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Gujarat High Court · body

2023 DIGILAW 28 (GUJ)

Bhikhabhai Gelabhai Rabari v. State Of Gujarat

2023-01-04

GITA GOPI

body2023
JUDGMENT : 1. Rule. Mr. Pranav Trivedi, learned APP waives service of Rule on behalf of the respondent– State. 2. This application has been filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) for quashing the FIR bearing CR No.I-184/2015 registered with Aslali Police Station, Ahmedabad (Rural) for offences punishable under sections 465, 467, 468, 471, 120B of the IPC and to terminate all the subsequent proceedings in connection with the FIR. 3. Ms. Ayushri Thakkar, learned advocate with Mr. Maulik Nanavati for the petitioner states that the petitioner is permanent resident of Ahmedabad and is engaged in the activity of farming and selling dairy products. Ms. Thakkar submits that Manubhai Dahyabhai Shah owned land bearing plot no.43, admeasuring 1021 sq. yards (853.67 sq. mtrs.) in Azad Nagar Society being land bearing survey nos.216, 217, 267 to 270, 278, 280 to 286, 291, 293, 294, 472 to 477 and 490 to 496, situated in the sim of Village Fatehwadi, Taluka Dascroi, District Ahmedabad. Ms. Thakkar submits that Azadnagar Plot Holder Association was registered under the Bombay Non-Trading Corporation and had issued share certificate to Manubhai Dahyabhai Shah in his capacity as registered share holder of the association and owner of the land. Ms. Thakkar states that the share certificate dated 10.8.1989 and the consent letter given in favour of Manubhai Dahyabhai Shah to carry out the construction over the said plot of land using the services of a common architect appointed by the association reflects his title over the property. 3.1 Ms. Thakkar further submits that Manubhai Dahyabhai Shah sold plot no.43 of the society to the petitioner which is subject land of the FIR by sale deed duly registered with the office of the Sub-Registrar, Ahmedabad (4-Paldi) on 8.6.2009. The total sale consideration of Rs.4,50,000/- was duly paid by the petitioner and accepted by the seller. Ms. Thakkar submits that the very said instrument of sale recorded that vacant and peaceful possession of the land was handed over to the petitioner and the petitioner had taken possession of the land. 3.2 Ms. Thakkar further states that thereafter, the petitioner sold subject land – plot no.43, admeasuring 1021 sq. yards to the complainant – Chetanbhai Jashubhai Patel for total consideration of Rs.4,61,000/- on 15.9.2009. 3.2 Ms. Thakkar further states that thereafter, the petitioner sold subject land – plot no.43, admeasuring 1021 sq. yards to the complainant – Chetanbhai Jashubhai Patel for total consideration of Rs.4,61,000/- on 15.9.2009. The sale deed was duly registered with the office of Sub-Registrar, Ahmedabad (4-Paldi) and after receiving the entire sale consideration, the present petitioner had handed over vacant and peaceful possession of the land and the said factum of handing over the vacant and peaceful possession is reflected in the sale deed and the recital has not been disputed at the time of registration of the sale deed. Ms. Thakkar further submits that the FIR itself reflects the fact that the vacant and peaceful possession of the land was handed over to the complainant. 3.3 Ms. Thakkar submits that subsequent to execution of the sale deed, the petitioner would have no right, title or interest vested in the subject land. Hence, on that ground itself, the impugned FIR is required to be quashed and set aside. Ms. Thakkar further states that Regular Civil Suit no.535 of 2009 and Regular Civil Suit no.542 of 2000 are pending before the Civil Court and the civil rights are required to be decided. Ms. Thakkar further submits that if the matter is absolutely civil in nature, then, no cognizance could be taken on the FIR and such FIR, at the initial stage, is required to be quashed and set aside. Ms. Thakkar further submits that after having admitted about registration of the sale deed and the consideration amount so paid and after the present petitioner handing over the vacant and peaceful possession of the land, the FIR is filed on the premise that Babubhai Valjibhai Chauhan and Laljibhai Bhayabhai Patel encroached upon the land and have resisted him on the question property while both those persons have not been made party in the matter. Ms. Thakkar submits that the present petitioner had purchased the land from Manubhai Dahyabhai Shah – accused no.1 in whose favour the share certificate was issued by Azadnagar Plot Holder Association on 10.8.1989 and the consent letter for permission to construct on the land was also received by Manubhai Dahyabhai Shah. Ms. Thakkar submits that the present petitioner had purchased the land from Manubhai Dahyabhai Shah – accused no.1 in whose favour the share certificate was issued by Azadnagar Plot Holder Association on 10.8.1989 and the consent letter for permission to construct on the land was also received by Manubhai Dahyabhai Shah. The present petitioner had purchased the property from Manubhai Dahyabhai Shah on 8.6.2009, while the claim is made by Babubhai Valjibhai Chauhan and Laljibhai Bhayabhai Patel by way of registered Banakhat no.703/98 dated 18.3.1998 and on the basis of the power of attorney, it is alleged that Babubhai Valjibhai Chauhan had given half of the property by way of notarized possession agreement and declaration dated 17.2.2009 to Rameshbhai Gagabhai Bharvad and thereafter, Manubhai Dahyabhai Shah, from whom the present petitioner had purchased the property, had canceled the registered Banakhat no.703/98 which was in favour of Babubhai Valjibhai Chauhan and Laljibhai Bhayabhai Patel by cancellation agreement with registration no.4787/09 dated 8.6.2009. It is alleged in the FIR that the present petitioner, though by way of sale deed, had executed the property after receiving the sale consideration, but when the complainant had gone for taking possession of the plot, (1) Virambhai Sajanbhai Bharvad, (2) Mukeshbhai Virambhai Bharvad, (3) Bharatbhai Virambhai Bharvad, and (4) Bhanubhai Virambhai Bharvad, residents of Fatehvadi shown him unregistered sale agreement on the stamp paper of Rs.50/- and consideration of payment of Rs.21,000/- dated 1.7.1999, Rs.20,000/- dated 10.10.1999, Rs.10,000/- dated 5.3.2000 and the witness to that agreement was shown as M.P. Patel and H.K. Jani, but the original receipts were not shown to him and it is alleged by him that Babubhai Valjibhai Chauhan had not executed any such writings while with Babubhai Valjibhai Chauhan and Laljibhai Bhayabhai Patel forged signatures false documents were created and it is alleged that though the present petitioner was knowing that the land was not of his own ownership and after taking the possession, illegally constructed the house thereupon and had taken the light connection and paid municipal tax and on the basis of the false sale agreement, Banachitthi and money receipts, Regular Civil Suit no.535 of 2009 and Regular Civil Suit no.542 of 2000 were filed and injunction has been obtained. 4. Mr. 4. Mr. Pranav Trivedi, learned APP for the respondent–State submits that the petitioner is a seller of the land who was in knowledge of forged documents created by the persons named in the FIR. Inspite of that, he had sold the property to the complainant and the allegation is of criminal conspiracy against all and hence, has urged that the FIR should not be quashed and set aside at the initial stage. 5. The complainant himself has admitted the fact that the construction has been made on the land, light connection was received and municipal tax was paid. The possession of the land was handed over after receiving the sale consideration and the FIR itself suggests that thereafter, when he had again entered upon the land, he found (1) Virambhai Sajanbhai Bharvad, (2) Mukeshbhai Virambhai Bharvad, (3) Bharatbhai Virambhai Bharvad, and (4) Bhanubhai Virambhai Bharvad, claiming their right on the property on the basis of Banakhat and the sale agreement which according to him was not final. 6. The present petitioner has purchased the property from Manubhai Dahyabhai Shah who was holding shares of the society and who too had the authority to construct upon the land. The vacant and peaceful possession was handed over to the present petitioner who thereafter sold the property to the complainant by registered sale deed dated 15.9.2009. 7. It was for the complainant to inquire about the possession and after having received the vacant and peaceful possession of the property, the present petitioner as seller of the property would have no say on the land so sold. The documents which have been urged on the basis of forged signature are agreement of sale and other receipts and on the basis of such documents, where any right, title or interest could be created on land is a question which has to be decided by the Civil Court. The present petitioner had sold the property by way of sale deed and the statement is in the said instrument of sale of receiving vacant and peaceful possession of the land. Even in the complaint itself, the petitioner has accepted of receiving vacant possession and thereafter, after visiting the land, he found the alleged person having trespassed in the property. Thus, it would be the function of the complainant to get the trespassers removed by adopting the due process of law. Even in the complaint itself, the petitioner has accepted of receiving vacant possession and thereafter, after visiting the land, he found the alleged person having trespassed in the property. Thus, it would be the function of the complainant to get the trespassers removed by adopting the due process of law. How and in what way, the other alleged documents to be considered as forged or false documents would be a matter of consideration by the Civil Court who has to decide on the documents. 8. Section 471 of the IPC could not be attracted in the present matter. The said Section would be applicable to a person fraudulently and dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record. The sale deed which has been executed by the present petitioner is on the basis of his title which he has received from Manubhai Dahyabhai Shah by way of sale deed dated 8.6.2009 and on the basis of the sale deed, had sold the property to the complainant by a sale deed registered on 15.9.2009. 9. The Hon'ble Apex Court in the case of Mohammad Ibrahim & Ors. v. State of Bihar & Anr. reported in (2009) 8 SCC 751 elucidated that the condition precedent for an offence under Section 471 of the IPC is forgery by making a false document or false electronic record or part thereof. To constitute the offence under Section 471 of the IPC, it has to be proven that the document was “forged” in terms of Section 470 of the IPC and “false” in terms of Section 464 of the IPC. Section 470 lays down that a document is ‘forged’ if there is: (i) fraudulent or dishonest use of a document as genuine; and (ii) knowledge or reasonable belief on the part of the person using the document that it is a forged one. Section 470 defines a forged document as a false document made by forgery. Section 470 lays down that a document is ‘forged’ if there is: (i) fraudulent or dishonest use of a document as genuine; and (ii) knowledge or reasonable belief on the part of the person using the document that it is a forged one. Section 470 defines a forged document as a false document made by forgery. As per Section 464 of the IPC, a person is said to have made a ‘false document’: (i) if he has made or executed a document claiming to be someone else or authorised by someone else; (ii) if he has altered or tampered a document; or (iii) if he has obtained a document by practising deception, or from a person not in control of his senses. Unless, the document is false and forged in terms of Sections 464 and 470 of the IPC respectively, the requirement of Section 471 of the IPC would not be met. Here in this case, the document which has granted the title to the complainant is a sale deed and the vacant and peaceful possession was handed over and was received by the complainant and the said fact gets reflected in the registered sale deed. Hence, this Court finds that further proceedings of the trial against the present petitioner would be an abuse of process of law and thus, in the larger interest of justice, the FIR is quashed and set aside qua the petitioner. 10. In case of State of Haryana V. Bhajan Lal & Ors., reported in AIR 1992 SC 604 , the Hon'ble Apex Court formulated as many as seven categories of cases, wherein the extraordinary power under Section 482 could be exercised by the High Court to prevent abuse of process of the court. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Hon'ble Apex Court in the said case made the following observations:- “8.1. It was clarified that it was not possible to lay down precise and inflexible guidelines or any rigid formula or to give an exhaustive list of circumstances in which such power could be exercised. The Hon'ble Apex Court in the said case 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 channelised 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.” 11. Thus, in view of observation and reasons given hereinabove and taking into consideration the facts and circumstances of the case, the impugned FIR and subsequent proceedings arising therefrom are required to be quashed and set aside. 12. In the result, the petition is allowed. The FIR bearing CR No.I-184/2015 registered with Aslali Police Station, Ahmedabad (Rural) and the proceedings initiated in pursuance thereof are quashed and set aside qua the present petitioner. Rule is made absolute to the aforesaid extent. Direct service is permitted.