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2019 DIGILAW 1182 (GUJ)

AVI Bhadreshbhai Shah v. State Of Gujarat

2019-12-23

UMESH A.TRIVEDI

body2019
ORDER : Perused the office note dated 20.12.2019. The returnable date as mentioned in paragraph 9 of the order dated 27.11.2019 shall read as “16th January, 2020” instead of “16th January, 2019”. Accordingly corrected paragraph no.9 shall read as under; “9. Hence, RULE returnable on 16th January, 2020. Mr. Mitesh Amin, learned Public Prosecutor waives service of notice of rule for and on behalf of the respondent – State. Mr. J.R. Dave, learned advocate waives service of notice of rule for and on behalf of respondent no.2 – first informant.” With this, the office note is allowed. Registry is directed to issue the corrected writ accordingly. ORDER : 27/11/2019 1. Heard the learned advocates for the appearing parties. 2. Mr. S.V. Raju, learned Senior Counsel assisted by Mr. Salim M. Saiyed, learned advocate for the applicants submitted that, prima­facie, no offence is made out under any sections mentioned in the FIR. For the purpose, he has pointed out that for the transaction of land in dispute which took place on 27.9.2010, which is produced along with the application at page No.20, is not disputed by any of the appearing parties, reflects that in all Rs.7,75,00,000/­ (Rupees Seven Crore Seventy Five Lakhs) paid to the Executant of the sale deed through cheques. He has further pointed out that so far as consideration amount, except Rs.1,75,00,000/­ (One Crore Seventy Five Lakhs), all paid through cheques, is not disputed by the first informant. It is further submitted that the payment received through cheques of total consideration is not only admitted in the conveyance deed i.e. sale deed itself dated 27.9.2010, over and above that, a receipt in writing of the consideration amount detailing cheque amount, cheque number and date of issue on the very same day, is executed by the executant of the sale deed. Not only that, the receipt of all consideration amount through different cheques is again admitted by an Indemnity Bond cum Declaration, executed again on that very day i.e. 27.9.2010. Therefore, according to his submissions, the first informant has come with the case that part consideration of Rs.1,75,00,000/­ (One Crore Seventy Five Lakhs) paid through 7 different cheques has not been received by the executant of the sale deed against 3 different documentary evidences available on record, duly signed and not disputed by the complainant or the witnesses. 3. Therefore, according to his submissions, the first informant has come with the case that part consideration of Rs.1,75,00,000/­ (One Crore Seventy Five Lakhs) paid through 7 different cheques has not been received by the executant of the sale deed against 3 different documentary evidences available on record, duly signed and not disputed by the complainant or the witnesses. 3. He has further submitted that the consideration was paid to the seller through cheques atleast two months prior to the execution of the sale deed. The cheques covering total consideration were issued on different dates. He has further submitted that, as reflected from the FIR, on 14.2.2011 the first informant received the notice from the Income Tax Department and pursuant thereto, the first informant inquired about the payment received through cheques. According to his submissions, though the cheques received, apart from disputed cheques, have been deposited with the Bank within a day or two of the date of issue of the cheques, no prudent persons will ever execute a sale deed without ascertaining whether the full consideration, as mentioned in the documents not only in one but three, are received or not? Still however, according to his submissions, for non­ receipt of the same for the first time grievance was raised in the month of May 2012. He has further submitted that i.e. again after about more than a year of receipt of the notice from the Income Tax Department, not only that, prior to making grievance to any Police Authority, as claimed by the first informant, a suit came to be filed being Civil Suit No.153 of 2012 on 2.3.2012. The copy of the plaint is annexed with the compilation at page No.68. 4. He has further submitted that the suit is filed for cancellation of sale deed as, it is executed without proper consideration and void ab initio making very same claim that out of the consideration amount mentioned in the sale deed, the plaintiffs have not received an amount of Rs.1,75,00,000/­. After considering the pleadings in the suit by the respective parties, the Court had rejected the Exhibit­5 application filed in that suit. Not only that, according to submissions of Mr. S.V. Raju, learned Senior Counsel, an Appeal from Order also came to be filed before this Court which was ultimately withdrawn by the first informant and witnesses. 5. After considering the pleadings in the suit by the respective parties, the Court had rejected the Exhibit­5 application filed in that suit. Not only that, according to submissions of Mr. S.V. Raju, learned Senior Counsel, an Appeal from Order also came to be filed before this Court which was ultimately withdrawn by the first informant and witnesses. 5. He has further submitted that the allegations levelled in the FIR are improbable and no prudent person will wait for pretty long time, if he has not received payment through cheque, though acknowledged in its three written documents till the notice of Income Tax Department is received. At the same time, if other cheques have been deposited, as acknowledged in the very same sale deed, within few days of the issue of the same, no prudent person would believe that the first informant came to be known about non­ receipt of so­called 7 cheques after receipt of the notice from the Income Tax Department. Not only that, for a pretty long time, even thereafter, no such complaint is filed, which speaks volume about the intention of the first informant. He has further submitted that whether the amount of consideration through cheques, as claimed in the FIR, is paid or not?, is a pure civil dispute, for which, Civil Court is to be approached and instead of that, the first informant has filed the FIR. He has further submitted that prior to the registration of this FIR, the first informant had also attempted to get some order but the learned Magistrate refused. According to him, challenging that order by way of revision, that too, without joining the persons shown to be the accused in that case in a revision, the revision application was allowed and the learned Magistrate was directed to decide it again. Pursuant thereto, the present FIR has come to be filed by way of order passed by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code”). Pursuant thereto, the present FIR has come to be filed by way of order passed by the learned Magistrate under Section 156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “Code”). He has further submitted that even the witness, who is one of the executant of the sale deed, who happens to be the son of the first informant, who claims to have not received the consideration amount of Rs.1,75,00,000/­, is not telling the truth, as could be revealed from the polygraphy test, as mentioned by the Deputy Superintendent of Police, P.R.C and Investigating Officer, C.I.D. Crime, Gujarat State, Gandhinagar to Chief Metropolitan Magistrate, Chief Metropolitan Court, Ghee­Kanta, Ahmedabad vide report dated 16.9.2017. Not only that, during the course of investigation when the first informant / witness was confronted with the receipt of Rs.75,00,000/­ on 3 different vouchers signed by the first informant, the payment of the same was to be admitted. However, then the first informant claimed that Rs.1,00,00,000/­ is still to be received. According to his submissions, filing of the complaint for a pure and simple civil transaction and investigation through Police Machinery is nothing but an arm twisting method and therefore, he requests for admission of it. 6. As against that, Mr. Mitesh Amin, learned Public Prosecutor as also Mr. J.R.Dave, learned advocate for respondent No.2 submitted that pursuant to the investigation as ordered, practically it is concluded. They have further submitted that pursuant to the order of this Court, a draft charge sheet was prepared and it is shown to the Court. Therefore, they have submitted that once the investigation has revealed that the amount covered by the cheques, which are claimed to have not been received by them, is withdrawn by the accused, no interference is called for. They have further submitted that investigation is the exclusive domain of the police and it should not be interfered at the threshold. They have further submitted that when, prima­facie, case is made out after the investigation progressed, these applications seeking quashing of the FIR should be rejected. 7. Mr. Dave, learned advocate for respondent No.2 in support of his submissions, cited certain decisions. However, at this stage, it is not required to be dealt with any further. 8. They have further submitted that when, prima­facie, case is made out after the investigation progressed, these applications seeking quashing of the FIR should be rejected. 7. Mr. Dave, learned advocate for respondent No.2 in support of his submissions, cited certain decisions. However, at this stage, it is not required to be dealt with any further. 8. Having considered the papers of investigation as also the submissions advanced by the learned advocates appearing for the parties, prima­facie, I am satisfied that dispute appears to be pure and simple civil in nature, for which, proper remedy would be the Civil Court subject to further probe in it. Prima­facie, no prudent person would forget to ascertain whether all the cheques, as mentioned in the sale deed, are received by the executant or not? Though majority of the cheques have been received and deposited in the accounts of respective first informants and the witnesses, it may never happen that without ascertaining actual receipt of the cheques, which are issued in their names, are not received by them or deposited in their Bank accounts. The first informants and witnesses are not that much illiterate as claimed in the FIR, when receipt of all the cheques admitted in 3 different documents executed by the first informant and witnesses. 9. Hence, RULE returnable on 16th January, 2019. Mr. Mitesh Amin, learned Public Prosecutor waives service of notice of rule for and on behalf of the respondent– State. Mr. J.R. Dave, learned advocate waives service of notice of rule for and on behalf of respondent No.2 – first informant. 10. Since at the time of issuing notice, this Court has passed an order that the investigation may proceed further but charge sheet shall not be filed without prior permission of the Court, I propose to continue that very order. Hence, further investigation into offence and filing of the charge sheet are hereby stayed till further orders. 11. In view of admission of main matter, the Criminal Misc. Application No.1 of 2019 in Criminal Misc. Application No.25108 of 2017 is disposed of.