magistrate taking cognizance of an offence under Sections 138/141 of the NI Act, making a person vicariously liable has to ensure strict compliance with the statutory requirements. The superior courts should maintain purity in the court. The High Court ought to have quashed the complaint against the appellant which is nothing but a pure abuse of process of law.” (d) In another decision in the case of D.P. Gulati, Manager Accounts, Jetking Infotrain Limited v. State of Uttar Pradesh and Another reported in 2015 11 SCC 730 , the Apex Court while dealing with the powers under Section 482 of the Code of Criminal Procedure has propounded that this exercise of power is aimed at to prevent the abuse of process of law and the duty under Section 482 of the code of Criminal Procedure is to see and secure the ends of justice and also that no proceedings are abused. The relevant paragraph of the said decision is worth to be taken note of and hence, reproduced hereinafter :- “7. We have carefully considered the rival submissions made before us. From a bare perusal of Section 482 of the Code, it is clear that the object of exercise of power under the section is to prevent abuse of process of law, and to secure ends of justice. In Rajiv Thapar v. Madan Lal Kapoor, this Court has enumerated the steps required to be followed before invoking inherent jurisdiction by the High Court under Section 482 of the Code as under :- “30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC : 30.1. Step one : whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two : whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. 30.3. Step three : whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer is all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.” 12. From the above-stated documents, facts and in light of the decision cited above, this Application is hereby allowed. 13. Complaint, being Criminal Inquiry Case No. 17 of 2011 registered with the court of learned JMFC, Radhanpur, which is culminated in FIR, registered with Radhanpur Police Station for the offence punishable under Section 406, 420 and 114 of the Indian Penal Code is hereby quashed and set aside accordingly. 14. Ad interim relief granted earlier stands confirmed. Rule nisi made absolute to the aforestated extent. No costs.