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2025 DIGILAW 655 (GUJ)

Bharatkumar Maganbhai Patel v. State Of Gujarat

2025-07-04

J.C.DOSHI

body2025
ORDER : J. C. DOSHI, J. 1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for Quashing and Setting aside the proceedings of impugned Complaint being I-case No. 06/2012 (C.C. No. 5792/2012) and order issuing process against the petitioners, which is pending before Additional Chief Judicial Magistrate Court at Gandhinagar and further be pleased to call for the record and proceedings of the said case. 2. Brief facts of the case are as under:- 2.1 The respondent no. 2 had purchased the land bearing survey No. 670/6 admeasuring 5969 sq. mtrs. Of village Uvarsad, Ta. Dist. Gandhinagar from accused no. 1 i.e. Bharat Kumar Maganbhai Patel on 26-06-2006 by executing registered sale deed. That the entry was mutated of the said transaction in the revenue record and certified on 18-11- 2006.That accused no. 1 and 2 had executed one letter of inheritance in office of accused no. 8 i.e. Talati cum Mantri with the help of accused no. 6 and 7 those who were stood as panchas and on the basis of said letter the entry being 10750 was recorded in the revenue record of the said land in the office of accused no. 9 who is Circle Officer. That it is alleged that this act was done by the accused with the help of each other. The moment he comes to know about the said thing, the complainant had immediately brought notice to the accused no. 9 and accordingly the said entry no. 10750 had been cancelled by recording entry no. 11102. 2.2 That after recording the names by letter of inheritance, the accused no. 1 and 2 have sold the said land to accused no. 5 through their power of attorney which was executed in favor of accused no. 3 and 4 i.e. Paragbhai and Ishwarbhai. The said sale deed was registered on 02-08-2007. 2.3 That accused no. 1 and 2 have accepted the amount of rupees 2 lacs from the complainant by executing sale deed in his favor and later on with the intention to snatch away the said land and with the help of accused no. 3.4.6.7.8 and 9, created the forged government record and the accused persons have committed an offence of breach of trust and cheating and accordingly prayed for legal action against the accused persons. 3.4.6.7.8 and 9, created the forged government record and the accused persons have committed an offence of breach of trust and cheating and accordingly prayed for legal action against the accused persons. 2.4 That the learned trial court had recorded the verification of the said complaint on 16-02-2012 and sent the complaint for police inquiry under section 202 of the Code. That Zupon inquiry the report had placed on record by the police and the contents of complaint. The said report was submitted on 11- 06-2012. There after the learned trial court has examined the report and other materials submitted along with report and ultimately come to the conclusion that prima facie the offence is made out for the alleged section and accordingly the order of issuance of process under section 204 has been passed on 21-11-2012. 2.5 That in response to the said process, the accused i.e. present petitioners have appeared before the learned trial court. That during the said time with the interference of various persons, the dispute was settled between the complainant and present petitioners as the dispute which was stated in the complaint was not in existence since the said sale deed dated 02- 08-2007 has been got cancelled by executing another sale deed of cancellation deed in respect of the said land dated 02-01-2013. The said cancellation deed has been registered in the office of Sub-Registrar as Sale cancellation Deed being 89 of 2013. 2.6 That after cancellation of the said disputed sale deed dated 02-08-2007 on 02-01-2013, joint application was submitted by the respondent no. 2 i.e. complainant and present petitioner no. 1 to 5 and accused no. 8 and 9 on 02-01-2013. That in the said application it has been clearly stated by both the parties that the accused persons have executed reverse sale deed with out any pressure and receipt of the said reverse sale deed was handed over to the complainant. It has been further stated in the said complaint that both the parties have entered in to the compromise and the complainant does not want to proceed further with the complaint and accordingly prayed to pass an order in the interest of justice. 2.7 That the said application was exhibited as Exh.-4 and a part of the impugned complaint. That on the said application, the learned trial court had passed an order as " Application is adjourned for hearing". 2.7 That the said application was exhibited as Exh.-4 and a part of the impugned complaint. That on the said application, the learned trial court had passed an order as " Application is adjourned for hearing". There after the matter was listed twice before the court but deliberately, the complainant has remained absent in the court proceedings though he was aware about the order of the court mentioned herein above. That after more then two months have passed, the intention of the respondent no. 2 has been changed and just with a view to create pressure with intent to extort huge money from the petitioners, the respondent no. 2 has taken back the said application from the court and made an endorsement as "NOT PRESS" on 21-03-2013, with out there being any prior permission or leave of the learned trial court. The learned trial court has also taken the said conduct of the complainant very lightly and disposed of the said application by passing an order as "complainant as well as his advocate not pressed the said application and hence, the same is disposed of ". 2.8 Hence, present petition. 3. Learned advocate for the petitioners would submit two fold submissions. He would firstly submit that a joint request has been made to the learned Additional CJM, Gandhinagar in Criminal Case No.5792 of 2012 that the parties have arrived at compromise and settled the dispute and for that they have tendered withdrawal pursis on 2.1.2013 (Annexure C). He would further submit that the learned trial Court was required to note upon the said withdrawal pursis on the same day. Instead, the learned trial Court kept the said for withdrawal pursis for hearing and permitted the parties to resile from their agreement and later on, the complainant resile from the statement made in Annexure C and not pressed the application from his side, which was moved to settle the dispute and withdraw the criminal case. He would further submit that the parties have no right to resile from the compromise and withdrawal pursies once tendered before the court and turn back from the said compromise and withdrawal pursies once getting the fruit of the compromise. Apart from the aforesaid submission, he would further submit that the essential ingredients of offence alleged in the private complaint is not attracting in the matter. Apart from the aforesaid submission, he would further submit that the essential ingredients of offence alleged in the private complaint is not attracting in the matter. He would further submit that there is no cheating in executing the sale deed. He would further submit that according to the complaint, the land, which was sold sold to the complainant, later on sold again to some third-party through a power of attorney by the accused. He would further submit that this act of the accused would not attract offence under sections 420, 465, 467, 468of the IPC. 3.1 Perusal of the judgement in case of Mohammad Ibrahim Vs. State of Bihar , (2009) 8 SCC 741 , learned advocate Mr. Dewal would submit that the sale deed, which was questioned by way a private complaint, was reversed in favour of the complainant and later on the complainant has sold said property to the partnership firm where the petitioner No.3 is one of the partners. He has placed on record copy of sale deed and the copy of partnership deed and in such a way, it was submitted that all the circumstances show that the parties have amicably settled the dispute and now, one of the petitioners through its partnership firm is owner of the disputed property. Therefore, there is no point in sending the petitioners to face the trial for the alleged defraud of the immobile property, which they owe. 3.2 Upon such submission. Learned advocate Mr. Dewal requests to allow this petition. 4. Per contra, learned advocate Mr. BC Dave appearing for the complainant could not deny execution of the registered sale deed dated 26th July 2019 in favour of the the petitioner No.3, who is a partner of partnership firm, namely Caster and Co. With above submissionz, he would submit to pass necessary order. 5. Learned APP adopting the arguments of learned advocate for ther private respondent, requests to pass necessary order. 6. What could be deduced from the arguments of learned advocates for both the parties that immovable property for which a private complaint is filed by way of inquiry case No.6 of 2012 is now lying in the hands of petitioner No.3. 5. Learned APP adopting the arguments of learned advocate for ther private respondent, requests to pass necessary order. 6. What could be deduced from the arguments of learned advocates for both the parties that immovable property for which a private complaint is filed by way of inquiry case No.6 of 2012 is now lying in the hands of petitioner No.3. It is alleged that this disputed property was sold to the complainant by registered sale deed by the petitioner No.1 and 2 and mutation entry to that effect was also entered in favour of the complainant, but later on the petitioners who are accused Nos.1 and 2, executed one power of attorney in favour of accuse Nos.3 and 4 and hands in glow with other accused, the same has been sold to accused No.9. 7. Considering the overall facts and circumstances and having gone through the new investigation papers, the competent civil court, prima facie noted that the immovable property, which is owned by the complainant, has been sold by the accused in connivance with each other and thereby, they have committed the offence of cheating by creating forged documents and forgery, etc., and therefore the learned trial Court issued process under aforestated sections. What also could be undeniable that the cancellation of sale deed was executed and as such, the immovable property, which is disputed in the private complaint, is fallen in the hands of the complainant, however, later on, the complainant in the year 2019, pending this petition, sold this property to the partnership firm Caster and Co., where the petitioner No.3 is one of the partners. In view of the subsequent development, which is established from the documents placed on record. I find no reason to send the petitioners to face the trial and therefore continuation of proceedings against the petitioners is abuse of process of law. 8. 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." 8.1 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. Resultantly, present petition is allowed and proceedings of impugned Complaint being I-case No. 06/2012 (C.C. No. 5792/2012) and order issuing process against the petitioners, which is pending before Additional Chief Judicial Magistrate Court at Gandhinagar are hereby quashed and set aside.