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2019 DIGILAW 2324 (BOM)

Oswald Clifford Moraes v. State of Goa

2019-10-10

C.V.BHADANG, NUTAN D.SARDESSAI

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JUDGMENT : C.V. Bhadang, J. 1. By this petition, under Article 226 of the Constitution of India, read with Section 482 of Code of Criminal Procedure (Code, for short), the petitioners are seeking quashing of FIR no. 342/17 dated 13.10.2017 registered against them, with P.S. Mapusa, under Sections 406, 465, 468, 471 and 420 read with Section 34 of the Indian Penal Code (IPC, for short). The aforesaid FIR has been registered, on the basis of the complaint, lodged by the second respondent on 25.07.2017. According to the second respondent, the petitioners in furtherance of their common intention, dishonestly induced her to develop her property bearing survey no. 2/5A of Village Nachinola, Bardez, Goa, and during the development of the said property, made certain changes in the Deed of Rectification dated 21.04.1989 fraudulently obtaining her signature on the Deed of Sale and thereby committed breach of trust and also forged her finger print impression on the Sale Deed and produced the same as genuine before the Sub-Registrar for registration. 2. It is a matter of record that the second respondent along with her brother Mr. Antonio D'Cruz and his wife Mrs. Sebastiana D' Cruz have filed Special Civil Suit No. 24/2017/A against the petitioner no. 1, for specific performance, damages and other consequential reliefs. The case made out by the second respondent in the said suit is that there was an oral agreement between the parties for development of the aforesaid property and by way of consideration, the petitioner no. 1 (the defendant in the said suit) had promised to handover two residential flats admeasuring 49 square metres each, having an independent balcony of 60 square metres each. It is contended that the said condition has been specifically mentioned in the Deed of Sale which was executed by the parties on 15.07.2014 before the Sub-Registrar of Bardez at Mapusa. It is contended that the petitioner no. 1 through the assistance of the second respondent and the other plaintiffs, has secured all the development permissions in her name and, accordingly, a residential complex consisting of 12 flats has been constructed in the suit property pursuant to the construction licence granted by the Village Panchayat of Nachinola, on the basis of a technical clearance granted by the Town and Country Planning Department. It also appears that the second respondent and the other plaintiffs have handed over the original title deeds of the property to the petitioner no. 1. This was purportedly on the belief that the petitioner no. 1 would pay the consideration in the form of transfer of two flats as aforesaid. 3. It is the further case made out in the plaint that on 01.02.2017, the second respondent learnt that the petitioner no. 1 has created third party rights in respect of some of the residential flats. It is contended that even after the execution of the Deed of Sale dated 15.07.2014, the copy of the said document was never handed over to the second respondent and when an oral demand to that effect was made, it was represented that the Sale Deed has been lodged with financial institutions and statutory authorities for getting financial assistance and sanctions. 4. However, subsequently the second respondent claims to have lost faith in the petitioner no. 1 which led to the filing of the suit for specific performance against the petitioner no. 1 on 14.03.2017. The said suit is pending on the file of the learned Senior Civil Judge at Mapusa. The second respondent and the other plaintiffs have, inter alia, prayed for a decree directing the petitioner no. 1 to hand over possession of the disputed flats as aforesaid and compensation of Rs. 10,00,000/- for delay in handing over possession of the said flats. 5. The petitioner no. 1 has filed a written statement resisting the suit and has raised a counter claim for recovery of Rs. 58,17,600/- along with interest. 6. It is contended that there was deviation in the plan of the two flats as a result of which the area of the suit flats was increased and certain additional work was required to be undertaken by the petitioner no. 1. It is contended that the second respondent no. 1 signed the necessary applications for getting approvals to such deviation from the statutory authorities and the additional costs for such work was fixed at Rs. 29,08,800/- which the second respondent had agreed to pay, however has failed to pay the same. 7. The record further discloses that there is an affidavit dated 15.07.2014 sworn by the second respondent claiming that she is the Power of Attorney holder of her brother Mr. Antonio D'Cruz and his wife Mrs. 29,08,800/- which the second respondent had agreed to pay, however has failed to pay the same. 7. The record further discloses that there is an affidavit dated 15.07.2014 sworn by the second respondent claiming that she is the Power of Attorney holder of her brother Mr. Antonio D'Cruz and his wife Mrs. Sebastiana D' Cruz which was executed on 18.05.2005 before the Notary Public and the said Power of Attorney has not been revoked. In the affidavit, the second respondent specifically recites that Mr. Antonio and Mrs. Sebastiana D' Cruz have authorised her to execute the Deed of Sale on their behalf in respect of survey no. 2/5A of Village Nachinola, Bardez, Goa. There is no challenge to this Power of Attorney at any point of time by the second respondent. 8. Be that as it may, subsequently the complaint dated 25.07.2017 has been filed claiming that she remained present before the Sub-Registrar on 15.07.2014 only to make certain changes in the Deed of Rectification dated 21.04.1989. The petitioner no. 1 insisted her to quickly sign all pages. In short, now it is claimed by the second respondent that there was no conscious execution of the Deed of Sale. 9. We have heard Mr. Mulgaonkar, the learned Counsel for the petitioners, Mr. Rivankar, the learned Public Prosecutor for the first respondent and Mr. Menezes, the learned Counsel for the second respondent. With the assistance of the learned Counsel for the parties, we have gone through the record. 10. It is submitted by Mr. Mulgaonkar, the learned Counsel for the petitioners, that the petitioners having filed Special Civil Suit seeking specific performance of the covenant in the Sale Deed dated 15.07.2014, cannot now turn around and claim that there was no conscious execution or there was any fraud practiced or the signatures or the finger prints were forged. The learned Counsel has taken us through the recitals in the plaint, the written statement to the counter claim and complaint dated 25.07.2017 in order to submit that they are contradictory to each other. It is submitted that the dispute is purely of a civil nature which is tried to be converted into a criminal one. 11. The learned Counsel has placed reliance on the decision of the Supreme Court in the case of State of Haryana & Ors. vs. Bhajan Lal & Ors. It is submitted that the dispute is purely of a civil nature which is tried to be converted into a criminal one. 11. The learned Counsel has placed reliance on the decision of the Supreme Court in the case of State of Haryana & Ors. vs. Bhajan Lal & Ors. 1992 Supp (1) SCC 335, Prashant Bharti vs. State (NCT of Delhi) (2013) 9 SCC 293 and Rukmini Narvekar vs. Vijaya Satardekar & Ors. (2008) 14 SCC 1 , in order to submit that a clear case for quashing of the FIR is made out. It is submitted that it is not an absolute rule that under no circumstances can the Court look into the material in defence and, in a given case, the High Court can quash an FIR/prosecution, by relying on defence material. 12. The learned Public Prosecutor has supported the petitioners. It is submitted that the dispute indeed appears to be of a civil nature which is sought to be converted into a criminal one. 13. Mr. Menezes, the learned Counsel for the second respondent has submitted that there are elements of fraud being practised as well as breach of trust and forging of the signature/finger prints in this case. It is submitted that the second respondent when visited the office of the Sub-Registrar on 15.07.2014, was made to believe that certain changes are to be made to the Deed of Rectification dated 21.04.1989 and the petitioner no. 1 hurriedly obtained signatures of the second respondent on the document, which subsequently transpired to be a Sale Deed. It is submitted that at this stage, the genuineness of the allegations cannot be examined and, therefore, this Court may permit the investigation to proceed. 14. We have considered the rival circumstances and the submissions made and we find that indeed in this case, a dispute which is essentially of a civil nature is tried to be converted into a criminal one. It is a matter of record that the second respondent along with her brother and sister-in-law has instituted Special Civil Suit No. 24/2017/A against the petitioners for specific performance, damages and for other consequential relief’s. The case made out in the plaint clearly discloses that according to the second respondent, there was an oral agreement between the parties pursuant to which a Deed of Sale dated 15.07.2014 was executed. The Sale Deed shows the consideration in the form of two flats admeasuring 49 square metres each with an independent balcony of 60 square metres each to be handed over to the respondent no. 2. On the strength of the agreement, various permissions/licences have been obtained and admittedly a residential complex consisting of 12 flats has been constructed in the suit property. The dispute essentially appears to be about some modifications/deviations made in the said flat which, according to the petitioner no. 1, were made subject to payment of an additional amount of Rs. 29,08,800/-. 15. The learned Counsel for the petitioners submitted that the petitioners are ready to transfer the said flats as agreed subject to the payment of the said amount for which a counter claim has been raised by the petitioner no. 1 in the aforesaid suit. It is further a matter of record that the second respondent happens to be the Power of Attorney holder of her brother Mr. Antonio D'Cruz and sister-in-law Mrs. Sebastiana D'Cruz. The Power of Attorney has been executed on 18.05.2005 in support of which the second respondent has sworn an affidavit on 15.07.2014 in which the second respondent claims that the Power of Attorney was executed to authorise her to execute a Sale Deed of the property which is subject matter of dispute. Thus, we are of the considered view that this is a case which is purely or at any rate predominantly of a civil nature. 16. The Supreme Court in the case of Rajiv Thapar vs. Madan Lal Kapoor, (2013) 3 SCC 330 has set out various steps while considering a prayer for quashing of an FIR/Prosecution in para 30 of the judgment, which reads thus: "(i) 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? (ii) 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. (iii) 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? (iv) 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?" 17. We find that the material relied by the petitioners is reasonable as it is in the form of case made out by the second respondent herself in Special Civil suit No. 24/2017/A which cannot be refuted. In fact the learned Public Prosecutor has not even made an attempt to refute the same. We find that the said material is sufficient to reject and overrule the assertions contained, therein and the investigation or the trial, in pursuance of the said complaint, would result in the abuse of the process of the Court and would not serve the ends of justice. 18. We are conscious of the fact that the power to quash an FIR/prosecution has to be sparingly exercised and in a given case, the same set of facts and circumstances, can give rise both to a dispute which may be of civil nature as well as which will have criminal overtones, for instance where there is an incident of assault that erupts in pursuance of a civil dispute. However, in the present case the dispute appears to be purely of a civil nature without any criminal element. For the reasons aforesaid, the petition is allowed. Rule is made absolute in terms of prayer clause (a)