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Gujarat High Court · body

2019 DIGILAW 105 (GUJ)

Babubhai Keshubhai Vadaliya v. State Of Gujarat

2019-02-07

A.S.SUPEHIA

body2019
JUDGMENT : 1. RULE. Learned Advocates appearing on behalf of the respective parties appear and waive service of notice of Rule. 2. The present writ application has been filed for quashing and setting aside the F.I.R. being C.R.No.123 of 2016 registered at Jahangirpura Police Station, Dist.Surat, for the offences punishable under Sections 406, 420, 447, 465, 467, 468, 471, 120B and 114 of the Indian Penal Code, 1860 (for short “the IPC”). 2.1 The captioned Criminal Misc. Application No.2 of 2018 has been filed for joining as parties in the main writ application, wherein they claim to be the victims and are opposing the settlement arrived at between the complainant and the writ petitioners. 3. The brief facts of the case are as under: 3.1 On 04.11.2016, the complainant-respondent No.2 has lodged the impugned F.I.R. being C.R.No.123 of 2016 at Jahangirpura Police Station, Dist. Surat against the petitioners. 3.2 It is the case of the complainant that the ancestral land bearing City Survey No.4, Block No.12 admeasuring 04042 Hec.AreSq. mtrs. situated at Village Variyav, Dist. Surat (new tenure land) is of the joint ownership which is in the possession of the complainant and her family members and they were looking after the same. It was alleged, that before one week from 03.02.2016, the accused Babubhai had illegally trespassed into the said land and prevented the complainant and her family members to enter on the said land. It is further alleged, that Narottambhai Patel had already died but his thumb impression marks were put and though Ratanben Dayalbhai used to thumb impression, her signature was put and the signatures and the thumb impression of the complainant and other family members were prepared by way of the documents (i) stamp paper purchased on 23.01.1990 pertaining to the possession receipt is passed; (ii) stamp paper purchased on 01.06.1990, which contains an agreement to sell; and (iii) stamp paper purchased on 21.12.1991, which contains the general power of attorney in favour of one Kantibhai Kalyanbhai Patel. It is thus, alleged that the thumb impressions of the complainant and other family members were put in the aforesaid documents by forging the same. It is thus, alleged that the thumb impressions of the complainant and other family members were put in the aforesaid documents by forging the same. 3.3 It is alleged, that the accused No.1 had informed the complainant that Kantibhai Kalyanbhai Patel has purchased the said land and thereafter sold the same to accused No.1 and a relinquishment deed dated 07.04.2005 of Ramiben Narottambhai Nathubhai was executed though she had passed away in the year 2004. It is alleged, that on the basis of the said forged and fabricated documents, accused No.1 had illegally tried to enter on the land in question. It is further alleged against accused No.2 Dilipbhai Nagarbhai Patel, that he has signed as a witness in some of the forged documents. 4. At the outset learned Advocate Ms.Kruti Shah for the petitioners submitted that the impugned F.I.R. is required to be quashed since the complainant and the petitioners have amicably settled the dispute. She also submitted that in absence of the original documents, which are alleged to have been forged, the petitioners cannot be allowed to be entangled in the trial proceedings. 4.1 Learned advocate further submitted that the impugned F.I.R. is nothing but an abuse of process of the court and the complainant has not come with the clean hands and suppressed the material facts that they had already sold out the land in question to one Ashokbhai Dhirubhai Akbari and in collusion with the said person, the complainant and family members instituted one collusive suit i.e. Special Civil Suit No.153 of 2015 in the Court of 12th Additional Senior Civil Judge, Surat and obtained a fraudulent decree in favour of Ashokbhai Dhirubhai Akbari, on the basis of an agreement to sale dated 29.05.2014. 4.2 Learned advocate Ms. Shah further submitted that the complainant is not at present the owner of the land in question and she has not disclosed the said fact while lodging the F.I.R. and it is a specific case of the petitioners that they are in possession of the land in question since years and with a view to frustrate the legal rights of applicant No.1, at the instigation of Ashokbhai Dhirubhai Akbari, the impugned F.I.R. has been lodged by the complainant and hence, the same may be quashed. 4.3 Learned advocate Ms.Shah also submitted that the petitioners were not at all aware about the socalled forged and fabricated documents referred by the complainant in the impugned F.I.R. and it seems that the complainant and her family members, in collusion with Ashokbhai Dhirubhai Akbari, had created the said documents with a view to bring pressure upon the petitioners to evict the land in question, of which they are in possession since years. 4.4 Learned advocate Ms.Shah further submitted that in the years 2003 and 2004 by executing the two documents by the complainant and her family members, applicant No.1 was given the general power of attorney and he was put into the possession of the land in question by the complainant and her family members and for the reasons best known to the complainant, she has referred the said documents which are notarized documents and the said documents were executed in presence of the advocate. She has submitted that due to escalation in prices of immovable properties, the original owners had again entered into a sale transaction with Ashokbhai Dhirubhai Akbari and obtained a collusive decree from the concerned court and in fact the complainant, her family members and Ashokbhai Dhirubhai Akbari are the accused in the said transactions and they have themselves created forged and fabricated documents and made false allegations against the petitioners. 4.5 Ms. Shah submitted that the petitioners are in legal possession of the land in question at present and as they have refused to hand over the possession to Ashokbhai Dhirubhai Akbari, after obtaining collusive decree from the civil Court, the F.I.R. has been lodged with absolutely false facts. Thus, she submitted that the impugned F.I.R. is required to be quashed. 4.6 Learned Advocate Ms.Shah also submitted that no offence of forgery is established against the petitioners since the basic ingredients of the definition of “forgery” as defined in sections 463 and 463 IPC are not satisfied in the present case, since the petitioners have not procured any property or there is no delivery of any property. In support of her submissions reliance is placed on the judgments of Supreme Court in the cases of Ashok Chaturvedi and others vs Shitul H Chanchani: AIR 1998 SC 2796 , Dr.S.Dutt vs State of U.P: AIR 1966 SC 523 and in the case of Sheila Sebastian vs R.Jawahraj reported in AIR 2018 SC 2434 . 5. In support of her submissions reliance is placed on the judgments of Supreme Court in the cases of Ashok Chaturvedi and others vs Shitul H Chanchani: AIR 1998 SC 2796 , Dr.S.Dutt vs State of U.P: AIR 1966 SC 523 and in the case of Sheila Sebastian vs R.Jawahraj reported in AIR 2018 SC 2434 . 5. Learned Advocate Mr.Pawan Barot appearing for the applicants of Criminal Misc. Applications No.1 and 2 of 2018 vehemently opposed the settlement arrived at between the petitioners and the complainant. He submitted that the applicants are the coshares of the ancestral land and have filed the application (for joining parties) since they are in fact the victims and the settlement has been arrived at behind their back and the same cannot be considered. Mr.Barot further submitted that the petitioners have committed forgery by preparing forged documents of their family members and has tried to take undue benefit of the same. Hence, it was submitted that the impugned F.I.R. may not be quashed on the ground of settlement. 6. Learned Additional Public Prosecutor Ms.Moxa Thakker appearing on behalf of the respondent-State submitted that prima facie the offence is established against the petitioners and hence, the impugned F.I.R. may not be quashed. She has further stated that the alleged documents appear to have been forged since the same bear the signatures of a dead person. It was submitted that there are serious allegations leveled against the petitioners and hence, the impugned F.I.R. may not be quashed on the ground of settlement. As regards the recovery of the original documents, the learned Additional Public Prosecutor submitted that the Investigation Officer has not been able to recover the same after the investigation. 7. I have given my thoughtful consideration to the submissions advanced by the learned advocates for the respective parties. The documents as pointed out by them are also perused. 8. As regards the recovery of the original documents, the learned Additional Public Prosecutor submitted that the Investigation Officer has not been able to recover the same after the investigation. 7. I have given my thoughtful consideration to the submissions advanced by the learned advocates for the respective parties. The documents as pointed out by them are also perused. 8. The established facts which emerge in the present case are as under: (a) The impugned F.I.R. has been lodged by respondent no.2 alleging that the antedated documents are created by the accused showing that they have purchased the land of Revenue Survey No.4, Block No.12, and on the basis of the same, accused No.1 had entered into the land on 03.02.2016 and had illegally trespassed thereon and prevented the complainant and her family members to enter on the land in question; (b) The investigation has revealed that there are 11 documents, which are purported to be forged, which bear the thumb impressions or signatures of the family members of the complainant. One of the family member, Narottambhai Patel has already expired before the date of execution of such documents. The documents pertain to the years 1990, 2003, 2004 and 2005; (c) One Shri Ashokbhai Dhirubhai Akbari had instituted Special Civil Suit No.153 of 2015 against the complainant and his family members including the applicants of Criminal Misc. Application No.2 of 2018 (for joining parties) viz. Jagdishbhai Haribhai Patel and Girishbhai Haribhai Patel, which was disposed of on the basis of settlement. It is not in dispute that the suit land was half of land of Block No.4, Revenue Survey No.4 of total area of 04043 Hec.AreSq. mtrs. All the family members including the complainant and the applicant cosharers, Jagdishbhai Patel and Haribhai Patel have arrived at a settlement with the plaintiff, and accordingly the suit was disposed of vide order dated 01.08.2015 passed by the Additional Senior Civil Judge, Surat; (d) Complainant Revaben Patel made an application dated 12.12.2016 to Police Commissioner, Surat, that the land bearing Revenue Survey No.4 having 04043 Hec.AreSq. mtrs. is the land of Surat City. mtrs. is the land of Surat City. The same land being Revenue Survey No.4, Block No.12 belongs to them and some brokers and criminals are trying to enter thereon forcefully; (e) In the statement dated 15.03.2016, recorded by the Investigation Officer, the complainant has stated that she was not allowed to enter on the land by the accused by showing the aforesaid forged documents. (f) In the statement dated 08.11.2016, recorded by the Investigation Officer, the witness Ashokbhai Dhirubhai Akbari (plaintiff of Special Civil Suit No.153 of 2015), has stated that he had purchased half of the land of Revenue Survey No.4, Block No.12, whereas the other half still belongs to the farmers; (g) The complainant Revaben Dayalbhai Nathubhai Patel has filed an affidavit dated 23.04.2018, wherein she has stated that she has settled the matter with the accused. It is stated that she has filed the complaint with misconception, hence, the same may be quashed; (h) The aforesaid settlement is opposed by the applicants of (Criminal Misc. Application No.2/2018) Jagdishbhai Patel and Haribhai Patel, who have also share in the land in question. It is canvassed that they are in fact the victims, and since the complainant was pursuing the entire controversy they had not filed any complaint against the accused. The stamp paper dated 23.01.1990, the agreement to sale dated 01.06.1990 and the general PoA dated 21.12.1991 bear the thumb impression of Kantibhai Kalyanbhai, who is made as witness. In his statements dated 19.04.2016 and 17.09.2016 made before the Investigation Officer, he has stated that he does not know the petitioners and he has not entered into any agreement to sale or has not executed any sale deed in the favour of the petitioners. He has denied the knowledge of such documents; 8.1 The conspectus of the aforenoted facts reveal that there are serious allegations of forging the documents against the accused. As per the chargesheet, there are 11 such documents, which are purported to be forged. The Apex Court in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur Vs. State of Gujarat, 2017 (9) S.C.C. 641 has refused to quash the F.I.R. leveling offences of forgery and fabrication of documents in relation to land on the basis of settlement. The Apex Court has observed that such allegations do not merely involve private or civil dispute but also implicate societal interest. State of Gujarat, 2017 (9) S.C.C. 641 has refused to quash the F.I.R. leveling offences of forgery and fabrication of documents in relation to land on the basis of settlement. The Apex Court has observed that such allegations do not merely involve private or civil dispute but also implicate societal interest. Hence, the impugned F.I.R. cannot be set aside on the ground of settlement. Significantly, in the present case, the other cosharers have objected to the settlement. Admittedly, the land is an ancestral property and hence, the complainant cannot settle the matter with the petitioners behind the back of such cosharers. 9. It was contended by Ms. Shah, learned advocate for the petitioners that the petitioners have not committed any offence punishable under Section 465 of the IPC since the ingredients of “forgery” are not satisfied in the present case. Section 463 of the IPC defines “forgery” which reads as under: “463 : Forgery - Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or Injury], to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.” 9.1 Section 464 of the IPC stipulates “making of false documents” which read as under: “464. Making a false document.-A person is said to make a false document or false electronic record - 8 first.-Who dishonestly or fraudulently- (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any electronic signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly.-Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.-Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration. 9. Explanation 1.-A man’s signature of his own name may amount to forgery. Explanation 2.-The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. Explanation 3.-For the purposes of this section, the expression “affixing electronic signature” shall have the meaning assigned to it in clause (d) of subsection (1) of section 2 of the Information Technology Act, 2000.” 10. At this juncture it would be apposite to refer to the observations made by the Apex Court in the case of Sheila Sebastian (supra). Explanation 3.-For the purposes of this section, the expression “affixing electronic signature” shall have the meaning assigned to it in clause (d) of subsection (1) of section 2 of the Information Technology Act, 2000.” 10. At this juncture it would be apposite to refer to the observations made by the Apex Court in the case of Sheila Sebastian (supra). The Apex Court in its laudable decision, after survey of its earlier judgment interpreting the provisions of section 463 and 464, has observed thus: “A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463, IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and untill ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete. 20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that “to make”, in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it. 21. It is observed in the case Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 that “a person is said to have made a `false document', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.” 22. In Md. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences, this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant. 23. The Court in Md. Ibrahim (supra) observed that: “There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.” 24 In Mir Nagvi Askari vs. Central Bureau of Investigation, (2009) 15 SCC 643 , this Court, after analysing the facts of that case, came to observe as follows: “A person is said to make a false document or record if he satisfies one of the three conditions as noticed hereinbefore and provided for under the said section. The first condition being that the document has been falsified with the intention of causing it to be believed that such document has been made by a person, by whom the person falsifying the document knows that it was not made. Clearly the documents in question in the present case, even if it be assumed to have been made dishonestly or fraudulently, had not been made with the intention of causing it to be believed that they were made by or under the authority of someone else. The second criteria of the section deals with a case where a person without lawful authority alters a document after it has been made. There has been no allegation of alteration of the voucher in question after they have been made. Therefore, in our opinion the second criteria of the said section is also not applicable to the present case. The third and final condition of Section 464 deals with a document, signed by a person who due to his mental capacity does not know the contents of the documents which were made i.e. because of intoxication or unsoundness of mind, etc. Such is also not the case before us. Indisputably therefore the accused before us could not have been convicted with the making of a false document. 25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. 25. Keeping in view the strict interpretation of penal statute i.e., referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery. 26. The definition of “false document” is a part of the definition of “forgery”. Both must be read together. 'Forgery' and 'Fraud' are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts. In the case in hand, there is no finding recorded by the trial Court that the respondents have made any false document or part of the document/record to execute mortgage deed under the guise of that 'false document'. Hence, neither respondent no.1 nor respondent no.2 can be held as makers of the forged documents. It is the imposter who can be said to have made the false document by committing forgery. In such an event the trial court as well as appellate court misguided themselves by convicting the accused. Therefore, the High Court has rightly acquitted the accused based on the settled legal position and we find no reason to interfere with the same.” 11. In the present case, the charge of forgery is imposed on the petitioners by alleging that they are the makers of the documents and the same bear the thumb impressions of a dead person and the signatures of the cosharer of the land who has refused the acquaintance with the petitioners. The petitioners are claiming the ownership of the land on the basis of such documents. It is contended by the petitioners that the complainant has not disclosed that they are not the real owners of the land and the real owner is Ashokbhai Akbari with whom they have settled the civil suit no.153/2015. The petitioners are claiming the ownership of the land on the basis of such documents. It is contended by the petitioners that the complainant has not disclosed that they are not the real owners of the land and the real owner is Ashokbhai Akbari with whom they have settled the civil suit no.153/2015. It is pertinent to note that the complainant and the applicants cosharers have entered in to an agreement for half of the share of the land of S.No.4, and they still are the owners of the rest of the land. Prima facie it appears that the petitioners have tried to create the right on the land which still belongs to the complainant and the family members who are still in possession. The Supreme Court in the aforenoted judgment has referred to the decision in the case of Md.Ibrahim and ors vs State of Bihar (2009) 8 SCC 751 where in it held that “a person is said to have made a false documents, if he made or executed a document claiming to be someone else or authorized by someone else. In the present case it is alleged in the FIR that the petitioner are dishonestly or fraudulently claiming the ancestral property on the basis of the forged documents purported to be entered in their favor by the complainant and her family member even though they know that the it is not their property. The Supreme Court has further held that as Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery. Explanation 2 further stipulates about making a document in the name of deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery. In the present case it is specifically alleged that the petitioners are the makers of the false documents and prima facie the investigation also implicates the petitioners for the alleged commission of making the false documents. 12. In the present case it is specifically alleged that the petitioners are the makers of the false documents and prima facie the investigation also implicates the petitioners for the alleged commission of making the false documents. 12. After threadbare analysis of the provisions of Sections 463 and 464 of the IPC, the Apex Court has observed that the “forgery” and “fraud” are essentially matters of evidence, which could be proved by direct evidence or by inferences drawn from the proved facts. Thus, even if, the original documents are not available then also offence of “forgery” can be proved by the inferences drawn from the proved facts during the trial proceedings. It is the petitioners who have placed reliance on such documents for claiming the ownership of the land. 13. This Court while exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure, 1973 cannot quash the FIR by examining the evidence as an investigating agency. If the F.I.R. discloses prima facie cognizable offence, the High Court cannot appreciate evidence nor could draw the inferences from the contents of the F.I.R. and the material relied upon in the investigation. (vide Dineshbhai Chandubhai Patel vs State of Gujarat, 2018 (3) S.C.C. 104 . 14. On the bedrock of the aforenoted analysis and observations, this Court is of the considered opinion, that the impugned F.I.R. does not call for any interference of this Court. 15. Resultantly, the present writ application stands dismissed. As a consequence, the connected applications also stand disposed of. It is however, clarified that the observations made by this Court shall not affect any civil proceedings between the parties. RULE is discharged.