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2017 DIGILAW 680 (GUJ)

Niraj Damodarprasad Poddar v. State of Gujarat

2017-03-24

A.J.SHASTRI

body2017
JUDGMENT : A.J. Shastri, J. 1. The present Special Criminal Application is filed under Section 482 of the Cr.P.C. r/w Articles 226 and 227 of the Constitution of India for seeking quashment of the complaint bearing C.R. No. I-70 of 2010 registered with Palsana Police Station, District - Surat as well as charge-sheet filed pursuant thereto as also the order dated 16.3.2011 passed by the learned Judicial Magistrate First Class. 2. The case, in brief, submitted by the petitioners, who are original accused Nos. 3 and 4, is that some parcel of land stated in the memo of petition are situated at village Palsana, Taluka - Palsana, District - Surat, precisely an agricultural land bearing Revenue Survey Nos. 539/1, 539/2 and 539/3 demonstrated in Para.3.1 were jointly owned, occupied and possessed and in cultivation of one Durgaben wd/o Dhirubhai Raghunathji, Thakorbhai Ambelal Desai, Ratilal Ambelal Desai and Ishwarbhai Ambelal Desai. These land owners had given special power of attorney in favour of Damodarprasad Tormal Poddar - father of petitioner No. 1 on 16.10.1993. The aforesaid owners also entered into an agreement to sell with father of petitioner No. 1 on 21.10.1993. Simultaneously, as per the say of the petitioners, these land owners have entered into an irrevocable power of attorney with the said power of attorney. With the aid and assistance of said power of attorney, Damodarprasad Tormal Poddar had given an application on 24.10.1994 for seeking non-agricultural permission with respect to land and submitted to the revenue department of District Panchayat. 2.1 Pursuant to such application, the District Development Officer, Surat vide order dated 29.12.1994 was pleased to accord the permission to use the same for non-agricultural land purpose. It has further been asserted that out of the said land, a piece of land admeasuring 652 sq. mtrs. From Block No. 557 and a piece of land admeasuring 832 sq. mtrs. Out of Block No. 558 totalling 1484 sq. mtrs. Transferred in favour of Smt. Nirmalaben Damodarprasad Poddar by registered sale deed on 6.6.2007. This sale transaction also came to be mutated in revenue record for the mutation entry No. 4760 which was later on duly certified as well. mtrs. Out of Block No. 558 totalling 1484 sq. mtrs. Transferred in favour of Smt. Nirmalaben Damodarprasad Poddar by registered sale deed on 6.6.2007. This sale transaction also came to be mutated in revenue record for the mutation entry No. 4760 which was later on duly certified as well. A further case has been put up by asserting that one Umesh S. Joshi on his letterhead given an application on 3.3.2010 requesting the District Collector, Surat to initiate strong action against the executors of the said sale deed by alleging that despite the death of Durgaben Dhirubhai Desai on 4.3.2000, a sale deed came to be executed on 6.6.2007 after her death by utilizing her power of attorney. A further assertion is made that surprisingly upon said application submitted by stranger Mr. Umesh Joshi, who has nothing to do with the land in question, in suo-motu exercise of power the District Collector, Surat on 15.6.2007 passed an order cancelling the mutation entry made on the basis of registered sale transaction and it is against the said order, the proceedings have been initiated before the State authorities which on the day of petition was pending. Based upon this circumstance, the Mamlatdar, Palsana Mr. K.S. Jhala has filed the impugned complaint before the Palsana Police Station on 14.8.2010 despite the fact that proceedings are pending before the State authority. The present petitioners were impleaded as accused in the complaint on the ground that they signed as witnesses in the application for no objection and agreement submitted in the proceedings of mutation entry. Pursuant to the said complaint, the petitioner No. 1 was arrested on 19.8.2010, where as petitioner No. 2 was arrested on 26.9.2010 in connection with the complaint. Resultantly, the regular bail application came to be submitted in which the petitioner No. 1 was enlarged on bail by learned Additional Sessions Judge on 1.9.2010 whereas petitioner No. 2 preferred an application which was also granted vide order dated 1.10.2010. The petitioners have further asserted in the petition that Mr. Resultantly, the regular bail application came to be submitted in which the petitioner No. 1 was enlarged on bail by learned Additional Sessions Judge on 1.9.2010 whereas petitioner No. 2 preferred an application which was also granted vide order dated 1.10.2010. The petitioners have further asserted in the petition that Mr. Umesh S. Joshi, an employee of the Gujarat Eco Textile Park Ltd., raised the grievance about the transaction in question with a view to pressurize the father of petitioner No. 1 from pursuing the proceedings of cancellation of NA permission granted to the Gujarat Eco Textile Park Ltd. and other irregularities committed by them while obtaining subsidies and other permissions for the project from the State and the Central Government. Therefore, at the behest of said Mr. Umesh Joshi, it appears that a complaint came to be lodged by respondent No. 2 and ultimately, with an intention to cancel the NA permission, has exchanged the correspondence which indicates that Shri Ashok J. shah, who happened to be the District Collector, Surat at the relevant point of time was personally interested to harass the petitioners so as to built up a pressure to withdraw themselves from pursuing the proceedings of cancellation of NA permission granted in favour of the Gujarat Eco Textile Park Ltd. It is in this factual matrix the complaint is sought to be quashed by submitting the present petition under Section 482 of the Cr.P.C. r/w Article 226 and 227 of the Constitution of India. 2.2 This Court while entertaining the petition was pleased to issue notice on 11.2.2011 taking note of the situation that main allegations which are levelled are that they merely signed as a witness in the mutation proceedings as reflected on Page-79 of the petition compilation. The Court while entertaining has also taken note of agreement to sell, payment of full consideration to the original owner and the fact that at no point of time, any grievance is raised by the original owners and the registered sale deed came to be executed upon availing NA permission. The order dated 11.2.2011 is reproduced hereinafter: 2.3 Subsequently, the matter came up for consideration before the Court on 6.3.2012 wherein, after submission of charge-sheet papers attached to the petition and after examining the same, the Court found that matter requires consideration. The order dated 11.2.2011 is reproduced hereinafter: 2.3 Subsequently, the matter came up for consideration before the Court on 6.3.2012 wherein, after submission of charge-sheet papers attached to the petition and after examining the same, the Court found that matter requires consideration. Hence, by granting the relief in terms of Para 8(F), the petition came to be admitted. All throughout the interim protection continued. Resultantly, now the matter has come up for final disposal before this Court in the aforesaid background. 3. Mr. N.V. Gandhi, learned counsel appearing for the petitioners has submitted that filing of complaint is nothing but, a coercive step aimed at harassing the petitioners and though there is no illegality of any nature nor offence as alleged is committed, just with a view to apply pressure at the behest of the company referred to above, the respondent No. 2 has utilized himself a leaver, built up pressure against the petitioners. This action therefore tantamounts to be a sheer abuse of process of law. Mr. Gandhi has submitted bare reading of the FIR is not even satisfying the basic ingredients of the offence alleged and therefore, since prima facie elements which are required to attract the offence as alleged are missing, the complaint deserves not to be entertained. Mr. Gandhi has further submitted that at the best, from the overall circumstance it is reflecting from the papers contained in the charge-sheet that except petitioners being witness in the revenue proceedings, there appears to be no role which would attract the offence alleged. It has also been contended that ultimately, the NA permission has been granted by the authority, mutation entry has also been effected after taking note of registered sale transaction and further Mr. Umesh Joshi had nothing to do with actual land in question and therefore, suo-motu exercise of power which is exercised had remained the subject matter of proceeding before the State authority which at a time when petition came to be entertained, were pending. Mr. Umesh Joshi had nothing to do with actual land in question and therefore, suo-motu exercise of power which is exercised had remained the subject matter of proceeding before the State authority which at a time when petition came to be entertained, were pending. Mr. Gandhi has further drawn the attention of the Court that said proceeding now came to be disposed of vide judgment and order dated 23.1.2017 recently, a copy whereof is served to the learned APP appearing for the respective parties and tendered before the Court wherein, after examining and after hearing at length, the Collector, Surat was pleased to restore the possession and the said order has rectified the entire situation which was erupted pursuant to the suo-motu exercise of power by the Mamlatdar and therefore, there remains nothing against the petitioners. There also remains no irregularity and the role is abundantly clear which would not constitute any offence and therefore, Mr. Gandhi has contended that this legal development has, on the contrary, fortified the stand taken by the petitioners in the present proceedings and therefore also, to allow the criminal proceedings to precipitate further and continue will amount to abuse of process of court machinery and therefore, requested the Court to quash the complaint and charge-sheet filed pursuant to the same. 3.1 Mr. N.V. Gandhi, learned counsel has further contended that bare reading of the complaint is not disclosing any commission of crime by the petitioners, no case is made out against the petitioners and Mr. Umesh Joshi pursuant to whom respondent No. 2 became the complainant is an employee of the Gujarat Eco Textile Park Ltd., who is personally neither concerned with nor connected with the land in question. The complaint appears to be under the influence of the Gujarat Eco Textile Park Ltd. for settling the score with the petitioners and therefore, according to Mr. Gandhi, such conduct or proceedings cannot be allowed to be encouraged any further. Mr. The complaint appears to be under the influence of the Gujarat Eco Textile Park Ltd. for settling the score with the petitioners and therefore, according to Mr. Gandhi, such conduct or proceedings cannot be allowed to be encouraged any further. Mr. Gandhi has further contended that complaint itself is vague and filed with an ulterior motive to built up pressure on the father of petitioner No. 1 from pursuing proceeding in relation to NA permission granted to the Gujarat Eco Textile Park Ltd. and therefore, such attempt on the part of complainant to be an instrument to harass somebody amounts to abuse of process of law and therefore, by placing reliance upon the decision of Apex Court in case of State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., reported in AIR 1992 SC 604 it has been contended that this is a fit case in which powers under Section 482 of the Cr.P.C. coupled with Articles 226 and 227 deserve to be exercise so as to curve this exercise of the process of law. 3.2 Mr. N.V. Gandhi, learned counsel for the petitioners has further contended that from the bare reading of the complaint not only the offence is not made out but, even basic element to constitute an offence of criminal breach of trust is also missing completely and therefore, in such a situation in view of law laid down in another decision of the Apex Court in case of State of Karnataka v. Arun Kumar Agarwal & Ors., reported in (2000) 1 SCC 210 , the complaint and the charge-sheet deserve to be quashed. 3.3 By way of draft amendment and taking support of the same, Mr. Gandhi has further contended that the complaint based upon the premises that irrevocable power of attorney dated 21.10.1993 is not coupled with the interest and hence, same stands cancelled upon the death of Durgaben. Now, this statement of the Mamlatdar is contrary to the show cause notice itself and the orders dated 2.3.2010, 29.6.2010 as well as order dated 10.8.2010 passed by the Deputy Collector, Stamp Duty. Mr. Now, this statement of the Mamlatdar is contrary to the show cause notice itself and the orders dated 2.3.2010, 29.6.2010 as well as order dated 10.8.2010 passed by the Deputy Collector, Stamp Duty. Mr. Gandhi by asserting this has taken a specific plea that simply because Durgaben has died, the power of attorney cannot extinguish as not only the banakhat was executed but, power of attorney itself was of irrevocable in nature and was with interest and therefore, there is a clear distinction between the simple power of attorney when not created interest in the said property and power of attorney creating with interest and here, since the power of attorney is with interest and hence, no question evaporated on account of death of the executor. Mr. Gandhi, learned counsel has further contended that the Mamlatdar, who exercised the jurisdiction, had no authority to bring the complaint because aggrieved party has not come up to lodge the prosecution and therefore, even apart from this technicality from the entire charge-sheet papers, an unequivocal role if alleged it only emerges that at the best the petitioners appeared as witness in the transaction and except this, there is no incriminating material to connect the petitioners with commission of crime and therefore, this amounts to not only harassing the petitioners but, a sheer abuse of process of law and therefore, in view of decisions which are cited by learned counsel appearing for the petitioners, no case is made out by the prosecution which would clearly justify his contention that complaint in question is nothing but the abuse of process of law. In support of the case, Mr. Gandhi has relied upon the decisions of the Apex Court as well as this Court in case of Manoj Narain Agrawal v. Shashi Agrawal, reported in 2009 (6) SCC 385 as also in case of Jalaram Developers, through partner v. Nilaben Mahendrakumar Vaidya, reported in 2010 (1) GLH 354 . 4. Per contra, Mr. L.R. Poojari, learned APP has vehemently opposed the petition by contending that the charge-sheet has been filed in the present proceedings and therefore, no powers under Section 482 of the Cr.P.C. r/w Articles 226 and 227 of the Constitution of India can be exercised. 4. Per contra, Mr. L.R. Poojari, learned APP has vehemently opposed the petition by contending that the charge-sheet has been filed in the present proceedings and therefore, no powers under Section 482 of the Cr.P.C. r/w Articles 226 and 227 of the Constitution of India can be exercised. It has also been contended by learned APP that the complaint has been filed at the instance of Collector's order and not independently and therefore, it cannot be said or presumed at this stage that complaint had been filed by the Mamlatdar at the behest of company or at the instance of Mr. Umesh Joshi. Learned APP has further contended that since the charge-sheet has been filed and alternate remedy is already available for seeking discharge from the prosecution and therefore, since the petitioners are not remediless, the petition may not be entertained at this stage of the proceeding and therefore, Mr. Poojari has vehemently opposed the petition from being entertained any further and ultimately, requested the Court to set aside the impugned complaint and the charge-sheet. Learned APP has further contended that scope of Section 482 of the Cr.P.C. is very limited and can be used sparingly and not in a routine manner and therefore, once the charge-sheet has been filed, the petitioners may be directed to or relegated to a proper remedy available before the trial court and therefore, by pointing out this, Mr. Poojari has requested the Court to dismiss the petition at this stage of the proceeding. 5. Having heard the learned counsel appearing for the respective sides and having gone through the material on record and having gone through the averments contained in the complaint and the relevant papers contained in the charge-sheet, following circumstances are required to be considered while arriving at ultimate conclusion: "(1) From the record and the recent development which has been pointed out vide order dated 23.1.2017 passed in Revision Case No. 29 of 2010, the District Collector, Surat, after hearing the parties, by detailed order, has examined the documents and has restored the entry No. 4760 made on 15.6.2007. While passing this order, the Collector, Surat has taken note of power of attorney executed after receiving consideration on 21.10.1993 in favour of Mr. Damodarprasad Tormal Poddar and there is a separate power of attorney irrevocable in nature has also been executed by Mr. Thakorebhai Ambelal Desai. While passing this order, the Collector, Surat has taken note of power of attorney executed after receiving consideration on 21.10.1993 in favour of Mr. Damodarprasad Tormal Poddar and there is a separate power of attorney irrevocable in nature has also been executed by Mr. Thakorebhai Ambelal Desai. So much so that pursuant to the order of non-agricultural permission, the premium amount which has been determined vide order dated 29.2.04, (sic) the said amount has also been paid and the land has been transferred by registered sale transaction in favour of Smt. Nirmalaben Damodarprasad Poddar and based upon this registered sale transaction, an entry came to be made and therefore, it is clearly indicated that power of attorney has been executed based upon which premium amount has also been paid, NA permission has also been granted and registered sale transaction has taken place with respect to this transaction. (2) It further indicated from the reading of the complaint filed by respondent No. 2, who happened to be the Mamlatdar in which undisputed fact that petitioners have signed as witnesses to the transaction and their role appears to be not travelling beyond it as is visible from the averments of the complaint. (3) On the record of the case, an agreement to sell is also appearing, the power of attorney is also visible and irrevocable power of attorney is also executed which is part of the petition compilation and a registered sale document is also produced which indicate that even if Durgaben Dhirubhai died, the same is of no consequence in view of the fact that power of attorney was with interest and in addition thereto, on Page-79 of petition compilation based upon signature of Thakorebhai Ambelal and other persons, no objection also came to be submitted. (4) In any case, the charge which has been framed which is reflecting on Page-102 of petition compilation in which the assertion which has been made qua accused Nos. 3 and 4 i.e. present petitioners, that they stood as witnesses to the revenue proceedings and therefore, main charge qua petitioners is restricted to that only. (4) In any case, the charge which has been framed which is reflecting on Page-102 of petition compilation in which the assertion which has been made qua accused Nos. 3 and 4 i.e. present petitioners, that they stood as witnesses to the revenue proceedings and therefore, main charge qua petitioners is restricted to that only. (5) This entire controversy has also got a different dimension by virtue of recent development took place during the pendency of present petition, namely, the order passed by the District Collector, Surat dated 23.1.2017 and therefore, conjoint reading of the charge-sheet and the relevant papers, the reading of the recent development, namely, the order of the Collector, Surat, in addition thereto even the averments contained in the petition and the draft amendment indicate that at the best, so far as present petitioners are concerned, the only role is that they stood as witness. But then averments are not that which can prima facie establish any offence being committed by them. Looking to their peculiar position prevailing on record, it appears that to constitute an offence, the averments contained in the complaint are no sufficient enough to hold them responsible even prima facie so that they have to face the litigation and therefore, considering this peculiar position of the petitioners, it appears that to continue the criminal prosecution against the petitioners amounts to a coercive step which requires to be set at naught." 6. Mr. N.V. Gandhi, learned counsel for the petitioners, to some extent, is justified in view of the fact that the power of attorney is irrevocable and simply because the petitioners have identified as witnesses, nothing turns on it and therefore, prima facie there appears to be no ill-motive which attracts the commission of crime by the petitioners. In addition thereto, the transaction in question is not the subject matter of any civil proceedings as stated by Mr. Gandhi and even if so, this controversy can be resolved by the civil proceedings and not the criminal proceedings. The controversy involved in the complaint entailed the civil consequences as has been contended and therefore, to entertain the petition would not prejudice the respondent No. 2 in any manner. Mr. Gandhi and even if so, this controversy can be resolved by the civil proceedings and not the criminal proceedings. The controversy involved in the complaint entailed the civil consequences as has been contended and therefore, to entertain the petition would not prejudice the respondent No. 2 in any manner. Mr. Gandhi has submitted that even during the course of trial of the case if ultimately it is found that case is made out, the prosecution has always a remedy open to resort to Section 319 of the Cr.P.C. and therefore, keeping all these factors in mind, it appears that the petition deserves to be allowed in the aforesaid terms. 7. To conclude that petitioners are at this stage not to be dragged into prosecution, the Court has taken an assistance of following decisions. First, in case of Manoj Narain Agrawal (supra) wherein, it has been observed as under: "27. We may only notice that in State of Haryana & Ors. v. Bhajan Lal & Ors. 1992 Suppl. (1) SCC 335, it has, inter alia, been held: "6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 7.1 In another decision, in case of Nilaben Mahendrakumar Vaidya (supra), it has been held as under: "28.1 In the case of Her Highness Maharani Shatadevi v. Savjibhai H. Patel and Ors., reported in 1998 (2) GLH 70 , a question arose before the Division Bench of this Court as to how will be the effect of death of the defendant - appellant and as to whether the agreement can be said to have come to an end or automatically terminated and authority stands revoked by the death of the principal during the pendency of the suit. From the analysis of the documents in question, the Court found that the parties had agreed for the execution of the scheme for the welfare of the members of the weaker Section. The scheme was required to have a statutory sanction and the carrying out of the same could not be intended to cease on the ground of unfortunate death of the owner. The Court further found that no termination can be brought about even on account of death as is clearly provided in the statutory illustration given under Section 202 of the Contract Act. The Court further referred to Halsbury's Laws of England, 4th Edition, Vol. I, at page-524 in para 872, it is mentioned as under: Power of attorney. Where a power of attorney is expressed to be irrevocable and is given to secure a proprietary interest of the donee or the performance of an obligation owned to the donee, the power is irrevocable either by the donor without the consent of the donee or by the death, incapacity, bankruptcy, winding up or dissolution of the donor, so long as the donee has the interest or the obligation remains un-discharged. A power of attorney given to secure a proprietary interest may be given to the person entitled to the interest and persons deriving title under him to that interest, and those persons will be the duly constituted donees of the power for all the purposes of the power, without prejudice to any right to appoint substitutes given by the power. 28.2 The Court further referred to Bowstead and Reynolda on Agency, 16th Edition, at page Nos. 660-661, where it has been mentioned that the authority expressed to be irrevocable is not determined by death, etc. In Chitty on Contract, 27th Edition, Vol.2 pages 94-95, the learned Author while dealing with the Termination of Authority has commented that, if there is an interest coupled with the authority, that is, if the agreement is entered into by Deed or on sufficient consideration, whereby an authority is given for the purpose of providing a security, such an authority is irrevocable even by death, etc. 28.3 After considering the facts of the case and the law on the subject, the Court held that once the documents are executed, natural consequences have to follow and the documents cannot be said to have ceased to be operative unless and until it is shown that documents have been executed playing fraud or signatures are not genuine. There is nothing on record to show that these documents were got executed by playing any fraud and it is nobody's case that documents were not executed, rather it is admitted that documents had been executed and they had been duly signed. 28.4 In Bhagwanbhai Karamanbhai Bharvad v. Arogyanagar Co Operative Housing Society Limited, 2004 (1) GLR 506 , this Court after relying on the decision of the Division Bench of this Court, in case of Her Highness Maharani Shantadevi (supra), held that agency would not be terminated under Section 202 of the Contract Act, even after the death of person who has authorized, where there is no express contract for termination. The Court further took the view that invalid transaction per se must be invalid but it will not be invalid unless it is decided or declared to be so. The holder of power of attorney need not obtain consent of donor and Legal representatives in view of the fact that defendant had already parted his power for execution sale deed. Sale deeds will be deemed to be operative from the date of their execution." 8. Therefore, keeping these salutary principles in mind on the exercise of jurisdiction, the case is made out by the petitioners to grant the relief as prayed for in the petition and therefore, in view of aforesaid premises and in view of recent development and in view of proposition of law laid down by afore-mentioned decisions, the Court is of the considered opinion that present petition deserves to be allowed. The complaint being I-C.R. No. 70 of 2010 registered with Palsana Police Station, District - Surat is hereby quashed and set aside qua present petitioners. 9. The complaint being I-C.R. No. 70 of 2010 registered with Palsana Police Station, District - Surat is hereby quashed and set aside qua present petitioners. 9. It appears that the charge-sheet since not disclosing any material to constitute an offence against the petitioners looking to their peculiar role being alleged, the charge-sheet filed against the present petitioners is also quashed as criminal complaint qua present petitioners only is quashed hereby and as a consequence thereof, the impugned order dated 16.3.2011 passed by the learned Judicial Magistrate First Class, Palsana is deserves to be quashed and same is also hereby quashed and set aside. 10. However, this does not preclude the trial court to take resort to Section 319 of the Cr.P.C. if ultimately during the course of trial, any material stinking in nature is found against the present petitioners. 11. Rule is made absolute accordingly.