1. Both these applications arise out of the same first information report and facts are also similar. Hence, the matters were heard together and are disposed of by this common judgment.
2. By these applications under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), the applicants have prayed to quash the first information report registered vide Naranpura Police Station I – C.R. No.244/2008 for the alleged offences punishable under sections 420, 468, 471 and 114 of the Indian Penal Code, which has been lodged by the respondent No.2 herein against the applicants of both these applications.
3. Mr. S. V. Raju, learned advocate appearing on behalf of the applicants in Criminal Miscellaneous Application No.5974 of 2008 submitted that the applicants are the father, first cousin and brother-in-law of the first informant. Inviting attention to the allegations made in the first information report, it was pointed out that as per the say of the first informant in the first information report itself, land admeasuring 14,362 square yards had been sold by the first informant and the applicants, in respect of which he had signed various documents as stated in the FIR. Referring to the sale deed dated 2.4.2004 executed by the first informant, it was pointed out that the said plot of land had been sold by the first informant to Devnandan Commercial & Cooperative Housing Society Ltd. (hereinafter referred to as “Devnandan Society”) as the sole owner thereof. It was submitted that pursuant to the execution of the sale deed, the first informant has pocketed a huge amount of rupees ninety three lakhs and thereafter, with a view to extract more amount of money, has lodged the present FIR. Inviting attention to the contents of the FIR, it was pointed out that the documents in relation to which the offence is alleged to have been committed, are all subsequent to the date of the execution of the sale deed whereby, the right, title and interest in the said lands came to be vested in the above referred Devnandan Society and as such, the first informant has no right, title or interest in the same. Referring to the accusations made in the FIR, it was submitted that there is no basis for arraigning the applicants as accused, inasmuch as no specific role has been attributed to the applicants nor is it the case of the first informant that the applicants herein have forged his signature on the documents in question. Referring to the documents on which the signatures of the first informant are alleged to have been forged, it was submitted that it cannot be said that anyone has signed on behalf of the first informant. It was submitted that merely the names of the applicants and the first informant have been written thereon, but the same does not reflect his signature. It was, accordingly, submitted that there is no forgery and there is nothing to show that the first informant's signature has been affixed on the said documents. It was further submitted that insofar as the applicant No.3 – Nikul Navinchandra Patel is concerned, he is not even a signatory to any of the documents, nor does he have any connection with the lands in question, however, the second respondent merely wants to settle civil disputes by misusing the criminal machinery and has needlessly roped in persons who are in no manner concerned with the subject lands. Referring to the allegations made in the FIR, it was submitted that the same are vague and general allegations and what has to be seen is the cumulative effect of all the allegations made therein.
3.1 It was submitted further in respect of the civil disputes between the parties, the first informant has instituted a civil suit being Special Civil Suit No.96 of 2006 in the Court of the learned Principal Senior Civil Judge, Ahmedabad. In the said suit, the first informant had also filed an application at exhibit-5 which came to be decided against him. Being aggrieved, the first informant carried the matter in revision before this Court, but failed. It is thereafter that the first informant has lodged the present first information report with a view to wreak vengeance against the applicants herein.
3.2 Referring to the sections of the Indian Penal Code which have been invoked against the applicants, the learned counsel pointed out that in the facts of the present case, the offence under section 420 IPC is clearly not made out inasmuch as, for the purpose of attracting the said section, there has to be a false representation right from the inception, whereas there is no such allegation in the entire first information report and as such, no case of cheating is made out as the ingredients of section 420 are clearly absent. Reliance was placed upon the decision of the Supreme Court in the case of B. Suresh Yadav v. Sharifa Bee and another, (2007) 13 SCC 107, for the proposition that for the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance.
3.3 As regards the offences punishable under sections 468 and 471 IPC, it was submitted that it is the case of the first informant that the signatures on the AUDA papers are not his. However, the first informant does not say that the other signatures are that of the applicants herein. It was submitted that from the time that the first informant executed the sale deed in favour of the above referred Devnandan Society, he ceased to have any right, title or interest in the said land. Under the circumstances, no loss or prejudice is caused to him even in case his signatures had been put on the said papers. It was submitted that for the purpose of making out an offence of forgery, the ingredients of section 463 IPC are required to be satisfied, namely, that the forged document has been made with an intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed. It was submitted that in the facts of the present case, there is no intent to cause any injury to any person, nor is there any intent to commit fraud and as such, the provisions of sections 468 and 471 IPC also would not be attracted.
3.4 Reliance was placed upon the decision of the Supreme Court in the case of Inder Mohan Goswami & another v. State of Uttaranchal and others, 2007 (12) Scale 15, wherein the Court had held that for commission of the offence under section 467 IPC, the following ingredients are essential, (i) the document in question is forged; (ii) it is the accused who has forged it; (iii) the document is one of the kinds enumerated in the said section. It was further held that the court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused. The decision of the Supreme Court in the case of Dr. Vimla v. The Delhi Administration, AIR 1963 SC 1572, was cited for the proposition that the expression “defraud” involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non- pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. It was submitted that in the facts of the present case, there is no injury caused to the first informant so as to fall within the ambit of “defraud” and as such, no offence under sections 468 and 471 IPC can be stated to have been made out in the facts of the present case. Reliance was also placed upon the decision of the Supreme Court in the case of Parminder Kaur v. State of Uttar Pradesh and another, (2010) 1 SCC 322, for the proposition that for the purpose of falling within the ambit of forgery as defined under section 463 IPC, damage or injury should be caused to public or anybody or it should support the claim or title or it should cause any person to part with property and there should be an intention to commit fraud. Secondly, if the document is to be altered, it has to be for some gain or with such objective on the part of the accused. Merely changing a document does not make it a false document. Section 471 applies only in case of the use of a forged document as a genuine document. Adverting to the facts of the present case, it was submitted that it is not as if the documents in question are forged. The only allegation is that the signature of the first informant thereon is forged. However, in the absence of any criminal intention or an intention to gain, no offence as alleged can be stated to have been made out under the said section. Reliance was placed upon the decision of the Supreme Court in the case of Chandrapal Singh and others v. Maharaj Singh and another, (1982) 1 SCC 466 and more particularly paragraph 14 thereof, wherein the complainant had lost in both the courts in rent control proceedings and had thereafter filed a criminal complaint, the court observed that the complainant had lost in both the courts in the rent control proceedings and had now rushed to the criminal court. This itself speaks volumes. Add to this, the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law. The learned counsel submitted that in the facts of the present case also, the first informant has instituted the above referred civil suit, however, on the application for interim injunction, the court had passed an order rejecting his application, whereafter the present first information report has been lodged which amounts to an abuse of the process of law.
3.5 In conclusion, it was submitted that in the facts of the present case, the first informant had sold his share of land bearing survey No.190 of Village Ghatlodiya and that certain formalities were to be carried out at AUDA. The fact that someone else has signed the documents in place if the first informant, does not cause any prejudice to him inasmuch as, he no longer has any right, title or interest in the said land. It was submitted that essentially, there is a civil dispute between the father and the son in respect of which, the first informant has filed the present first information report, which is a vexatious and malicious prosecution and as such, deserves to be quashed and set aside.
4. Mr. P. M. Thakkar, Senior Advocate, learned counsel for the applicants in Criminal Miscellaneous Application No.6007 of 2008 submitted that the background of the case is that there is a dispute between the father namely, accused No.2 and the first informant. A civil suit came to be instituted by the first informant against the father and uncle as well as Devnandan Commercial & Cooperative Housing Society Ltd. and others. The application exhibit-5 seeking interim injunction filed in the said suit came to be rejected. The appeal from order against the order passed by the trial court came to be dismissed; and the review application seeking review of the said order also came to be rejected. Thereafter, the present first information report has been lodged alleging commission of the above referred offences. Inviting attention to the record of the application, it was pointed out that the applicants therein had purchased land admeasuring 5173 square yards of sub-plot No.B of survey No.190 by a registered sale deed dated 2.4.2004. The entire amount under the said sale deed amounting to rupees ninety three lakh has been paid to the first informant and has been credited in his account. Attention was invited to the sale deed executed by the first informant to point out that the payment of the amount of rupees ninety three lakhs is admitted in the sale deed itself and that subsequently, the first informant and his wife have also filed an affidavit acknowledging the execution of the above referred sale deed as well as the receipt of the amount of rupees ninety three lakhs towards execution of the same. It was submitted that survey No.190 of Ghatlodiya is a big parcel of land and individual holders, all belonging to the same family have sold their individual shares by executing separate sale deeds. The attention of the court was drawn to the various sale deeds executed by the father, uncle, mother and cousin of the first informant in favour of the applicants herein. Referring to the FIR, it was pointed out that despite the aforesaid position, in the FIR, the first informant has stated that land admeasuring 14,362 square yards is the ancestral property of the first informant and that he is jointly in possession thereof with his other family members. It was submitted that the first information report is lodged on 24.5.2008 whereas, by virtue of various sale deeds executed between 2.4.2004 to 18.6.2005, land totally admeasuring 14,362 square yards of survey No.190 of Ghatlodia had been sold to the applicants herein, after which, the first informant and his family members ceased to have any right, title or interest in the said land. Despite which, a categorical assertion has been made in the first information report to the effect that the said land is still being held by the first informant along with his family members. Referring to the judgment of the trial court on the application exhibit-5, it was pointed out that the trial court has observed that constructions have already been put up on the said land and allotments have already been made to individual members. It was submitted that under the circumstances, it is apparent that the first informant has not come out with correct facts even in the first information report. It was argued that, thus, there is suppression of material facts inasmuch as, the first informant has not mentioned the fact regarding having received rupees ninety three lakhs towards sale of the lands held by him as well as the fact regarding the civil dispute which was pending in the civil court, and has filed the present first information report saying that he has executed the sale deed, but not signed the documents before AUDA. It was submitted that Devnandan Society has purchased the entire parcel of land and what is subject matter of the first information report are the documents alleged to have been executed in the year 2004 alleging that he has got less than his rightful share out of the sale proceeds from the sale of the said lands. Reference was made to the decision of the Supreme Court in the case of Kishan Singh (Dead) Through LRs v. Gurpal Singh and others, (2010) 8 SCC 775, for the proposition that prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the first information report does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. The court held that in cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. It was submitted that in the facts of the present case, in the proceedings before the civil court, the first informant was well aware that constructions have already been made on the lands in question and that the houses have been allotted to the members, despite which, he has waited till the year 2008 and without any plausible reason for seeking the documents in question, made an application before the AUDA under the Right to Information Act, seeking copies of documents submitted for the purpose of obtaining permission for putting up constructions on the lands in question and at a belated stage, lodged the first information report alleging that the signatures have been forged.
4.1 Inviting attention to the allegations made in the FIR, it was submitted that the first informant having sold the property, in the first information report also says that he has executed certain documents but that upon checking he has found that some other documents have been signed by someone else in his place. It was submitted that at this stage, there was no need for him to check the said documents with AUDA except with a view to wreak vengeance. It was submitted that the first informant is frustrated litigant who has failed in civil proceedings and that with a view to wreak vengeance upon his family members; he has lodged the present FIR. It was submitted that it would not be possible for him to charge his family members without impleading the Developer and Chairman and hence, he has impleaded the present applicants along with his family members as accused in the FIR.
4.2 Inviting attention to the documents referred to in the FIR, it was submitted that the said documents have been executed between June to October 2004, at which point of time the first informant and his family members were together and a series of sale deeds came to be executed from April 2004 to June 2005 and the documents came to be submitted to AUDA. That ownership of the first informant's property had passed in the year 2004, and not a single document in respect of which the offence is alleged to have been committed is before the said date. It was submitted that there is no dispute between Devnandan Society and the first informant. It was submitted that when the first informant has alleged the offences under sections 420, 468 and 471 IPC, he has to show the court that the existence of the idea to commit fraud on the part of the Society. It was submitted that with a view to spite his family members, the first informant has lodged the first information report in question and that the genesis of the first information report is the family dispute. The first information report has been filed in respect of the documents with which the first informant has no concern and that he is using the criminal machinery for settling his personal scores. It was submitted that the criminal machinery is not to be used to wreak vengeance and that powers under section 482 of the Code are meant for quashing such mala fide proceedings. Reliance was placed upon the decision of the Supreme Court in the case of Jibrial Diwan v. State of Maharashtra, (1997) 6 SCC 499, wherein it has been held that section 471 IPC enjoins that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 465 provides that whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The words “dishonestly” and “fraudulently” have been defined respectively in sections 24 and 25 of the Indian Penal Code. “Dishonestly” has been defined to mean whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”. The word “fraudulently” had been defined to mean that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. The Supreme Court in S. Dutt (Dr.) v. State of U.P., AIR 1966 SC 523, has explained the words “intent to defraud” as being not synonymous with the words “intent to deceive”. The court held that it requires some action resulting in a disadvantage which but for the deception the person defrauded would have avoided. Referring to the facts of the present case, it was submitted that the first informant should be in a position to demonstrate that he would have been able to avoid some disadvantage but for the deception which is alleged. In the facts of the present case, by execution of the documents in respect of which fraud is alleged, no loss has been caused to the first informant and as such, the prosecution being malicious deserves to be quashed and set aside.
5. Vehemently opposing the applications, Mr. I. H. Syed, learned advocate appearing on behalf of the respondent No.2 – first informant invited attention to the affidavit-in-reply filed by the respondent No.2 as well as the documents annexed thereto. Referring to the plaint of Civil Suit No.205 of 2008 instituted by the family members of the first informant, it was pointed out that in the year 2008 it was the stand of the family members of the first informant that he is a joint owner of the said property, which is contrary to the contention that upon execution of the sale deeds in favour of Devnandan Society the first informant and his family members ceased to have any right title or interest in the subject lands. Dealing with the contention that the first informant having failed in civil proceedings has thereafter lodged the present first information report with a view to wreak vengeance, it was submitted that the dispute regarding survey No.190 is still pending before the civil court inasmuch as the Civil Suit No.93 of 2006 is not yet adjudicated and it is only the interim injunction application that has been rejected. Under the circumstances, it cannot be said that the first informant has lost in civil proceedings. Referring to the decisions of the Supreme Court on which reliance has been placed by the learned counsel for the applicants, it was submitted that in those cases, civil proceedings have come to an end, whereas in the present case, merely because the application for interim relief has been rejected, it cannot be said that the first informant has lost in civil proceedings. Referring to the allegations made in the FIR, it was submitted that the first informant has produced documents alleging that the signatures thereon are not his signatures. It is the case of the applicants that the first informant had ceased to have any right, title or interest in the lands in question, he, having sold the same to Devnandan Society. It was submitted that if that be the position, there was no need of forging his signatures on the said documents. It was urged that the allegations made in the first information report can be tested during the course of investigation and that in case the first information report is found to be false, the police can file a summary report even with prosecution.
5.1 As regards the decision of the Supreme Court in the case of Dr. Vimla v. The Delhi Administration (supra), on which reliance has been placed by the learned counsel for the applicants, it was submitted that this is a case wherein investigation was concluded, charge sheet came to be submitted and it had actually come on record as to whether anyone was deprived or not. Thereafter a full- fledged trial took place at the conclusion of which the accused was acquitted and thereafter in appeal, conviction came to be recorded. Under the circumstances, it is only after investigation is carried out that the allegations made in the first information report can be tested. Attention was invited to the various documents which were submitted in the office of AUDA containing the first informant’s forged signatures, to submit that prima facie allegations of forgery have been made out and that the decision of the Supreme Court in the case of Dr. Vimla v. The Delhi Administration (supra) was rendered in different set of facts. According to the learned counsel, the Supreme Court in the said case concluded that there was no gain, whereas in the facts of the present case, the proceedings are at a premature stage and as to whether there is a gain or loss is yet to be investigated.
5.2 In support of his submissions, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Kamaladevi Agarwal v. State of W. B. and others, (2002) 1 SCC 555, for the proposition that the criminal cases have to be proceeded with in accordance with the procedure as prescribed under the Code of Criminal Procedure and the pendency of a civil action in a different court even though higher in status and authority, cannot be made a basis for quashing of the proceedings. Reliance was also placed upon the decision of the Supreme Court in the case of M. Krishnan v. Vijay Singh and another, (2001) 8 SCC 645, for the proposition that in a criminal court, the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. It was held that where factual foundations for the offence have been laid down in the complaint, the High Court should not hasten to quash criminal proceedings merely on the premise that one or two ingredients have not been stated with the details or that the facts narrated reveal the existence of commercial or money transaction between the parties. It was contended that in the facts of the present case, there is a specific allegation that the signature of the first informant is forged and that investigation would reveal whether or not the signatures are forged.
5.3 The decision of the Supreme Court in the case of State of A. P. v. Golconda Linga Swamy and another, (2004) 6 SCC 522, was cited for the proposition that the powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. It was urged that in the present case, the facts are incomplete and material is insufficient because the investigation is yet to be carried out. Reference was made to the above decision of the Supreme Court wherein it has also been held that if it appears that on a consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the first information report that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. The learned counsel, accordingly, submitted the mala fides cannot stifle the investigation. The investigation is still at a preliminary stage and the details are yet to come on record, under the circumstances there is no warrant for quashing the first information report at this stage. The decision of the Supreme Court in the case of State of Orissa and another v. Saroj Kumar Sahoo, (2005) 13 SCC 540, was cited for the proposition that at the stage when the investigation was incomplete, it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under section 482 CrPC, it is not permissible for the court to act as if it was a trial court. Even when charge is framed at that stage, the court has to only prima facie be satisfied about the existence of sufficient ground for proceeding against the accused. Reliance was also placed upon the decision of the Supreme Court in the case of T. Vengama Naidu v. T. Dora Swamy Naidu and others, (2007) 12 SCC 93, for the proposition that there is no question of considering the merits of the allegations contained in first information report when the investigation is in progress. Under the circumstances, the first information report could be quashed only and only if there appears to be no offence spelt out therein. It was submitted that in the facts of the present case, prima facie when the offences are spelt out in the first information report, the allegations are required to be tested by way of investigation and at this premature stage of investigation, discretion may not be exercised under section 482 of the Code.
6. In the backdrop of the facts and contentions noted hereinabove, it may be pertinent to refer to the contents of the first information report lodged by the respondent No.2 – first informant. It is the case of the first informant that he is engaged in the business of sale and purchase of land. That land bearing survey No.190 of Ghatlodia village admeasuring 14,362 square yards is his ancestral land and that at present the occupants thereof are : (1) Yadukant Manilal Patel, (2) Harshad Manilal Patel, (3) Naimesh Yadukant Patel, (4) Maltiben Yadukant Patel, (5) Ilaben Harshadbhai Patel and (6) Mihirbhai Harshadbhai Patel (the first informant); that in the Government records, the said properties are standing in their names and the taxes are also being paid by them jointly; and that the said property has been registered as final plot No.144 of Ahmedabad Urban Development Authority's Ghatlodia- Chandlodia-Sola T. P. Scheme No.18. About eight days prior to 15.2.2003, his father Harshadbhai, his paternal uncle's son Naimesh, his brother-in-law Nikul Navinchandra Patel who resides at Tulsibaug Society Bungalows, Next to Police Staff Quarters, Ambawadi, Prabodhchandra Parikh, Chartered Accountant, resident of the bungalow opposite Prakruti Flats, Sanjivani Hospital Road, Paldi, Rasiklal Vadilal Daghdi, Advocate, resident of J. B. Tower, 2nd Floor, Next to Kabir Restaurant, Opposite T. V. Tower, Drive-in Road, Ahmedabad, came to his house at about 9 to 10 O'clock at night and tried to convince him to sell their lands bearing Ghatlodia survey No.190 and that, as a railway over bridge was to be constructed adjoining the same, Ramjibhai, the organizer of the Society was ready to give Rs.8000/- thousand (sic), hence, he had shown willingness to sell the same and was told that thereafter in all Government offices, office of AUDA, Collector's office as well as other offices, it may be necessary to sign in respect of the said property, whereupon all the co-owners will be required to go together and shall have to sign the concerned document and that any document executed without the joint consent of all six co-owners or not bearing the signatures of all the six owners shall not be admissible.
6.1 On 15.12.2003, he had gone to the Notary B. J. Thaker for the purpose of selling their aforesaid co-ownership land bearing survey No.190 admeasuring 14,363 square yards and before the Notary, he had signed (i) Affidavit (underground tank), (ii) Tree plantation affidavit, (iii) Undertaking to the effect that the common plot shall be maintained, (iv) Undertaking to the effect that the building shall be constructed in accordance with the plans submitted, (v) Affidavit in terms of the Urban Land Ceiling Act, and that on 16.1.2004, the possession receipt of the said property was to be produced before AUDA, which he had signed before the Notary. On 21.4.2004, the height elevation plan and site plan were submitted wherein sub- plot No.2 was mentioned. He had signed both the plans, except which, he had not signed any other plan or document.
6.2 On 31.3.2008, he had personally gone to the AUDA office, at Usmanpura, Ahmedabad and upon coming to know, he had demanded copies of survey No.190, T. P. Scheme No.18, final plot No.144 part P. R. M. Number, notice dated 18.7.2004 as well as all maps and papers of files, and that the said office had, vide letter dated 16.4.2008, given the same and 121 legal size pages and 34 maps statements had been furnished, upon perusal of which he came to know that in the following documents and statements, some other person had signed and a false record had been created and submitted to the AUDA office which are as follows :
(1)Proceedings report of the Building plan scrutiny form dated 27.10.2004.
(2)Undertaking of the notice registration No.47/08/2004. (3)Undertaking before the Notary dated 24.7.2004. (4)Application Form of the AUDA which is submitted by Nand Builder and the possession receipt.
(5) AUDA Form No.2(A) Notary registration No.3155/04 dated 17/06/2004, Architect Designs Six Form No.2,
(6) Block (B) Registrar, Structural Design bearing Notary Serial No.3156/04 dated 17.06.2004
(7) Form No.2 Block (C) Register clearance Organizer Site Supervisor bearing City:5157/04 dated 17/06/2004 signed by the Notary.
(8) Home No. Block (D) present certificate (Regulation No.1) Letter dated 17.06.2004 signed by the Notary.
(9) Affidavit ULC Serial No.3159, affidavit statement. (10)Possession Receipt dated 17.06.2004 bearing Notary Serial No.3660/04.
(11) Affidavit dated 17.06.2004 bearing Notary Serial No.3161/04.
(12) Affidavit dated 17.06.2004 bearing Notary Serial No.3162/04 (Letter of T. P. deduction).
(13) Copy of the agreement dated 17.6.2004 as regards handing over advance possession for road reservation bearing Notary Serial No.3163/04.
(14) Copy of the agreement dated 17.6.2004 as regards handing over advance possession bearing Notary Serial No.3164/04.
(15) Copy of the agreement dated 17.6.2004 as regards handing over advance possession land allotted to the other land owner under the Scheme bearing Notary Serial No.3165/04.
6.3 In the aforesaid record as well as thirty maps, his false, duplicate and fabricated signature as per his specimen signature have been made in the record. Hence, his co-
owners Naimish Yadukant Patel and Harshad Ambalal Patel, his brother in-law Nikul Navinchandra Patel, and Ramjibhai Parsottambhai Patel, Chairman of Devnandan Commercial & Housing Society put his false signatures on the above documents in respect of land of his ownership bearing survey No.190, situated in the sim of Ghatlodia village and in collusion with S. N. Thakkar, Proprietor of Nandan Builders & Developers, submitted the aforesaid documents and maps in the office of AUDA in respect of which he has lodged the complaint and seeks investigation. The reason for putting his false signatures on the documents submitted in the office of AUDA without his knowledge is that in respect of the said land, he was still to get a huge amount of his share and with a view not to give him the same, such fabricated documents have been submitted in the office of AUDA and on the basis of these documents, the land has been sold.
7. The allegations made in the above referred first information report have to be examined in the light of the admitted facts which have come on record. It is an admitted position that vide registered sale deed dated 2.4.2004 executed by the first informant in favour of Devnandan Commercial & Housing Cooperative Society Ltd., land admeasuring 5173 square yards of sub-plot – B of survey No.190, final plot No.144, T. P. Scheme No.18 came to be transferred in favour of the said Society for a consideration of Rs.93 lakhs. The sale deed itself mentions the receipt of Rs.93 lakhs vide various cheques dated 1.4.2004, 30.6.2004 and 31.8.2004. A perusal of the recital in the sale deed shows that the said land is of the sole and absolute ownership of Mihir Harshadbhai Patel, the executor thereof. The first informant and his wife have also made an affidavit dated 2.4.2004 stating that the said land was of the ownership and possession of Mihir Harshadbhai Patel, HUF.
8. Vide sale deed dated 2.4.2004, Harshadbhai Matilal Patel (the first informant’s father) sold land admeasuring 1950 square yards out of land bearing survey No.190 of sub-plots No. C & G for an amount of Rs.35 lakhs to the said Society. Vide sale deed dated 17.7.2004, Ilaben Harshadbhai Patel (the first informant’s mother) sold 1400 square yards out of sub-plot No.A of survey No.190 for an amount of Rs.33,67,000/-. Vide sale deed dated 14.7.2004, Harshadbhai Matilal Patel sold 800 square yards out of land bearing survey No.190, sub-plots No.C and G-2 to the said Society for an amount of Rs.19,20,000/-. Vide sale deed dated 18.6.2005, Harshadbhai Matilal Patel sold 1300 square yards out of land bearing survey No.190, sub-plot No.G-2 and land admeasuring 1189 square yards of sub-plot No.C of survey No.190, total 2520 square yards, for an amount of Rs.61 lakhs. A total area of land admeasuring 14,362 square yards from survey No.190, accordingly, came to be transferred in favour of the Devnandan Society by the above referred sale deeds. Thus, it is apparent that the lands referred to in the first information report are the very same lands which have been sold vide various sale deeds by the first informant and his family members to the Devnandan Commercial & Cooperative Housing Ltd.
9. It cannot be gainsaid that, after the execution of the sale deeds in favour of “Devnandan Society”, the first informant and his family members ceased to have any right, title or interest in the said lands. The fact regarding execution of the sale deed dated 2.4.2004 by the first informant has not been denied by him. Prior to the execution of the said sale deed, the first informant had signed the documents detailed in paragraph No.3 of the first information report. Thereafter, it appears that there were differences between the family members in respect of the lands in question. Hence, the first informant instituted the above referred suit being Special Civil Suit No.96 of 2006 against (i) his father Harshabhai Matilal, (ii) his paternal uncle Yadukantbhai Patel, (iii) Regency Agency, (iv) Devnandan Commercial & Housing Society Ltd., and (v) Astha (Ghatlodia) Cooperative Housing Society Ltd., seeking a declaration that the sale deed dated 20.5.2005 executed by the defendant No.1 in favour of the defendant No.3 in respect of the survey No.295 of Sola, sale deed dated 18.6.2005 executed by the defendant No.1 in favour of the defendant No.4 in respect of 2520 square yards of survey No.190 of Ghatlodia, sale deed dated 18.6.2005 executed by the defendant No.2 in favour of the defendant No.4 in respect of 2520 square yards of survey No.190 of Ghatlodia and sale deed dated 25.4.2005 executed by the defendants No.1 and 2 in favour of the defendant No.5 in respect of 1720 square yards of survey No.46 of Ghatlodia are illegal, fabricated, null and void. Thus, out of the parcel of land admeasuring 14,362 square yards of survey No.190 of Ghatlodia which came to be sold by the sale deeds executed by individual members of the family of the first informant as referred to in the preceding paragraph, the first informant has challenged the execution of two sale deeds in respect of 2520 square yards each, in all 5040 square yards of Ghatlodia of survey No.190 in respect of which, his father and uncle had executed the sale deeds in favour of Devnandan Society contending that the same are ancestral properties of the first informant.
10. Thus, there is a basic contradiction in the averments made in the plaint and the allegations made in the first information report, wherein the first informant has stated that he has executed various documents for the purpose of selling their co-ownership land bearing survey No.190 admeasuring 14,362 square yards. Thus, the first informant was very well aware of and was a consenting party to the sale of 14,362 square yards of land of survey No.190 in favour of Devnandan Society at the relevant time when he had executed the documents enumerated in the first information report. Subsequently, he had instituted the aforesaid suit in the year 2006 raising disputes as regards the title of the lands sold by his father and uncle contending that the same are ancestral lands and challenged the sale deeds executed by them in favour of Devnandan Society. Thus, essentially the dispute is a family dispute, regarding the first informant's share in the land bearing survey No.190 of Ghatlodia. However, it is apparent that the entire land admeasuring 14,362 square yards has been transferred in favour of Devnandan Society pursuant to various sale deeds executed by different family members of the first informant, including the first informant. Thus, insofar as Devnandan Society is concerned, the said Society has paid the amount of consideration and has nothing to do with the apportionment of amount between the family members. It has also come on record that out of land admeasuring 14,362 square yards, the first informant had executed sale deed in respect of 5173 square yards as absolute owner thereof for a sum of rupees ninety three lakhs. Thus, out of the entire parcel of land, more than one-third thereof has been sold by the first informant as an absolute owner thereof to Devnandan Society.
11. It may be noted that all the documents in relation to which forgery is alleged are dated between April 2004 and October 2004 at which point of time, there does not appear to have been any dispute between the family members.
12. Besides, a perusal of the order dated 25.1.2007 passed by the trial court on the application exhibit-5 for interim injunction made by the first informant, shows that the building schemes have been executed on the said land and buildings are ready and possession of the flats and shops have been handed over to the members of the Society. The documents on which the first informant's signatures are alleged to have been forged, all relate to building plans and permission to construct on the land in question pursuant to which, constructions have been completed much prior to 25.1.2007. Hence, the first informant must have been well aware of the submission of necessary documents for obtaining necessary permissions from AUDA. Under the circumstances, there was no earthly reason for the first informant to apply for various documents submitted to AUDA as late as on 31.3.2008, after a period of more than one year from the passing of the said order except with the oblique purpose of digging out something to implicate the applicants herein, more so, in view of the fact that the title in the lands in question had already passed to Devnandan Society and the first informant had no right, title or interest in the same.
13. A perusal of the documents allegedly bearing forged signatures of the first informant show that the same are in the nature of building plans, forms in respect of preliminary details regarding development permission, an undertaking given by the Chairman and others undertaking not to encroach upon margin land, application for development permission, certificate of undertaking of registered architect/engineer, certificate of undertaking of structural designer, certificate of undertaking of registered clerk or work site supervisor, certificate of under taking for hazard safety under the relevant regulation, ULC affidavit, possession receipt, affidavit dated 17.6.2004 stating that there is no litigation in respect of the said lands nor is the same in any manner encumbered, T. P. deduction affidavit, agreement in respect of advance possession of lands coming under reservation, agreement to handover advance possession, etc. As noticed earlier, in the present case, the first informant and his family members have sold the said land admeasuring 14,362 square yards of Survey No.190 of Ghatlodia to Devnandan Society whereupon, they have all ceased to have any right, title or interest in the said lands. However, it appears that, in view of certain formalities insisted upon by AUDA, signatures of the first informant and his family members were required to be affixed on every document submitted before AUDA. Under the circumstances, it appears that somebody has signed on behalf of all the six members of the first informant's family. However, it is nobody's case that the documents on which signatures have been affixed are forged and not genuine. The only grievance of the first informant is that the documents have not been signed by him. In this regard, it may be germane to refer to the decision of the Supreme Court in the case of Dr. Vimla v. The Delhi Administration (supra) which was cited for the proposition that the expression “defraud” involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied. Applying the said principles to the facts of the present case, it appears that the signatures of the first informant have been put on the documents concerned, but the said deceit did not secure any advantage to the person who submitted the documents or cause any non-economic loss or injury to the first informant. The lands in question belonged to Devnandan Society and Devnandan Society was entitled to put up constructions thereon in respect of which, certain documents were to be submitted to AUDA. The mere fact that the first informant's signatures are affixed on the said documents does not secure any additional advantage to Devnandan Society, inasmuch as, it was even otherwise entitled to put up the constructions thereon. The said action of the person who has put the signatures of the first informant does not cause any economic loss or injury to the first informant, because once the first informant and his family members had sold the said lands to Devnandan Society, they had no right, title or interest in the same and as such, there could be no loss or prejudice caused to the first informant if on the basis of the documents submitted, the plants were approved and necessary permissions were granted by AUDA to Devnandan Society. If at all the first informant has any claim qua the subject lands, it is against his family members in respect of which, he has already instituted a civil suit in the court of competent jurisdiction.
14. It may be significant to note that it is not the case of the first informant that the documents in question have been signed by any of his family members, some of whom have been arraigned as accused persons. On a bare reading of the first information report in its entirety, it is apparent that it is the case of the first informant that somebody has signed on his behalf. However, no specific allegation has been made as to which of the accused has put the signatures. A perusal of the documents on which the first informant's signatures are alleged to have been forged, shows that in most of the documents, on the left hand side, there are signatures of six persons who appear to be Yadukant Patel, Maltiben Yadukant Patel, Naimesh Yadukant Patel, Harshadbhai Patel, Ilaben Harshadbhai Patel and Mihirbhai Harshadbhai Patel. But, it is not the case of the first informant that any of the aforesaid persons have forged his signatures, nor is it his case that the signatures of the other persons are genuine. His sole case is that someone else has forged his signatures.
15. In the light of the aforesaid facts, it is apparent that no loss has been caused to the first informant even if the allegations in the first information report that his signatures have been forged are taken to be true. Moreover, it is beyond comprehension as to how the applicant No.3 in Criminal Miscellaneous Application No.5974 of 2008, who is the brother-
in-law (sister’s husband) of the first informant and has no concern with the subject lands, has been arraigned as an accused. Under the circumstances, it is apparent that the first informant is not beyond roping in other family members who are not at all concerned with the transactions in question, merely with a view to wreak vengeance on them.
16. Another aspect of the matter is that though the first informant was well aware that the constructions have come up on the suit property, which would necessarily imply that necessary documents have been submitted before AUDA, at the relevant time, he has not raised any grievance in respect thereof and it is only in March 2008 when without any rhyme or reason, he has applied for copies of the said documents and then lodged the first information report in question. Thus, the learned advocates for the applicants appear to be justified in contending that the entire action of applying for the documents with which the first informant was not at all concerned and subsequent lodging of the first information report is with a view to wreak vengeance to settle personal scores.
17. From the facts noted hereinabove, it is apparent that initially, the first informant appears to have been agreeable to the sale of the entire parcel of land in favour of Devnandan Society and has also executed the documents in this regard. Subsequently, a dispute has been raised with his family members and sale deeds in respect of a part of the land bearing Survey No.190 of Ghatlodia have been challenged. The first informant did not succeed in the application made by him seeking interim injunction before the trial court and also failed in the appeal from order and subsequent review before this court. Thus, having met his waterloo in the hierarchy of civil courts, he has further enmeshed the applicants herein in frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The Supreme Court in the case of Chandrapal Singh v. Maharaj Singh, (1982) 1 SCC 466 has held that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. In the facts of the said case, the court observed that the complainant therein was an advocate. He lost in both the courts in the rent control proceedings and had now rushed to the criminal court which itself speaks volumes. Add to this, the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law.
18. Examining the allegations made in the first information report on merits, the offences alleged are under the provisions of sections 420, 468, 471 and 114 of the Indian Penal Code. Insofar as the provisions of section 420 IPC are concerned, as rightly pointed out by the learned counsel for the applicants, the ingredients thereof are totally missing in the first information report. The Supreme Court in the case of Inder Mohan Goswami v. State of Uttaranchal (supra), has held that on a reading of section 415 IPC, which defines “cheating”, it is manifest that in the definition, there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts, he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the facts of the present case, there is nothing to show that there was any fraudulent or dishonest inducement to the first informant whereby, he was induced to deliver property to any person or to do or omit to do anything which he would not do or omit to do if he were not so deceived. In the circumstances, it is apparent that the provisions of section 420 IPC would not be attracted in the facts of the present case.
19. As regards the applicability of sections 468 and 471 IPC, the learned advocate for the applicants have placed reliance upon the decision of the Supreme Court in the case of Jibrial Diwan v. State of Maharashtra, (supra) wherein it has been held that section 471 enjoins that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. The words “dishonestly” and “fraudulently” have been defined respectively in sections 24 and 25 of the Indian Penal Code. The words, “intent to defraud”, have been explained as being not synonymous with the words “intent to deceive”. It requires some action resulting in a disadvantage which but for the deception the person defrauded would have avoided. In the facts of the said case, the court held that by the delivery of forged letters, there is neither any wrongful gain to anyone nor any wrongful loss to another. The act of the appellant could not thus be termed to have been done dishonestly. Likewise the appellant cannot be said to have any intention to defraud because his action resulted in no disadvantage to anyone which but for the deception the person defrauded would have acted otherwise. Adverting to the facts of the present case, it is apparent that the act of submitting the documents with signature of the first informant, did not result in any wrongful loss to the first informant, nor was there any wrongful gain to the Society or to the other co- accused and therefore, it cannot be said that the person who submitted the documents had any intention to defraud the first informant or anyone. Moreover, in the facts of the present case, there is nothing on record to show that the applicants herein have in fact signed on behalf of the first informant so as to attract the provisions of the said section. In the light of the aforesaid facts, it is apparent that the basic ingredients of sections 468 and 471 IPC, namely, “dishonestly” or “fraudulently” having committed the alleged act, are missing in the facts of the present case and as such, the provisions of the said sections would also not be attracted.
20. On behalf of the respondent No.2 – first informant, reliance has been placed upon the decision of Kamaladevi Agarwal v. State of W. B. and others, (supra) for the proposition that while exercising powers under section 482 of the Code, the High Court should be slow in interfering with the proceedings at the initial stage and that merely because the nature of the dispute is primarily of a civil nature, the criminal prosecution cannot be quashed because in cases of forgery and fraud, there is always some element of civil nature. Examining the facts of the present case in the light of what is discussed hereinabove, the above referred decision would not be applicable in the facts of the present case. Reliance was also placed upon the decision of the Supreme Court in the case of M. Krishnan v. Vijay Singh and another, (supra), wherein it has been held that in a criminal court, the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil court. Had the complainant failed to prove the allegations made by him in the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Referring to the facts of the present case, both the civil as well as criminal proceedings have been instituted by the first informant and as such, it is not as if the applicants herein have filed any civil litigation in respect of the documents allegedly bearing the forged signatures of the first informant to frustrate the course of justice. In the present case, the factual foundation for the offences alleged has not been laid in the first information report and as such, the above referred decision would also not come to the aid of the second respondent. In the case of State of A. P. v. Golconda Linga Swamy and another (supra), the Supreme Court held that the powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. It has been further held that the High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Adverting to the facts of the present case, in the light of what is discussed hereinabove, by no stretch of imagination can it be said that the issues involved are of magnitude and that the same cannot be seen in the true perspective without additional material. Under the circumstances, the said decision would also not come to the aid of the second respondent. The decision in the case of T. Vengama Naidu v. T. Dora Swamy Naidu and others, (supra) would also not be attracted inasmuch as, the said decision was rendered in a totally different set of facts and has no applicability to the facts of the present case.
21. In the light of the aforesaid discussion, this court is of the view that on a plain reading of the first information report as well as the admitted documents, the ingredients of the offences alleged are not disclosed. Moreover, for the reasons stated hereinabove, the first information report appears to be frivolous and vexatious and appears to have been filed with a view to wreak vengeance on the applicants with a view to settle personal scores. As noticed earlier the applicants in Cr.M.A. No.5974 of 2008 are all family members of the first informant, out of whom the applicant No.3 being the brother- in-law of the first informant has no concern with the subject lands and has unnecessarily been dragged into this litigation. It may be noted that in a Hindu family, when a brother-in-law is dragged into such vexatious litigation, the sister of the first informant would have to bear the brunt. Lodging of a criminal prosecution has serious consequences whereby the accused have to face arrest and other consequences which seriously affect their reputation in society. In the present case, it appears that with a view to settle personal grudges, the respondent No.2-first informant has dug up material in the nature of documents submitted to AUDA bearing signatures of all the family members who had executed the sale deeds in favour of Devnandan Society, including that of the first informant, and has lodged the first information report in question. Insofar as the applicants of Cr.M.A. No.6007 of 2008 are concerned, it appears that since the documents in question have been submitted in the office of AUDA by the Society, unless the said applicants are arraigned as accused it would not have been possible to arraign the family members of the first informant as accused, hence, with a view to implicate his family members out of personal grudge, the first information report has been lodged by naming the Chairman of the Society, etc. as accused persons. Under the circumstances, continuation of the prosecution pursuant to the first information report in question would be an abuse of the process of law warranting invocation of the inherent jurisdiction of this court under section 482 of the Code.
22. For the foregoing reasons, the applications succeed and are, accordingly, allowed. The first information report registered vide Naranpura Police Station I – C.R. No.244/2008 is hereby quashed and set aside. Rule is made absolute accordingly in each of the applications.
23. Registry to place a copy of this judgment in each of the applications.
Direct Service is permitted.
[HARSHA DEVANI, J.] parmar*