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2019 DIGILAW 83 (GUJ)

Bhogilal Jamnadas Kansara v. State of Gujarat

2019-01-31

A.S.SUPEHIA

body2019
JUDGMENT : A.S. SUPEHIA, J. 1. By way of the present petitions, the petitioners seek quashing of Criminal Complaint registered as Inquiry Case No. 3 of 2015 before Additional Chief Metropolitan Magistrate, Court No. 12, Ahmedabad, for the offences punishable under sections 484, 467, 468, 471 and 114 of the Indian Penal Code, 1860 (IPC). 2. The facts of the case, as stated in Special Criminal Application No. 1481 of 2015, are as under: 2.1 The agricultural land bearing Block Nos. 130 and 142 was of the ownership of the father of the petitioners i.e. original accused Nos.1 to 10. On 16.03.1984, Entry No. 4182, mutated on 13.01.1984 in favour of the petitioners, was certified by the Circle Inspector of Village Gatrad in the revenue record after following the procedure under the provisions of the Gujarat Land Revenue Code, 1879 (“the GLRC” for short). On 08.02.1984, agricultural land bearing Revenue Survey Nos. 588/1 and 589 purchased by the petitioners from respondent No. 3 and father of respondents No. 4, 5 and 6 by way of two registered sale deeds bearing No. 3491 and 3492 and thereafter, Entry Nos.3183 and 3184 came to be mutated in the revenue record and were certified in favour of the petitioners. 2.2 In the year 2002, RTS proceedings were initiated by respondents No. 3 to 6 being RTS Appeal No. 67 of 2002 before the Deputy Collector challenging the aforesaid Entry Nos. 3183 and 3184, which came to be dismissed vide order dated 28.07.2003. Against the dismissal order, Revision Application No. 66 of 2003 was filed by respondents No. 3 to 6 before the District Collector, which came to be dismissed vide order dated 31.08.2004. 2.3 Thereafter, on 17.8.2003 a Power of Attorney (PoA) was given by the entire Patel family, including the complainants, in favour of one Mohit Parshottam Patel. 2.4 In the year 2003, tenancy proceedings were initiated by the respondents No. 3 to 6 before the Mamlatdar and ALT under section 84C of the Gujarat Tenancy and Agricultural Lands Act, 1948 (the Tenancy Act) against the petitioners, wherein by the order dated 27.10.2004 the Mamlatdar and ALT held that there is breach of section 63 of the Tenancy Act committed by the petitioners. Against the aforesaid order, the petitioners preferred Tenancy Appeal No. 96 of 2004, whereas Tenancy Appeal No. 105 of 2004 was filed by the aforesaid PoA before the Deputy Collector. However, by the common order dated 18.03.2005, both the aforesaid appeals came to be dismissed. 2.5 In the meantime, Regular Civil Suit No. 83 of 2004 was instituted by the PoA before the Court of Civil Judge (Senior Division), Ahmedabad (Rural), wherein injunction application below Exh.5 came to be dismissed vide order dated 30.04.2005. 2.6 The PoA filed Criminal Case No. 6998 of 2004 against the father of the petitioners, which came to be withdrawn vide order dated 01.07.2006. 2.7 Against the aforesaid dismissal order dated 18.03.2015 of the Deputy Collector, the PoA filed Revision Application No. 237 of 2005 before the Gujarat Revenue Tribunal (GRT), which came to be dismissed by the order dated 21.09.2005, whereas the petitioners filed Revision Application No. 40 of 2007 before the GRT, which came to be allowed vide order dated 08.04.2008 and thereby the proceedings under Section 84C of the Tenancy Act were dropped. 2.8 In the year 2008, the PoA challenged the aforesaid order of the GRT passed in Revision Application No. 40 of 2007 in favour of the petitioners before this court by filing Special Civil Application No. 7623 of 2008, which came to be dismissed vide order dated 07.07.2008. 2.9 In spite of the withdrawal of the earlier criminal complaint by the PoA, a second criminal complaint was filed by one of the family members of respondents No. 3 to 6 against petitioner No. 1 alleging commission of offences under sections 406, 420, 467, 468 of the IPC as well as under section 7, 12 and 13 of the Prevention of Corruption Act. Against the aforesaid criminal complaint, Special Criminal Application No. 1746 of 2009 has been filed, wherein, initially, vide order dated 04.09.2009 this court granted interim relief in favour of the petitioner therein i.e. Bhogilal Jamnadas Kansara (petitioner No. 1 herein). Ultimately, on the basis of the compromise arrived at between the parties, vide order dated 24.02.2010 the said petition was finally disposed of by this court. Ultimately, on the basis of the compromise arrived at between the parties, vide order dated 24.02.2010 the said petition was finally disposed of by this court. 2.10 Thereafter, the third complaint i.e. the impugned criminal complaint, mentioned in Paragraph No. 1 hereto, has been filed by the family members of respondents No. 3 to 6 alleging commission of the offences under sections 484, 467, 468 and 471 of the IPC. Original accused Nos. 1 to 10 have filed the captioned Special Criminal Application No. 1481 of 2015 challenging the impugned complaint before this court, wherein vide order dated 25.03.2015 this court has issued rule and granted stay of further proceedings. 2.11 The captioned Special Criminal Application No. 1513 of 2018 has been filed by accused Nos. 10 and 11, who are the subsequent purchasers of the land by way of a registered sale deed from the petitioners of Special Criminal Application No. 1481 of 2015, wherein also this court, vide order dated 30.03.2015 has issued rule and granted stay of further proceedings. 3. Learned Senior Counsel Mr. Shalin Mehta for learned Advocate Mr.Asit Joshi for the petitioners has submitted that from the perusal of the events and the proceedings, it is manifest that the complainants and their family members having availed the remedy under the provisions of the GLRC and also before the competent civil court and having failed upto this court, wherein it is held by this court that the complainants and their family members have no locus-standi whatsoever to raise any dispute with regard to the subject land, the complainants have now adopted to pressurize the petitioners by abusing the process of court under the guise of filing vexatious and false complaint under the provisions of the Code of Civil Procedure, 1908 (the Cr.P.C.). 3.1 Learned Senior Counsel further submitted that the impugned complaint is also liable to be quashed and set aside inasmuch as that earlier Mohit Parshottam Patel, who is cousin brother of the complainants and his also the PoA, had filed a criminal complaint for the same sale deed transaction against the petitioners, however, the same was subsequently withdrawn. 3.1 Learned Senior Counsel further submitted that the impugned complaint is also liable to be quashed and set aside inasmuch as that earlier Mohit Parshottam Patel, who is cousin brother of the complainants and his also the PoA, had filed a criminal complaint for the same sale deed transaction against the petitioners, however, the same was subsequently withdrawn. 3.2 Learned Senior Counsel also submitted that from the chronology of the proceedings initiated by the complainants and his family members, it is apparent that the impugned criminal complaint is used as an instrument of harassment and pressurize the petitioners for seeking relief, which is otherwise rejected by this court. In support of his submissions, reliance is placed on the judgment rendered by the Apex Court in the case of Inder Mohan Goswami and Others vs. State of Uttaranchal and Others, 2008 (1) GLH 603 , wherein it has been observed that the court must see that the criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or to pressurize the accused. The Apex Court has also observed that the High Court has inherent power to do real and substantial justice for the administration of which it exists or to prevent abuse of the process of the court. It was submitted that considering the settled legal position, the impugned complaint is liable to be quashed. 3.3 Learned Senior Counsel submitted that the allegations made in the impugned complaint, even if they are taken at its face value and accepted in their entirety, it does not prima facie constitute any offence or make out a case against the petitioners, in that circumstances this court is empowered to exercise its inherent powers under section 482 of the Cr.P.C. to prevent the abuse of process of court. It was submitted that the Apex Court in the case of State of Haryana vs. Bhajanlal, 1992 Supp. It was submitted that the Apex Court in the case of State of Haryana vs. Bhajanlal, 1992 Supp. (1) SCC 335 has observed that where the allegations made in the F.I.R. or the complaint, even if they are taken at its face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, in that circumstances the High Court is empowered to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India or the inherent powers under section 482 of the Cr.P.C. to prevent the abuse of the process of the court or otherwise to secure the ends of justice. 3.4 Learned Senior Counsel also submitted that from perusal of the complaint and considering the orders passed by this court, it is crystal clear that the ingredients for invoking sections 467, 468 and 471 of the IPC cannot be attributed to the petitioners. It was submitted that even no charge can be attributed to the petitioners under section 114 of the IPC. Thus, it was submitted that it is clear that no case is made out by the complainants in the complaint so as to attract the offence, as alleged in the complaint and, therefore, the same is liable to be quashed. 3.5 Lastly, the learned Senior Counsel also submitted that the impugned complaint is filed after delay of more than 32 years that too after having failed before the revenue authorities and civil court and, therefore, the same is nothing but a pressure tactics by the complainants to grab the lawful possession and ownership of the subject land and, therefore, it was urged that the impugned complaint as well as all subsequent proceedings thereof deserve to be quashed. 4. Per contra learned advocate Mr. Asim Pandya for the respondent nos.2 to 6 has submitted that the petitioners have defeated the constitutional provisions by submitting the forged documents establishing themselves as agriculturist and thereafter selling the same. He has submitted that the entire government machinery has colluded with the petitioners and various agricultural lands are sold by the petitioners. He has submitted that the writ petition is premature as the Magistrate has not issued the process and the same has not reached at the stage of trial, hence at this stage, the impugned complaint may not be quashed. He has submitted that the writ petition is premature as the Magistrate has not issued the process and the same has not reached at the stage of trial, hence at this stage, the impugned complaint may not be quashed. 4.1 Apropos the contention of delay in filing the complaint, learned advocate for the complainants submitted that the same does not wipe out the offence in view of the provisions of section 468 of the IPC. Learned advocate further submitted that after 2012, there was a fresh cause of action. It was also submitted that the State Exchequer has also suffered due to the action of the petitioners as the land vested with the government. 5. I have given my thoughtful consideration to the submissions advanced by the learned advocates appearing for the respective parties. The documents produced on record are also perused. 6. It is not in dispute that there are various proceedings initiated by the complainant against the present petitioners for the agricultural land bearing Revenue Survey Nos.588/1 and 589. The first proceedings were RTS proceedings filed by the respondents no. 3 to 6 in the year 2002, which culminated against them in the year 2004. The second proceedings were initiated under the Tenancy Law under section 84C of the Tenancy Act in the year 2003, which ultimately ended in favour of the petitioners vide order dated 07.07.2008 passed by this Court in Special Civil Application No. 7623 of 2008 filed by the PoA holder of respondents no. 3 to 6. This Court dismissed the writ petition and confirmed the order of the GRT in Revision Application No. 40 of 2007, which was in favour of the petitioners. Thereafter, Regular Civil suit No. 83 of 2004 was instituted by the PoA before Court of Civil Judge (Senior Division), Ahmedabad (Rural), wherein injunction application below Exh.5 came to be dismissed vide order dated 30.04.2005. 7. During the pendency of the aforesaid proceedings, the PoA holder of the family of respondents no. 3 to 6 filed Criminal Case No. 6998 of 2004 against the father of the petitioners, which was withdrawn on 01.07.2006. Again the second complaint was filed by one of the family members against petitioner no. 1 alleging the commission of offence punishable under sections 406, 420, 467, 468 of the IPC, which was challenged by filing Special Criminal Application No. 1746 of 2009. Again the second complaint was filed by one of the family members against petitioner no. 1 alleging the commission of offence punishable under sections 406, 420, 467, 468 of the IPC, which was challenged by filing Special Criminal Application No. 1746 of 2009. The same was disposed of in view of the compromise arrived at between the parties. 8. After all the aforementioned exhaustive proceedings, the third complaint i.e. the impugned criminal complaint is filed alleging the commission of offences punishable under sections 484, 467, 468, 471 of the IPC. It is pertinent to note that the subsequent purchasers are also roped in the complaint, who are the petitioners of Special Criminal Application No. 1513 of 2015. 9. From the conspectus of the aforenoted proceedings it can be safely presumed that the complainants have persecuted the petitioners by resorting to all the proceedings available under the land laws and also by filing criminal complaints in relation to the agricultural land bearing Revenue Survey Nos. 588/1 and 589. I may with profit refer to the observations made by the Apex Court in the case of Paramjeet Batra vs. State of Uttarakhand, 2013 (11) SCC 673 : “6. Though the complaint attributes forgery and fabrication of documents to the appellant and other accused and states that the appellant has grabbed the profit of the running business and threatened respondent 2, it appears to us to be essentially a civil dispute. Basic grievance of respondent 2 is that the appellant has not given him accounts of the business. Respondent 2 has made a reference to the written agreement under which the appellant was appointed as Manager to manage his business. The appellant has annexed a copy of the agreement dated 1.1.2002 to the appeal. The agreement discloses that the appellant was to receive 25% of the net profit as salary. The agreement also notes that the appellant received Rs. 10,000/- in cash for the purchase of raw materials. Admittedly, the appellant has filed Civil Suit No. 23/2002 against respondent 2 in the court of Civil Judge, (Jr. Div.) Khatima for permanent injunction claiming that he is a tenant of the shop in question. In that suit, he filed an application for temporary injunction. Copy of order dated 22.12.2004 passed on that application ordering status quo is also annexed to the appeal. Div.) Khatima for permanent injunction claiming that he is a tenant of the shop in question. In that suit, he filed an application for temporary injunction. Copy of order dated 22.12.2004 passed on that application ordering status quo is also annexed to the appeal. The order indicates that the appellant and respondent 2 have filed documents in the said suit. While granting status quo order, the trial court has observed that the said documents will have to be proved by the appellant and respondent 2 and, hence, it is necessary to maintain status quo during pendency of the suit. In the complaint, it is the case of respondent 2 that this suit has been filed on the basis of fabricated documents. It is categorically stated on affidavit by the appellant that the said suit is still pending. If the said suit is still pending, then the grievance made by respondent 2 that the documents on which reliance is placed by the appellant are not genuine and are forged and fabricated, will be considered by the Civil Court. It is also significant to note that prior to the filing of this complaint, respondent 2 tried to lodge an FIR against the appellant by moving an application under Section 156(3) of the Code. But the said application was dismissed on 6.5.2004. We notice from the impugned order that a separate case under Section 406 of the IPC was filed by respondent 2 against the appellant in which the appellant was acquitted on 9.2.2009. It is further significant to note that statement was made on behalf of the appellant before the High Court that the appellant has vacated the shop in question and handed over possession to respondent 2. In the peculiar facts of the case, therefore, we are of the opinion that in the interest of justice, the pending criminal proceedings need to be quashed. We have taken serious note of the fact that respondent 2 did not appear before the High Court to refute the case of the appellant. He has also not chosen to appear before us though served. Probably because the possession of the shop is handed over to him, he is not interested in prosecuting the appellant and others. 7. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. He has also not chosen to appear before us though served. Probably because the possession of the shop is handed over to him, he is not interested in prosecuting the appellant and others. 7. While exercising its jurisdiction under Section 482 of the Code the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash criminal proceedings to prevent abuse of process of court. 8. As we have already noted, here the dispute is essentially about the profit of the hotel business and its ownership. The pending civil suit will take care of all those issues. The allegation that forged and fabricated documents are used by the appellant can also be dealt with in the said suit. Respondent 2's attempt to file similar complaint against the appellant having failed, he has filed the present complaint.” The aforesaid observations made by the Supreme Court enunciates that the High Court should not hesitate to quash the criminal proceedings to prevent the abuse of process of court if a civil dispute is cloaked with criminal offence and the civil transactions have a criminal texture. In the present case Regular Civil Suit No. 83 of 2004 has been instituted before the Court of Civil Judge (Senior Division), Ahmedabad (Rural), which is still pending. Hence, the impugned complaint is liable to be quashed and set aside. 10. It is not in dispute that the first proceedings were initiated by respondent nos. 3 to 6 in RTS Appeal No. 67 of 2002 before the Deputy Collector challenging Entry Nos.3491 and 3492 mutated in the year 1984 for the agricultural land bearing Revenue Survey Nos. 588/1 and 589. 10. It is not in dispute that the first proceedings were initiated by respondent nos. 3 to 6 in RTS Appeal No. 67 of 2002 before the Deputy Collector challenging Entry Nos.3491 and 3492 mutated in the year 1984 for the agricultural land bearing Revenue Survey Nos. 588/1 and 589. The impugned complaint has been filed in the year 2015. At this juncture, it would be apposite to refer to the decision of the Supreme Court in the case of Kishan Singh (decd.) through LRs. vs. Gurpal Singh, 2010 (8) SCC 775 : “20. In view of the above, the Judgment and order of the High Court dated 13.02.2009 is not sustainable in the eyes of law and is liable to be set aside. However, the facts and circumstances of the case do not warrant so. The agreement to sell in favour of the appellants' father is dated 22.10.1988 and sale deed was to be executed and registered by 15.06.1989. The respondent Nos. 1 to 4 filed Civil Suit No. 60/1989 in 1989. It is difficult to believe that the appellants' father was not aware of the pendency of that suit. No explanation has been furnished as to why after expiry of the date of execution of the sale deed in favour of Kishan Singh, i.e. 15.06.1989, the appellants' father did not file the suit for specific performance which was subsequently filed on 6.2.1996 as Civil Suit No. 81/1996. Even if it is presumed that Kishan Singh was not aware of pendency of suit filed by the respondent Nos. 1 to 4, no explanation could be furnished that in case, the appellants' father filed another suit No. 1075/1996 for setting aside the decree dated 8.5.1996 in Civil Suit No. 60/1989, why did he wait till the decision of that suit for lodging FIR, as the civil and criminal proceedings could have proceeded simultaneously. The FIR has been filed only on 23.07.2002 i.e. after filing the RFA No. 2488/2002 before the High Court on 15.07.2002. Therefore, there is an inordinate delay on the part of the appellants' father in filing the FIR and there is no explanation whatsoever for the same. 21 Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. Therefore, there is an inordinate delay on the part of the appellants' father in filing the FIR and there is no explanation whatsoever for the same. 21 Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. Sahib Singh vs. State of Haryana, AIR 1997 SC 3247 . 22 In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. Chandrapal Singh and Others vs. Maharaj Singh and Another, AIR 1982 SC 1238 , State of Haryana and Others vs. Ch. Bhajan Lal and Others, AIR 1992 SC 604 , G. Sagar Suri and Another vs. State of U.P. and Others, AIR 2000 SC 754 and Gorige Pentaiah vs. State of A.P. and Others, (2008) 12 SCC 531 .” The glaring and obscure allegations of the present case leads to an indubitable conclusion that respondents no. Bhajan Lal and Others, AIR 1992 SC 604 , G. Sagar Suri and Another vs. State of U.P. and Others, AIR 2000 SC 754 and Gorige Pentaiah vs. State of A.P. and Others, (2008) 12 SCC 531 .” The glaring and obscure allegations of the present case leads to an indubitable conclusion that respondents no. 3 to 6, who have failed to succeed in the civil proceedings have initiated the criminal proceedings with mala-fide intention just to harass the petitioners. The complaint has been lodged clearly with a view to spite the other parties because of a private and personal grudge and to enmesh the other parties in the long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. The complainants were aware of the dispute since 2002. Thus, the delay in lodging the complaint would be fatal and can be termed as an afterthought in order to harass the petitioners by embroiling them in the criminal proceedings. In such circumstances, the impugned complaint has to be quashed at the threshold and the same cannot be allowed to be sustained for taking further cognizance by the Magistrate. 11. The upshot of the aforenoted analysis, is that there can be no scintilla of doubt that the impugned complaint is filed with oblique motive with a view to harass the petitioners, hence the same deserves to be quashed and set aside by invoking the inhering powers of this Court under section 482 of the Cr.P.C. 12. Resultantly, both the writ petitions are allowed. The impugned Criminal Complaint registered as Inquiry Case No. 3 of 2015 before Additional Chief Metropolitan Magistrate, Court No. 12, Ahmedabad as well as all subsequent and consequential proceedings arising from the impugned criminal complaint are hereby quashing and setting aside. RULE is made absolute accordingly. 13. Registry to place a copy of this order in the connected matter. Writ Petitions allowed.