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2025 DIGILAW 1053 (GUJ)

Kanubhai Shambhudas Patel v. State of Gujarat

2025-09-12

J.C.DOSHI

body2025
ORDER : J.C. Doshi, J. 1. By way of this petition under Section 482 of the Criminal Procedure Code, the petitioners have prayed for following reliefs :- “(A) That this Hon'ble Court be pleased to quash criminal complaint of opponent no.2 filed before 6th Additional Chief Judicial Magistrate First Class being Criminal Complaint (criminal inquiry) no. 9/2015 and further also be pleased to quash and set aside the criminal complaint registered before the Mehsana Taluka Police Station being M. Case no.1/2015. B) Pending admission hearing and final disposal of this application this Hon'ble Court be pleased to stay further proceedings of the aforesaid criminal complaint of opponent no.2 filed before 6th Additional Chief Judicial Magistrate First Class Mehsana being Criminal Complaint (criminal inquiry) no. 9/2015 and further also be pleased to stay the further proceedings of criminal complaint registered before the Mehsana Taluka Police Station being M. Case no.1/2015. (C) That this Hon'ble Court be pleased to award the cost of this petition. (D) That this Hon'ble Court be pleased to pass such other and further order as the nature and circumstances of the case may demand.” 2. The facts in a nutshell are as under :- 2.1 As per the FIR dated 26.12.2013 registered at Mehsana Taluka Police Station being M.Case No. 1 of 2015, the agricultural land situated within the limits of village Nugar, District and Sub-District Mahesana, bearing Revenue Survey/Block No.174 paiki, admeasuring He. Are. Sq. Mt. 0-68-80 belongs to complainant and his cousin (son of uncle) Sureshbhai Kantilal Patel, by way of inheritance and is under their joint ownership, possession and occupancy. 2.2 The said land, is approximately three bighas in total, of which one and a half bighas belongs to the complainant and one and a half bighas belongs to the mother of Sureshbhai Kantilal. 2.3. By cultivating the said land, the complainant as well as their family members have been maintaining their livelihood. 2.4 The complainant and his cousin Sureshbhai Kantilal decided to sell the said land to the accused No.1. The sale consideration was fixed at the rate of Rs.5,02,100/- per bigha and the sale price was determined at Rs.14,20,940/-. It was promised to execute an agreement to sell to the effect that upon payment of the remaining consideration amount within 17 (seventeen) months, the sale-deed would be executed. The sale consideration was fixed at the rate of Rs.5,02,100/- per bigha and the sale price was determined at Rs.14,20,940/-. It was promised to execute an agreement to sell to the effect that upon payment of the remaining consideration amount within 17 (seventeen) months, the sale-deed would be executed. The complainant requested the accused No.1 to have prepared the agreement to sell in respect of the said sale transaction and accordingly, the agreement to sell was prepared by the accused No.1, wherein his signature and signature of Sureshbhai Kantilal were obtained by the accused No.1. 2.5 As per the terms, it was agreed with signatures that the accused No.1 would pay the remaining sale consideration within seventeen months and get the sale-deed executed. 2.6 The complainant and his cousin Sureshbhai repeatedly asked the accused to pay the consideration and execute the sale deed within the stipulated period of the agreement to sell. However, the accused No.1 did not pay any consideration nor showed readiness to execute any sale- deed even after expiry of the period decided in the agreement to sell, but kept giving false assurances. Sometime later, the complainant came to know from discussions that, the accused No.1 had, on the basis of a Power of Attorney, executed a sale deed in favour of his brother Rameshbhai Shambhubhai Patel, the accused No.2. 2.7 Upon learning this, as they had never executed any Power of Attorney, the complainant checked the relevant records and found that the accused No.1 had caused registration of a sale-deed in the office of the Sub-Registrar in respect of the said land on the basis of a Power of Attorney. He immediately procured the necessary records and submitted objections against the entry made in the revenue record and filed Special Civil Suit No.88/2007 in the Civil Court at Mahesana. It revealed that the said Power of Attorney had been executed on 02/02/2006 and that the stamp paper of Rs.100/- for the Power of Attorney in his name, had been purchased by one third party namely Prahladbhai alias Babubhai wherein his signature and that of Sureshbhai Kantilal Patel were shown as executants and the accused Nos.3 to 5 have signed as witnesses though they neither had ever signed on any Power of Attorney. It is alleged that the accused persons, through conspiracy and collusion and as a part of cheating and fraud against him, fabricated and created a bogus and forged Power of Attorney and on the basis of such fraudulent and fabricated Power of Attorney, the accused No.1 executed false and illegal documents in favour of his brother, the accused No.2 without their knowledge or consent, as a part of criminal acts of grabbing his valuable land. They therefore, initiated legal proceedings being Special Civil Application Nos.1055/2013 and 4523/2013 before the Hon’ble High Court of Gujarat against the accused Nos.1 and 2, wherein the Hon’ble High Court of Gujarat, ordered to maintain status quo. They submitted the above facts through RPAD to Police Station on 26.12.2013 and Superintendent of Police and subsequently also made an application to District Collector on 11.3.2014. However, Police only recorded stated but did not register an FIR. 3. Learned advocate Mr. Viral Dave appearing for the petitioners submitted that the private complaint filed against them by the respondent before the Chief Judicial Magistrate, Mehsana which was initially registered as Criminal Inquiry No. 9 of 2015. However, one application was moved by the complainant to the police and the learned Chief Judicial Magistrate in exercise of power under Section 210 (1) of the Criminal Procedure Code, stayed the proceedings and called for the report from the police about the application filed before it. After receiving the report, the 6th Additional Chief Judicial Magistrate, Mehsana passed the order on 5.11.2015 and handed over the investigation to the police under Section 156(3) of the CRPC pursuant to which the questioned FIR was registered. 3.1 Learned advocate Mr. Viral Dave submits that the petitioner has challenged the questioned FIR by way of this petition. He further submits that the entire dispute is related to the power of attorney (page 17). He further submitted that according to the complainant, he has not executed any such power of attorney in favour of Kanubhai Shambhudas Patel qua the disputed land. 3.2 Learned advocate Mr. Viral Dave submits that prior to filing of the private complaint, the complainant has filed Special Civil Suit No. 88 of 2007 before 2nd Additional Senior Civil Court, Meshana seeking the relief to cancel the sale deed and as also the power of attorney. 3.2 Learned advocate Mr. Viral Dave submits that prior to filing of the private complaint, the complainant has filed Special Civil Suit No. 88 of 2007 before 2nd Additional Senior Civil Court, Meshana seeking the relief to cancel the sale deed and as also the power of attorney. He referred to the judgment and decree passed by the 2nd Additional Senior Civil Court (Annexure H) and would submit that issue No.1 was framed by the Civil Court in regard to the contention that whether the plaintiff complainant proves that the power of attorney is forged and bogus. He would further submit that the learned Trial Court after recording the evidence and appreciating the same reached to the conclusion that the plaintiff who is the complainant in the case failed to establish that the power of attorney was forged and fabricated. 3.3 Learned advocate Mr. Viral Dave submits that though the appeal has been filed against the judgment and decree before the High Court the issue is decided by the learned Civil Court which governs the field and accordingly the contentions and allegations raised by the complainant in the private complaint later on culminated into the FIR squarely meets a dead end and therefore the FIR is found to be vindictive. He would further submit that the judgement and decree was passed by the learned Civil Court on 29.9.2012 and the private complaint was filed on 21.2.2015 which runs into 12 paras and in total 9 pages missing the averments that the complaint has lost his battle in the Suit before the Civil Court. This shows the malice in the mind of the complainant. The complaint is filed suppressing the material facts and therefore on that ground the complaint deserves to be quashed. 3.4 Another submission canvassed by learned advocate Mr. Viral Dave is that the alleged power of attorney which was disputed was executed on 2.2.2006. The complainant filed the Civil Suit on 13.9.2007 and filed the criminal complaint before the learned Trial Court on 21.2.2015 almost after 9 years of executing the power of attorney. He would further submit that the plain reading of the FIR shows that there is no explanation for the delayed actions and in such circumstances, he would submit that the private complaint was just abuse of process of law. He, therefore submits to allow this petition and quash the FIR. 4. He would further submit that the plain reading of the FIR shows that there is no explanation for the delayed actions and in such circumstances, he would submit that the private complaint was just abuse of process of law. He, therefore submits to allow this petition and quash the FIR. 4. Per contra learned advocate appearing for the private respondent submits that the complainant was the plaintiff in the Special Civil Suit who has filed the Appeal before the Court. The Appeal is the continuation of the Suit and yet the issue has not attained finality and therefore the petitioner cannot claim any right upon the decision of the learned Trial Court in Special Civil Suit. He submitted that the complainant has failed to prove that the power of attorney is forged and fabricated. He referred to the document filed against his reply and even as per the police opinion in the power of attorney as well as the agreement to sell the signature of Thakorji Vishnuji Mafaji is false and fabricated and the said person is examined as a witness before the learned trial Court by the plaintiff and therefore, prima facie it results that irrrecoverable power of attorney has been forged by the petitioner to grab the land of the complainant without paying the sale consideration. 4.1 He would further submit that having agreed to sell for total consideration of Rs. 14,20,940/- for the disputed land only Rs, 3,55,235/- was paid towards the sale consideration. The petitioner was the purchaser of the property and with a view to not to pay the remaining amount on the forged power of attorney executed the sale deed in favour of the attorney of the complaint and executed the sale deed in favour of his brother. He further submitted that the power of attorney is forged and the investigation which has taken place at the initial stage suppressed the case of the complainant and therefore he submits that the quashment of the FIR which is sought at this stage should be declined by dismissing this petition. 5. Learned APP Mr. Soaham Joshi adopted the argument canvassed by learned advocate Mr. Chaudhary and submitted that the petition be dismissed. 6. I have heard learned advocates for both the sides and perused the document. 5. Learned APP Mr. Soaham Joshi adopted the argument canvassed by learned advocate Mr. Chaudhary and submitted that the petition be dismissed. 6. I have heard learned advocates for both the sides and perused the document. 6.1 It is apt to note that the plaintiff has filed the suit being Special Civil Suit No. 88 of 2007 before the learned Senior Civil Court, Mehsana seeking the relief of the cancellation of the sale deed and power of attorney. This suit was filed on 13.9.2007 against Kanubhai Shambhudas Patel and Rameshbhai Shambhudas Patel. The suit was contested by the defendant and ultimately the learned Trial Court framed the issues from the rival assertions at Exh. 53 (page 57). Amongst the issues framed by the learned Trial Court the first issue was whether the plaintiff proves that the defendant No.1 i.e Kanubhai had created forged and fabricated power of attorney with regard of land of survey No. 174 hect R.A sq mts 0-34-40 of moje, Taluka District Mehsana. 6.2 The learned Trial Court permitted both he parties to lead the evidence and the issue was answered in negative and the reasons are ascribed in paras 7 to 17 in the judgement and order of Special Civil Suit No. 88 of 2007 (page No. 47 to 57). In the process of answering issue No.1 in negative, the learned Trial Court has assessed the evidence that the defendant of the suit who is one of the petitioner herein has also led the evidence of notary public and the said evidence suppressed the case of the defendant No.1-petitioner. 6.3 In the nutshell the Civil Court in Special Civil Suit No. 88 of 2007 did not believe that the power of attorney which is disputed in the private complaint is forged and bogus. Of course as per the submission of Mr. Chaudhary learned advocate the Appeal is pending against the judgment and decree passed in Special Civil Suit No. 88 of 2007 but it is noticeable that the judgment and decree in the Special Civil Suit was passed /delivered on 29.9.2012 atleast 3 years to filing of the private complaint. Of course as per the submission of Mr. Chaudhary learned advocate the Appeal is pending against the judgment and decree passed in Special Civil Suit No. 88 of 2007 but it is noticeable that the judgment and decree in the Special Civil Suit was passed /delivered on 29.9.2012 atleast 3 years to filing of the private complaint. The private complaint contains 9 pages and 12 paras but it lacks whisper of a word about civil litigation fought between the parties except that the Special Civil Suit No, 88 of 2007 was filed (after para 4 of the private complaint ) or the Appeal thereof has been filed before the High Court of Gujarat after losing the battle in the civil side. The private complaint suffers from principles of suppression of material facts viz the result of Civil Suit is not mentioned despite it was available with the complainant and therefore, it is established that the complainant with malicious and oblique motive committed mischief of suppressing material facts. Since the Civil Court proceedings decided that the plaintiff who is the complainant failed to prove that the power of attorney is forged and fabricated, the same finding governs the issue on the criminal side. The complainant who was plaintiff in the suit was at liberty to lead the evidence of his discretion in the Civil Suit, did not choose to lead the evidence in the form of opinion of the hand writing expert to prove that the power of attorney is forged and fabricated which is visible from the perusal of the judgment and decree in Special Civil Suit. According to this Court the filing of the FIR is one more attempt by the complainant after losing the civil battle. It is a malafide attempt and it also attracts the principle of abuse of process. 7. It is also noticeable that the learned Trial Court passed the order and handed over the investigation to the police under Section 156(3) of the CRPC and the reasons stated therein (Annexure B) showed that prima facie it comes that the power of attorney is forged and therefore, the investigation under Section 156(3) of the CRPC is required. This finding of the learned Trial Court is cryptic and with non-application of the mind. 8. In the judgment of the Supreme Court in the case of Ramdev Food Products Pvt. Ltd Vs. This finding of the learned Trial Court is cryptic and with non-application of the mind. 8. In the judgment of the Supreme Court in the case of Ramdev Food Products Pvt. Ltd Vs. State of Gujarat (2015) 6 WSCC 439, even the order directing to register M. Case number to investigate the offence under Section 156(3) does not survive. Relevant para is reproduced as under : “On the other hand, contention on behalf of the alleged accused is that both the powers of the Magistrate - (i) directing investigation under Section 156(3); and (ii) direction under Section 202 to seek a report from police after investigation to enable the Magistrate to decide whether to proceed further and issue process are qualitatively different and are in different chapters of the Code. Thus, as per scheme of the Code, power of police in pursuance of directions under the said two provisions is not the same. The Magistrate has discretion either to direct registration of a case under Section 156(3) or to conduct inquiry himself as the situation may warrant. This discretion is to be exercised by the Magistrate in his wisdom and having regard to the nature of material available. Direction under Section 156(3) to register a criminal case and to investigate is to be exercised where the Magistrate is satisfied that prima facie a cognizable offence has been committed. On the contrary, where he thinks it necessary to conduct further inquiry before deciding whether he should proceed further in the matter, matter has to be dealt with under Section 202. Mere allegation of forgery is not enough to require the Magistrate to pass the order under Section 156(3).” 9. At this juncture I may refer to State of Haryan Vs . Bhajanlal In the case of State of Haryana Vs. B.Bhajanlal & ors., AIR 1992 SC 604 , the Hon’ble Apex Court summed up the proposition of law, which reads as under:- “(1) 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. (2) Where the allegations ins the F.I.R. and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the code. (3) Where, the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same donot disclose the commission of any offence and make out the case against the accused. (4) Where, the allegations in the F.I.R. 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 S.155(2) of the Code. (5) Whether, the allegations made in the F.I.R. 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. (6) Where, there is an express legal bare engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) toi the institution 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. (7) Where a criminal proceeding is manifestly attended with malafide 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." The findings of the Hon’ble Apex Court in para 1,3 and 7 are attracted in the present case. In view of above, present petition deserves consideration. 9.1 This petition is accordingly Allowed. The impugned FIR being Criminal complaint (criminal inquiry) No. 9 of 2015 and the criminal complaint registered with Mehsana Police Station being M. Case No. 1 of 2015 and all the consequential proceedings qua the petitioners are quashed and set aside. Rule is made absolute. 10. The observations and findings herein are limited to reasons in this petition and will not influence any other litigation between the parties.