Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 14 (GUJ)

Mahendrasinh Kanaksinh Thakor v. State Of Gujarat

2023-01-03

GITA GOPI

body2023
ORDER : 1. This application has been filed under Section 482 of the Code of Criminal Procedure, 1973 for quashing and setting aside the First Information Report bearing I-C.R. No.140 of 2017 registered with Kamrej Police Station, Surat Rural for the offences punishable under Sections 406, 409, 420, 465, 467, 468, 471, 120(B) and 114 of the Indian Penal Code and the proceedings initiated in pursuant thereto. 2. Under the instructions of this Court, learned Advocate Ms. Rashmiben D. Gadhavi is assisted by learned Advocate Mr. Kishankumar R. Maurya though learned Advocate Mr. Maurya had withdrawn his representation on behalf of the respondent No.2. 3. Learned Advocate for the applicant Ms. Kruti M. Shah submits that as per the complainant, his deceased father had three brothers. The deceased father was the eldest, thereafter Arunbhai Bhagwanbhai Patel who stays at Canada, the next brother being Mahendrabhai and the youngest being Kiranbhai, are residing at America. As per learned Advocate Ms. Shah, the complainant is the nephew of Arunbhai, who avers that Arunbhai has legal right, interest and share in the land bearing Block No.228, Revenue Survey No.252 admeasuring 1 hectare 90 RA and 20 sq. metres which is approximately 8 bighas of land at Village Velanja, Kamrej. It is stated that Arunbhai had executed the power of attorney in his favour and he being the power of attorney had filed a complaint on 28.05.2017 against the other uncle – Kiranbhai and the present applicant who is the purchaser of the land – Mahendrasinh Kanaksinh Thakore. 4. As per the complainant, the said land was purchased from Chimanbahi C. Patel, resident of Velanja, Taluka Kamrej by Registered Sale Deed No.310 dated 07.03.1987 by Arunbhai and his uncles Mahendrabhai and Kiranbhai and accordingly, Revenue Survey No.1847 was mutated on 15.09.1993, and was certified by the Circle Officer, and thus in this way, all the 3 brothers became the owner of the said land. 5. It is the case of the complainant that on 26.06.1987 his uncle Arunbhai had executed the power of attorney in favour of his other uncle Kiranbhai at Canada to deal with the property and to give the share to his wife. Learned Advocate Ms. 5. It is the case of the complainant that on 26.06.1987 his uncle Arunbhai had executed the power of attorney in favour of his other uncle Kiranbhai at Canada to deal with the property and to give the share to his wife. Learned Advocate Ms. Shah submits that the complainant alleges that Kiranbhai had misused the power and sold off the land to Mahendrasinh Kanaksinh Thakore by executing a Registered Sale Deed No.1224 dated 22.10.1993 and in the said documents, Kiranbhai is the power of attorney holder of Arunbhai and Mahendrabhai. It is submitted that the First Information Report has been filed on the ground that the Sale documents on which the uncle Kiranbhai has signed as power of attorney of Arunbhai is forged and bogus and thus has cheated and committed breach of trust and hence, Arunbhai has been cheated of his share of the land and on 22.10.1993, the date on which the documents were executed, the uncle Arunbhai was staying in Canada. It is further submitted that the First Information Report is lodged on the premise that the power of attorney executed by the uncle Arunbhai in favour of another uncle Kiranbhai has no reference of the Sale and the power has been misused which speaks of criminal conspiracy. It is thus submitted that by creating forged documents in his support, the uncle Kiranbhai has used it to be true and has illegally used the same to deal with the property on his other uncle Arunbhai. Learned Advocate Ms. Shah thus states that the Registered Sale Deed is not a forged document since no ingredients of Sections 463 and 464 of the Indian Penal Code are attracted. For the power of attorney, learned Advocate Ms. Shah contended that it is the Civil Court which will interpret the document as per the Contract Act and thus urged to quash the First Information Report and subsequent proceedings. 6. Countering the above arguments, learned Advocate Ms. Rashmiben D. Gadhvi assisted by learned Advocate Mr. For the power of attorney, learned Advocate Ms. Shah contended that it is the Civil Court which will interpret the document as per the Contract Act and thus urged to quash the First Information Report and subsequent proceedings. 6. Countering the above arguments, learned Advocate Ms. Rashmiben D. Gadhvi assisted by learned Advocate Mr. Kishankumar D. Maurya contended that the power of attorney executed in favour of Kiranbhai by Arunbhai does not authorise Kiranbhai to sell the property and going beyond the conditions of power of attorney, has committed breach of trust and the power of attorney does not bear the description of the property and the authority so granted was only to merely manage the property since Arunbhai was suffering from mental illness. Learned Advocate has relied on the following judgments of the Hon’ble Apex Court :- (a) T. Vengama Naidu v. T. Dora Swamy Naidu reported in 2007 (12) SCC 93 and (b) Ganga Dhar Kalita v. State of Assam reported in 2015 Cri.L.J. 3118. 7. Further, learned Advocate Ms. Rashmiben D. Gadhavi submitted that Regular Civil Suit No.23 of 2017 is also filed by the present complainant as power of attorney holder of Arunbhai Bhagwanbhai Patel. The pendency of the suit / litigation can never be made a ground to quash the criminal proceedings. It is submitted that the brother had no right over the property and it is submitted that without any authority there was the intention to cause loss by the younger brother and to cheat him. It is submitted that the power of attorney holder had no right to sell the property and rather in connivance with the present applicant sold of the property. It is submitted that the said Act would be punishable under Sections 406 and 420 of the Indian Penal Code. It is further submitted that at the initial stage after filing of the First Information Report, this Court should be slow in interfering with the further process in connection with the trial. 8. On the other hand, learned Additional Public Prosecutor submits that prima-facie the case appears to be civil dispute between the parties and the allegations are with regard to the misuse of power of attorney. 8. On the other hand, learned Additional Public Prosecutor submits that prima-facie the case appears to be civil dispute between the parties and the allegations are with regard to the misuse of power of attorney. Further, it is also a case of cheating and criminal breach of trust and it is thus stated that at the initial stage, the First Information Report should not be quashed since the parties in the trial, permitted to proceed, would have opportunity to produce the evidence and the trial Court would thus be in a position to decide on the evidence so produced and ultimately, in accordance with the law, the judgment would be delivered which may decide the fate of the litigation. 9. Heard learned Advocates appearing for the respective parties and perused the records of the case. The land bearing Block No.228, Revenue Survey No.252 was purchased by the Registered Sale Deed on 07.03.1987 by three brothers – Arunbhai, Mahendrabhai and Kiranbhai. As per the complaint, Arunbhai is a resident of Canada, Mahendrabhai alongwith his family is settled at America and Kiranbhai since 1995 is also residing at America. Thus, all the brothers are non-residents of India. The complainant – Sanjay Prabhubhai Patel is the son of the deceased eldest brother. It is stated that the complainant himself has no right, title or interest in the property. Rest of the three brothers had purchased the property. The power of attorney which has been questioned is dated 26.06.1987. The certified copy of the power of attorney is not on record but the interpretation which the complainant himself has stated in the First Information Report is to the effect that on 26.06.1987, Arunbhai from Canada had executed a power of attorney in favour of Kiranbhai stating that in the eventuality of his being mentally ill, then the Power of Attorney holder would be entitled to manage the property and in that circumstances, the holder would have to give share of the property to his wife. 10. In addition, the complaint has not been filed by the aggrieved himself. The nephew of Arunbhai has put into motion the criminal machinery on 28.05.2017, the property purchased in the year 1987 was sold by way of Registered Sale Deed on 22.10.1993. The power of attorney is stated to have been executed in favour of Kiranbhai in 1987. 10. In addition, the complaint has not been filed by the aggrieved himself. The nephew of Arunbhai has put into motion the criminal machinery on 28.05.2017, the property purchased in the year 1987 was sold by way of Registered Sale Deed on 22.10.1993. The power of attorney is stated to have been executed in favour of Kiranbhai in 1987. Thus, it is not the case that immediately on receipt of power of attorney, the property has been sold off. After about six years, the property has been sold. Under what circumstances and under reason prevailed for the sale of the property could be explained only by Kiranbhai. The present applicant claims to be a bonafide purchaser of the property. The Regular Civil Suit No.23 of 2017 is also filed by the power of attorney alleging that the power of attorney has been misused and prayer is made for declaring the Sale Deed dated 22.10.1993 as false and subsequent Sale Deed 26.07.2022 as null and and void. 11. The First Information Report states that the power of attorney was given to Kiranbhai to be used and implemented in case Arunbhai suffers from any mental illness and would not be in a position to manage the property. In that circumstances, the brother – Kiranbhai would be entitled to manage the property. Thereafter, it is stated in the First Information Report that the power of attorney further directed him to give the share of his property to his wife. The allegations are that the power of attorney has been misused but as to how the misuse has occurred has not been clarified. The First Information Report further states that the power of attorney has been misinterpreted and that there was no power to sell the property. 12. The complainant himself has interpreted the cause for granting the power by one brother to another of the property which has been jointly purchased by the three of them. The facts of the case suggest that Regular Civil Suit No.23 of 2017 has been filed. It is not the case of the complainant of any forged signature placed on the power of attorney. The execution of the power of attorney at Canada has not been refuted by the parties. It is not the case that the brother had created any forged documents by any forged signature and thereafter, has executed the Sale Deed. It is not the case of the complainant of any forged signature placed on the power of attorney. The execution of the power of attorney at Canada has not been refuted by the parties. It is not the case that the brother had created any forged documents by any forged signature and thereafter, has executed the Sale Deed. After six years of the execution of the power of attorney, the Sale Deed was registered on 22.10.1993. All the three brothers are non-residents of India. A copy of the power of attorney executed by another brother – Mahendrabhai and appointing Kiranbhai as an attorney is placed on record which is dated 07.05.1987. The said power of attorney is to the effect granting full power and authority ‘to transact all and every kind of business whatever to purchase or sell, in the name of Mahendrabhai all kinds of property, real and personal, to sign in his name to any Note, bond, draft, deed or any other instrument, and to bind him thereby in as full and ample manner as Mahendrabhai could do, were he would be personally present and signing the same.’ It has been argued by learned Advocate Ms. Kruti Shah that the disputed power of attorney is to be read in the context and relation to the same granted by another brother Mahendrabhai to the same brother Kiranbhai. 13. A copy of the disputed power of attorney which has been produced on record by the applicant and the one which has been given for the perusal of this Court is not a legible copy. Further, there are certain blank spaces in between. It is submitted that on that basis only, the First Information Report has been filed. The original POA dated 26.06.1987 is not on record. 14. Section 406 of the Indian Penal Code prescribes punishment for criminal breach of trust and Section 420 of the Indian Penal Code is punishment for cheating and dishonestly inducing delivery of property. To draw inference of criminal breach of trust, fraudulent and dishonest intention must exist to commit the crime, thus, under Section 406 these two elements must exist at the time of commission of offence. In context of contracts, the distinction between criminal breach of trust and cheating would depend upon fraudulent inducement and mens-rea. To draw inference of criminal breach of trust, fraudulent and dishonest intention must exist to commit the crime, thus, under Section 406 these two elements must exist at the time of commission of offence. In context of contracts, the distinction between criminal breach of trust and cheating would depend upon fraudulent inducement and mens-rea. The breach of contractual obligations accompanied by fraudulent, dishonest or disruptive inducement resulting into involuntary and insufficient transfer would stand in the criminal law under the provisions of Section 415 of the Code. Fraudulent and dishonest intention must exist to commit criminal offence but mere breach of trust itself will not constitute criminal offence under Section 420 of the Indian Penal Code unless dishonest intention is shown right at the beginning of the transaction. In the case of Satishchandra Ratanlal Shah v. The State of Gujarat reported in 2019 9 SCC 148 , the Apex Court has made observations with regard to criminal breach of trust and cheating stating that a mere breach of a promise, agreement or contract does not ipso facto, constitute the offence of the criminal, breach of trust contained in Section 405 of the Indian Penal Code without there being a clear case of entrustment. 15. Here in this case, there is no denial that authority was granted to Kiranbhai. Even Mahendrabhai had executed and appointed Kiranbhai as power of attorney holder. Mahendrabhai had even authorized Kiranbhai to sell the property. While the copy of the power of attorney which has been produced for perusal of this Court, is with a dispute by the complainant that no such authority was granted. The original has not been produced and there is only a photocopy, the photocopy does not appear to be legible and has some blank spaces which is preceding the paragraph which notes that the power of attorney is subject to certain conditions and restrictions. The interpretation which has been placed and shown by the complainant of the said power of attorney is to the effect that in case his uncle suffers from any mental illness, then only in that circumstances, his other uncle – Kiranbhai would have the authority to manage the property and in that circumstances Kiranbhai has to give his share to Arunbhai’s wife. The case of cheating or fraud from the very stage of execution of the power of attorney does not prima-facie gets proved and mens-rea is to be shown from the date of execution of power of attorney where inducement should have been at the hands of Kiranbhai and such inducement would have been with a very intention to dishonestly misappropriate property, to consider that the property was disposed of, in violation of any direction of law. 16. To fall under the case of being criminal breach of trust, the ingredients of fraudulent inducement and mens-rea has to prima-facie exist and execution of power of attorney is not denied by the complainant but while he has lodged the First Information Report on behalf of the Arunbhai and the person aggrieved has not filed or got any criminal complaint registered against his brothers. The present applicant is a person who has purchased the property, which is running in the name of the three brothers. It is for him to prove whether he was a bonafide purchaser. The Civil Suit is pending before the Court and the applicant being party to the Suit would have to prove his case of being a bonafide purchaser. Here, the complainant who is the nephew and not the aggrieved has failed to explain as to who and in what manner the power of attorney granted has been misused. Whether there was any criminal intent in selling the property is not explained and further the delay of 24 years after registration of the Sale Deed on 22.10.1993 has been not sufficient explained. The fact of interpretation of the power of attorney and the validity of the Sale Deed and the applicant being a bonafide purchaser would be for the Civil Court to decide. 17. In case of State of Haryana V. Bhajan Lal and Others reported in AIR 1992 SC 604 , the Apex Court made the following observations :- “8.1. The fact of interpretation of the power of attorney and the validity of the Sale Deed and the applicant being a bonafide purchaser would be for the Civil Court to decide. 17. In case of State of Haryana V. Bhajan Lal and Others reported in AIR 1992 SC 604 , the Apex Court made the following observations :- “8.1. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guide in myriad kinds of cases wherein such power should be exercised :- (a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (c) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 18. In the result, the application is allowed. The impugned First Information Report bearing I-C.R. No.140 of 2017 registered with Kamrej Police Station, Surat Rural and the proceedings initiated in pursuance thereof qua the applicant are quashed and set aside. Rule is made absolute. Direct Service is permitted.