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2017 DIGILAW 977 (GUJ)

Rohit Chunilal Shah v. State of Gujarat

2017-05-04

B.N.KARIA

body2017
JUDGMENT : B.N. Karia, J. 1. The applicants-original accused have preferred this Application under Section 482 of the Code of Criminal Procedure {"Cr.P.C." for brevity} for quashment of the complaint being, Criminal Case No. 1864 of 2008, registered in the court of Judicial Magistrate, First Class, Mansa, District Mahesana for the alleged offence punishable under Sections 406, 418, 420, 468, 471, 34 and 120B of the Indian Penal Code and consequential proceedings arising therefrom. 2. The facts leading to filing of the present application in nutshell are as narrated hereunder: 2.1 That the applicants No. 1 and 2 are the real brothers of the respondent No. 2-complainant, and whereas, the applicant No. 3 is her nephew. They are six sisters and four brothers of deceased Shri Chunilal Natthubhai Shah. During his life time, out of his own resources, their father Shri Chunilal N. Shah acquired certain properties at Mansa as well as Mumbai. The father of complainant i.e., the respondent No. 2 herein passed away in the year 1948. It is the case of the complainant that though she being a legal heir of her deceased father, alongwith the applicants No. 1 and 2, she had not been given legal share, and therefore, the respondent No. 2 herein issued a notice on 07th July 2008 to the applicants No. 1 and 2. As the applicants No. 1 and 2 gave reply to the notice and she came to know that her brothers had mutually distributed the properties amongst themselves under a family arrangement and her legal share in the said properties has not been given to her, and therefore, she had alleged that the present applicants-accused have committed an offence of cheating, and hence, the complaint. 2.2 That thereafter, the complainant obtained a copy of property card from the office of City Surveyor, Mansa and came to know that the property situated at Mansa has been mutated in the names of her four brothers. That, the brother of the complainant viz., Jayantilal Chunilal (since deceased) had got the said property mutated in the names of her four brothers jointly on the basis of an affidavit. That, on 04th May 1974, by mutual consent and under family arrangement, the applicants No. 1 to 3 had distributed the said property in their names without consent of five sisters. That, on 04th May 1974, by mutual consent and under family arrangement, the applicants No. 1 to 3 had distributed the said property in their names without consent of five sisters. That, on 27th August 1971, the father of the applicant No. 3 passed away, and therefore, applicant No. 3 and his mother got the property of Mansa transferred in their names on the Government record. Moreover, the deceased brother of the complainant viz., Jayantilal Chunilal has sold his property on 16.05.1975 and the complainant and her other sisters are deprived of their legal shares. In this regard, the complainant lodged a private complaint against the present applicants before the learned Judicial Magistrate, First Class, Mansa, Dist: Mahesana, being inquiry Case No. 57/2007 for the offence punishable under sections 406, 418, 420, 468, 471, 34 and 120B of the Indian Penal Code. The learned Judicial Magistrate, First Class, Mansa has recorded verification on oath of the complainant and ordered to register the complaint and kept for Court Inquiry under section 202 Cr.P.C. After examining the said complainant on oath vide Exhibit-4 on 15th November 2008, the Court passed an order issuing process under section 204 Cr.P.C. against the accused-applicants herein for the offence punishable under Sections 406, 420, 467, 471 and 114 of the Indian Penal Code, and hence, this Application for quashing the impugned complaint. 3. Heard learned advocate Mr. Bharat K. Dave appearing on behalf of the applicants; learned advocate Mr. S.A. Baqui appearing on behalf of the respondent No. 2 and learned APP Mr. KP Raval appearing on behalf of the respondent No. 1-State. 4. Learned advocate Mr. Bharat K. Dave appearing on behalf of the applicants submitted that if at all there be any grievance of the complainant against the applicants herein, the same prima facie appears to be related to dispute in respect of obtaining legal share in her father's property from rest of the brothers, which even as per say of the complainant, had been distributed amongst her brothers atleast prior to 33 years, and therefore, the dispute being purely civil in nature, the complainant has tried to convert it into criminal. That, the applicant No. 1 got rented property at Bombay on the basis of a will of his mother and after receiving probate in the year 1975, which was with consent of the complainant and therefore, the complainant is not entitled to receive any share in the said property, but with a view to pressurize all brothers, the complainant concocted a story and this false complaint was lodged for harassing real brothers, who are younger to her. That, the complainant issued a notice on 07.07.2008 to the applicants No. 1 and 2 only asking for her share in the joint properties and account of business from the applicants and share from the income of their businesses. The applicants are running their business in individual and personal capacity and the said business is not inherited by them, so the complainant is not entitled to any profit earned by the applicants from their individual business. That, issuance of notice by the respondent No. 2 itself shows her intention to extract money from the applicants by alleging against the applicants herein had misappropriated joint properties of deceased father and thereby, the respondent No. 2 want to blackmail and in that way, the complainant has tried to abuse the process of law by filing present a false complaint against the applicants herein. That, the respondent No. 2 stated on oath in deposition given by her on 15.11.2008 that the respondent No. 2 admits that the applicant No. 1 and 2 were making payment of income from properties of forefathers regularly, but since last 6 months, the brothers have stopped making payment, which itself suggests that prior to 6 months of issuance of the notice to the applicants by the respondent No. 2 herein, she had no complaint, or grievance, or grudge against the applicants. That, as it is admitted by the respondent No. 2 in her complaint that affidavit was executed by deceased Shri Jayantilal Chunilal, brother of complainant in the year 1970 and the entries in property card were sanctioned on 15th July, 1970 by the City Survey Inquiry Officer and form of said inquiry was filled up by the said deceased brother-Shri Jayantilal Chunilal and his statement was recorded on oath and thereafter, all the six properties were entered in joint name of four brothers of the respondent No. 2. The said procedure was legally adopted by the City Survey Office, and thereafter, entries were mutated in the names of applicants and their brothers, and thereby, no illegalities were committed by any of the applicant, much less forgery committed, and therefore, no offence is committed by any of the applicants. 5. Learned advocate Mr. Bharat K. Dave appearing on behalf of the applicants has further argued that the mother of the applicants No. 1 & 2, and the respondent No. 2 executed a will. Being legal heirs, the applicants had acted as per will and they gave share of all the sisters. That, the notice issued by the respondent No. 2 to the applicants No. 1 and 2 has been issued in her individual capacity for herself and not on behalf of the remaining sisters, which suggests that she is aware that though she is not entitled for any legal share; except which she received as per will of mother of the applicants. According to learned advocate the respondent No. 2 wants to extract money from the applicants by filing a false complaint so as to pressurize them to give money, for which she is not entitled. That, the applicants No. 1 and 2 gave a detailed reply of the said notice of the respondent No. 2, which suggests good intention on the part of the applicants. But, the respondent No. 2 though warned by the applicants not to choose to take out any proceeding against them, despite that, just to pressurize them, the respondent No. 2 had filed the impugned false and frivolous complaint to harass the applicants. In support of his arguments, learned advocate Mr. Bharat K. Dave appearing on behalf of the applicant has placed reliance upon the following judgments: 1. Lalitaben Wd/o. Baldevbhai Manibhai Suthar v. Niruben Ramanbhai Suthar & Anr., reported in 2007 (1) GLH, 403; 2. Eramma v. Veerupana & Ors., reported in AIR 1966 SC 1879 . 6. It was lastly urged by learned advocate for the applicants to allow this Application and quash the impugned complaint. 7. Learned APP Shri KP Raval appearing on behalf of the respondent-State strongly opposed this Application contending that the powers under Section 482 Cr.P.C. should not be exercised by this Court lightly, but it should be exercised very sparingly. 6. It was lastly urged by learned advocate for the applicants to allow this Application and quash the impugned complaint. 7. Learned APP Shri KP Raval appearing on behalf of the respondent-State strongly opposed this Application contending that the powers under Section 482 Cr.P.C. should not be exercised by this Court lightly, but it should be exercised very sparingly. Learned APP contended that the applicants herein have already approached the Court of learned JMFC by filing discharge application. That, from the complaint and allegations made therein it prima facie appears that they are essentially constitute an offence of criminal nature, and therefore, the issues arising therefrom cannot be decided in a petition under Section 482 Cr.P.C. He further asserted that in such type of cases, the Court should be very slow in exercising the powers vested under the said section. According to the learned APP, prima facie, all the applicants are involved in the offence, as they have committed breach of trust as well as misappropriation. Hence, it was humbly urged by learned APP Shri K.P. Raval to dismiss this application. 8. In a similar way, Shri A.C. Baqui, learned advocate appearing on behalf of the respondent-2 : original complainant has strongly opposed the arguments made for and on behalf of the applicants by contending that the complainant is real sister of the applicants No. 1 & 2 and at present she is aged 72 years. That, father of the complainant belong to Mansa of District Mehsana and thereafter they shifted to Mumbai. That, he purchased and owned some properties at Mumbai and Mansa. That, the complainant was married at Ahmedabad and staying with her husband. That, the property situated at Mumbai and Mansa was managed by the accused Nos. 1 & 2. All the six sisters were married by then. That, the complainant had no idea of the profits being derived from the said property. That, a legal notice was issued by the complainant to the accused No. 1 & 2 on 7th July 2008 claiming her right and share in the property. That the background of the family was narrated by the complainant as well description of the properties was made by her in the said notice. That, the financial position of the complainant was not so sound and this fact was also expressed by her in her complaint. That the background of the family was narrated by the complainant as well description of the properties was made by her in the said notice. That, the financial position of the complainant was not so sound and this fact was also expressed by her in her complaint. That, one son of the complainant being handicapped and her brothers had stopped to help her before six months from the issuance of notice. That, the complainant came to know for the first time that the property situated at Mansa was distributed amongst the brothers without the consent of all the sisters. That, the complainant started inquiry from the office of the City Surveyor at Mansa from where she received a certified copy of the entry made in favour of four of her brothers qua the family property at Mansa. That, the accused persons have managed in getting the property mutated in their names on the record of the City Survey Office, Mansa by way of an affidavit, which was sworned by one of her brother-deceased Shri Jayantilal Chunilal Shah. That, names of all the four brothers were entered on the records of the City Survey Office, Mansa. That, all the brothers made a family arrangement in respect of the property at Mansa in the year 1970. That, the Hindu Succession Act came into force in the year 1956. That, till the year 1970, the said property remained in favour of the father of the complainant and she was then unmarried. Therefore, after the death of her father, the complainant is one of the legal heir of the deceased. That, she had made no grievance in respect of the property of Sakriben, situated at Mumbai viz., the property owned by the mother of the complainant. That, the arguments made in respect of her share in the property by virtue of the Hindu Succession Act, 1956 were made before the learned JMFC, Mansa and were considered by the Court below at the relevant point of time. Therefore, according to the learned advocate for the respondent No. 2-complainant, prima facie, all the applicants are involved in the offence; as alleged in the complaint, and thus, it was requested by him to dismissed the present application. 9. Therefore, according to the learned advocate for the respondent No. 2-complainant, prima facie, all the applicants are involved in the offence; as alleged in the complaint, and thus, it was requested by him to dismissed the present application. 9. Having considered the facts of the case, submissions advanced for and on behalf of the respective parties, documentary evidence produced on the record, it is an undisputed fact that the complainant and the applicants No. 1 & 2 are real brothers-sister, while the applicant No. 3 is her nephew. They are in all six sisters and four brothers. Father of the complainant-Shri Chunilal Shah, during his life time, had acquired some properties at Mansa and Mumbai. The said Shri Chunilal Shah passed away in the year 1948. Though she being legal heir of her father, the applicants No. 1 & 2 had not given her legal share, and therefore, the complainant issued a notice on 7th July 2008 to the applicants No. 1 & 2, which eventually came to be replied. As per the averments made in the complaint, she came to know that her brothers had distributed properties amongst themselves in pursuance a family arrangement mutually agreed upon by them, thereby debarring the complainant of her legitimate share in the said properties. Copy of the property card was drawn by the complainant from the office of the City Surveyor, Mansa. It appears from the record that the complainant was aged 67 years at the time of filing of the complaint. She got married in the year 1960; atleast before 49 years and she at that time, was residing with her husband and children at Ahmedabad. She remained silent for so many years, without asking for her legal share in the properties and this gesture on the part of the complainant certainly creates suspicion in respect of her now asking for share in the property; as alleged in the complaint. It appears that the applicant No. 1 got share in the property situated at Mumbai by a Will executed by her mother and the probate for which was obtained in the year 1975, with the consent and knowledge of the complainant i.e., the respondent No. 2 herein. It appears that the applicant No. 1 got share in the property situated at Mumbai by a Will executed by her mother and the probate for which was obtained in the year 1975, with the consent and knowledge of the complainant i.e., the respondent No. 2 herein. She was therefore aware about his brother getting share in the said property, however, it appears that just to pressurize the applicants, she has concocted a story and lodged a false complaint to harass the applicants. It also appears from the record and documentary evidence available that the respondent No. 2 had issued a legal notice on 7th July 2008 to the applicants No. 1 & 2 herein asking for her share from the joint property and also seeking accounts of the business being carried out, and share of income from the said business from the applicants. It is stated by the respondent No. 2 in her notice that since last five years, no amount was received by her as a share of profit from the business run by her brothers. This certainly means that she was getting regular profit from the income earned by her brothers. It transpires from the notice issued by the respondent No. 2 that she want to extract money from the applicants by alleging that they had misappropriated the joint property of her deceased father. It further transpires that a detailed reply was given by the applicants No. 1 & 2 to the complainant. However, she has tried to abuse the process of law by filing a criminal complaint against her real brothers and nephew. It culls out from the record that the respondent No. 2 has stated on oath in her deposition given before the Court below on 15th November 2008 stating that administration of properties situated at village Mansa was in the hands of her real brother Shri Jayantilal Chunilal Shah, who passed away subsequently, and thereafter, it is being managed by the applicants herein. She has also deposed before the Court that both the applicants No. 1 & 2 were making payment of income earned from the properties of her forefather regularly, but since last six months, her brothers have stopped making payment, which would clearly suggest that prior to six months of issuance of notice to the applicants No. 1 & 2 by the respondent No. 2 herein, she had no complaint or grievance or grudge against the present applicants; more particularly, applicants No. 1 & 2 herein. The averments made on oath before the Court below also suggests mala fide intention on the part of the respondent No. 2 to extract money from the applicants herein. The properties of her deceased father were distributed amongst all the brothers by a family arrangement during 1971 to 1975, and still however, the applicants No. 1 & 2 were making regular payment of income derived by them to all the sisters by way of affection. 10. Thus, prima facie, this Court is of the opinion that in the entire complaint, no allegation of breach of trust or misappropriation of funds, or even for that matter, forgery of the documents is made out by the complainant-the respondent No. 2 herein. Therefore, no criminal offence is made out by the respondent No. 2, calling for interference in exercise of powers vested under Section 482 Cr.P.C. It is appears that there may be a civil dispute pertaining to non payment of certain amount, which the respondent No. 2 was hitherto receiving from her brothers and came to be stopped since last six months, for which a notice was issued by her. Thus, in no case, a criminal proceeding shall lie for a civil dispute. Moreover, the legal notice issued by the respondent No. 2 is given in her individual capacity and not on behalf of her remaining sisters. Now, when she is aware that she is not entitled to any legal share; except which she received through a Will of her mother, she wanted to extract money from the applicants. 11. As admitted, father of the complainant passed away in the year 1948 and the Hindu Succession Act, 1956 came into force in the year 1956, therefore, as rightly relied upon by learned advocate Shri Dave appearing on behalf of the applicants, the decision of the Apex Court rendered in case of Eramma v. Veerupana & Ors. 11. As admitted, father of the complainant passed away in the year 1948 and the Hindu Succession Act, 1956 came into force in the year 1956, therefore, as rightly relied upon by learned advocate Shri Dave appearing on behalf of the applicants, the decision of the Apex Court rendered in case of Eramma v. Veerupana & Ors. [Supra] that the provisions of Section 8 of the Act are not retrospective in operation, where a male Hindu died before the Act came into force i.e., where the succession opened before the Act, section 8 will have not application. 12. Now, analyzing the facts-situation of the instant case on the touchstone of the guidelines issued by the Apex Court in the case of Mohammed Ibrahim & Ors. vs. State of Bihar & Anr., reported in [2009] 8 SCC 751, wherein it is held that disputes which essentially are civil in nature, filed as criminal complaints, it is the duty of the criminal courts to ensure that criminal proceedings are not misused for settling scores or pressurizing the parties to settle civil disputes. 13. Moreover, it is well settled that in order to constitute an offence of cheating, it must be shown that the accused had fraudulent or dishonest intention. Here, in response to a legal notice issued by the complainant, the applicants had already given a detailed reply. In the same manner, this Court is also of the view that no case of criminal breach of trust and cheating is born out from the plain reading of the complaint. Therefore, prima facie, examination of the documents available on the record satisfies this Court that the averments made in the complaint, if are assumed to be true, does not make any offence under Sections 406, 418, 420, 468, 471, 34 and 120B IPC. 14. In the result, this Criminal Misc. Application is allowed. The complaint made before the learned Judicial Magistrate, First Class, Mansa Court, District Mehsana against the applicants herein vide Criminal Case No. 1864 of 2008 for the offence punishable under Sections 406, 418, 420, 468, 471, 34 and 120B IPC is hereby ordered to be quashed. 15. Rule nisi made absolute. No costs.