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2025 DIGILAW 533 (GUJ)

Manharbhai Muljibhai Kakadia v. State Of Gujarat

2025-06-23

J.C.DOSHI

body2025
ORDER : J.C. DOSHI, J. 1. By way of this applications under Section 482 of the Code of Criminal Procedure, 1973, the applicants have prayed to quash and set aside the FIR being C.R.No.I-276 of 2018 registered with Khatodara Police Station, Surat for the offences under Sections 406 , 420, 465, 467, 468, 471, 120(b) and 34 of the INDIAN PENAL CODE and all the consequential proceedings arising therefrom. 2. Heard learned advocate Mr.Apurva Kapadia, learned advocate Mr.K.K.Trivedi, learned advocate Mr.Pratik Jasani for the applicants in respective applications and learned APP Mr.Chintan Dave for the respondent - State. 3. Learned advocates for the applicants jointly submitted that FIR is filed with systematic approach to stifle litigation about sale made by the complainant in favour of applicant - Maharbhai Kakadia. It is submitted that pursuant to order dated 04.08.2018 passed by Co-ordinate Bench of this Court documents in question i.e. power of attorney and relevant documents were send to Forensic Science Laboratory (FSL) for scientific investigation of allegations levelled in FIR that the complainant has not signed the documents. FSL being scientific evidence, turned the table and put the case that signature of complainant is true. It is submitted by learned advocates for the applicants that FIR is filed after yawning delay of 18 years and in between all the proceedings under the Revenue jurisdiction, proceedings before the Collector for granting NA permission successfully culminated in favour of the applicants even before filing of the FIR in question. It is submitted that complainant has filed Civil Suit No.347 of 2008, which is pending and in the Cvil Suit, the complainant have not pressed for interim orders. Learned advocate for the applicants submitted that before lodging FIR, three unsuccessful attempt were made by the complainant where police was of the opinion that complainant has failed to make out case but to fortune of complainant, fourth attempt was successful in culminated in questioned FIR. 3.1. Above main submissions are made by learned advocates for the applicants to allow the applications. 3.2. With regard to individual role alleged to have been played by petitioners, learned advocate Mr.Kapadia sought to submit that applicant - Manharbhai Kakadia has purchased the land after following due process as laid down in law which is recorded in interim order dated 04.08.2018 and confirmed by Hon'ble Apex Court. 3.2. With regard to individual role alleged to have been played by petitioners, learned advocate Mr.Kapadia sought to submit that applicant - Manharbhai Kakadia has purchased the land after following due process as laid down in law which is recorded in interim order dated 04.08.2018 and confirmed by Hon'ble Apex Court. It is submitted that interim order itself suggestive of the fact that the applicant has paid sale consideration to the complainant for purchasing disputed land. Learned advocate Mr.Trivedi would submit that applicant - Vasudev Gopalni is practicing advocate and given stamp paper upon which document has been executed by Vasuben, which was purchased by another applicant - Sherbahudur Bhandari, though they have limited role in alleged commission of offencee, they have faced tune of prosecution. Learned advocate Mr.Jasani earmarked role of applicant - Narendra Tiwari, he is notary, who has identified complainant and accused. In such circumstances, FSL report says and establish that on all three documents i.e. power of attorney, satakhat and kabja receipt, signature of complainant is genuine. It is submitted that no case is remaining against the applicants and sending them to face turbulence of trial would be of no use. 4. Learned APP by placing report signed by Police Inspector, Kadodara Police Station stated that FSL report is in favour of the applicants and submitted to pass necessary order. 5. Order dated 25.04.2025 noted that respondent no.2 - private respondent has expired. Learned advocate Ms.Vashi previously appearing for respondent no.2 confirms the said fact. 6. I have heard learned advocates for both the sides and perused report forwarded by Investigating Officer. Gist of FIR reads as under :- 6.1. It is alleged in the complaint that complainant is owner of the revenue survey No.50/1 having block No.113 admeasuring 14063 sq.mtrs. of moje Bhimrad, Taluka Surat, It is alleged that the applicant of Cr.M.A.No.14529 of 2018 had prepared his forged power of attorney dated 22.012.2000 and thereby sold the land to his wife Varshaben. It is alleged that though he has not sold his land to anyone and have not received any consideration, despite which by preparing forged and fabricated power of attorney, the applicant sold the land. Hence, FIR is filed. 7. Plank of main allegations are that all three documents ie. power of attorney, sathakat and kabja receipt, signature of complainant is forged and mainly on this averments, complainant has lodged questioned FIR. Hence, FIR is filed. 7. Plank of main allegations are that all three documents ie. power of attorney, sathakat and kabja receipt, signature of complainant is forged and mainly on this averments, complainant has lodged questioned FIR. It is not in dispute that FSL report carried out pursuant to order passed by this Court comes in favour of the applicants and signature on all the documents belongs to the complainant. Table is turned in favour of the applicants. At this stage, let be refer to the findings of Co- ordinate Bench recorded in order dated 04.08.2018, which reads as under :- "12. Regard being to the above submission and upon the perusal of the FIR at Annexure A, prima facie, it appears that that the FIR was lodged on 01.08.2018 in respect of alleged incident which took place way back on 22.12.2000. It further appears that the Suit being Special Civil Suit No.347 of 2008 is also filed by the complainant in the year 2008 before the learned Principal Civil Judge, Surat, by raising contentions to cancel the forged Power of Attorney. The complainant has also prayed for injunction by filing Exhibit 5 application but as submitted by learned senior counsel Mr. Oza, the said application is still pending and till the date, no injunction is granted in favour of the complainant by the concerned Civil Court. It further appears that in para 8 of the order passed by the Coordinate Bench in Special Criminal Application No.9890 of 2017 dated 26.02.2018 and the same is confirmed by the Hon'ble Supreme Court and in view of above referred observation, the applicant is permitted to file application under Section 482 of the Code of Criminal Procedure along with other remedies in the event of filing of such FIR. It also appears that the Dena Bank has also given certificate which is annexed at Annexure D at page 40 dated 15.06.2005. The contents of the said certificate are reproduced herein below: "15th June, 2005. To, Shri Parvatbhai M. Kakadia, 3rd Floor, Kruti Shopping Centre, Adajan Road, Surat. Tel. No.2685666 – 2685777 Dear Sir, Ref.: Your inquiry for cheque No.890639 of your S.B. A/c. No.7619 with us. The contents of the said certificate are reproduced herein below: "15th June, 2005. To, Shri Parvatbhai M. Kakadia, 3rd Floor, Kruti Shopping Centre, Adajan Road, Surat. Tel. No.2685666 – 2685777 Dear Sir, Ref.: Your inquiry for cheque No.890639 of your S.B. A/c. No.7619 with us. With reference to your undated application regarding the above said subject, we hereby inform you through our record that a Cheque No.890639 dated 30.12.2000 for Rs.5,14,000/- (Say Rupees Five Lac Fourteen thousand only) favouring Zinabhai Gopalbhai of your S.B. A/c. No.7619 with our branch presented in clearing on 02/01/2001 through BANK OF INDIA, Piplod Branch, Surat to debit the A/c. And debited the amount on 02/01/2001. Thanking you, FOR DENA BANK Surat (Vishal Nagar) Officer” 13. Over and above, from the possession receipt, it appears that the land in question was sold out in the consideration of Rs.26 Lakhs and also from the agreement to sell, it is reflected from page 33, that the complainant received paid the amount of Rs.26 Lakhs in following manner: In December, 2012, Rs.11,00,000/- was paid in cash In December, 2012, Rs.9,86,000/- was paid in cash On 30.12.2012, a cheque being No.890639 for Rs.5,14,000/- 14. In light of above facts and circumstances, this Court is of the view that the matter deserves consideration. Hence, Rule returnable on 26.11.2018. Learned APP waives service of Rule on behalf of the respondent State. 15. In the meantime, no coercive steps qua the present applicant, however, the investigation shall continue with respect to disputed documents. The documents alleged to have been forged by the complainant like Power of Attorney and other relevant documents are directed to be sent to Forensic Science Laboratory (FSL) by the Investigating Officer at the earliest. The Investigating Officer is directed to call for the report from the FSL on or before the returnable date. Direct service is permitted." 8. Even prima facie, Co-ordinate Bench recorded that sale consideration was received by complainant, which was confirmed by receipt issued by Dena Bank. It is equally undisputed that revenue proceedings which was started in the year 2005 (page no.76 to 78) culminated by way of order passed by Co-ordinate Bench in Special Civil Application No.8213 of 2016 dated 27.02.2019 comes in favour of the applicants. Simultaneously, NA proceedings comes in favour of the applicants by way of order dated 27.02.2019 passed in Special Civil Application No.8214 of 2016. Simultaneously, NA proceedings comes in favour of the applicants by way of order dated 27.02.2019 passed in Special Civil Application No.8214 of 2016. Civil Suit No.347 of 2008 filed by the complainant remained unattended throughout and there were three unsuccessful previous attempt made by complainant before filing of questioned FIR. All these evidence on record appears that false picture was painted against the applicants by way of questioned FIR. 10. This Court may gainfully refer to the following observations of this Court in the case of State of Haryana v. Bhajan Lal [ 1992 Suppl (1) SCC 335 ], and the law laid down therein has been consistently followed. In para 102, the Hon’ble Apex Court held as under :- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (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 in the first information report and other materials, if any, accompanying the FIR 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. (3) 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. (3) 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. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) 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. (6) 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. (7) 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." 10.1. In the present case, sub-para 1 and 3 of para 102 of Bhajan Lal (supra) is attracted. 11. For the reasons stated above, the applications are allowed. The impugned FIR being C.R.No.I-276 of 2018 registered with Khatodara Police Station, Surat as well as all consequential proceedings initiated in pursuance thereof are hereby quashed and set aside qua the applicants herein. Rule is made absolute. Direct service is permitted. 12. One more aspect which requires to be noted that complainant who is plaintiff in Special Civil Suit No.347 of 2008 pending before the learned Trial Court concerned has expired 23.08.2023, if heirs are not brought on record within stipulated time period, needless to state that learned Trial Court concerned shall have to dispose of the suit as abated.