1. Leave to amend the prayer clause by describing Criminal Inquiry Case No. 72/2004 instead of M Case No. 72/2004.
2. The present Special Criminal Application under Article 226 read with Section 482 of the Code of Criminal Procedure has been preferred by the petitioner to quash and set aside the impugned order dated 12/08/2004 and the process issued by the learned Judicial Magistrate First Class, Anand with respect to Criminal Inquiry Case No. 72/2004 for the offences punishable under Sections 409, 420, 465, 466, 467, 468, 34 and 120-B of the Indian Penal Code.
3. The facts leading to the present Special Criminal Application in a nutshell are as under;
3.1. The petitioner instituted one civil suit, being Special Civil Suit No. 15/1982 in the Court of learned Civil Judge (Senior Division), Anand against the original owner of Final Plot Nos. 432/2 and 432/4 of the Town Planning Scheme, Anand and the said suit came to be decreed in favour of the petitioner and the learned trial Court passed an order for specific performance of contract with respect to the aforesaid lands. It appears that the said judgment and decree passed by the learned trial Court has been subsequently confirmed by this Court as well as the Hon'ble Supreme Court. The petitioner submitted the execution application before the executing Court to execute the judgment and decree passed by the learned trial Court, which came to be confirmed up to the Hon'ble Supreme Court and for execution of the documents/sale deed in favour of the petitioner, respondent no. 2-original complainant was appointed as Court Commissioner. It appears that the petitioner submitted the application before the executing Court on 17/11/2003 to remove respondent no. 2-original complainant as Court Commissioner and the learned executing Court dismissed the said application. Being aggrieved and dissatisfied with the order passed by the learned executing Court not removing respondent no. 2 as Court Commissioner, petitioner preferred Revision Application before this Court and during pendency of the said proceedings, respondent no. 2 stepped down as Court Commissioner and another Court Commissioner was appointed. In the meantime, on the basis of the judgement and order passed by this Court in First Appeal confirming the judgment and decree passed by the learned trial Court passed in Special Civil Suit No. 15/1982, the petitioner submitted an application before the City Survey Superintendent placing on record the judgment and order passed by this Court in First Appeal and it appears that as occupier of the land in question, name of the petitioner was mutated in the City Survey record. It is required to be noted at this stage that during pendency of the First Appeal, original owner executed the sale deed in favour of the petitioner pursuant to the judgment and decree passed by the learned trial Court but the sale deed was not executed with respect to the some of the properties. The application submitted by the petitioner before the City Survey Superintend came to be accepted and name of the petitioner was mutated in the City Survey record and, therefore, respondent no. 2-original complainant has filed the impugned private Complaint in the Court of learned Judicial Magistrate First Class, Anand against the petitioner and the City Survey Superintendent, Anand for the offences punishable under Sections 409, 420, 465, 466, 467, 468, 34 and 120-B of the Indian Penal Code, which has been numbered as Criminal Inquiry Case No. 72/2004 and in the said Complaint the learned Magistrate has passed an order to send the said Complaint for inquiry under Section 202 of the Code of Criminal Procedure vide order dated 12/08/2004. Being aggrieved and dissatisfied with the impugned Complaint, the petitioner-original accused no. 1 has preferred the present Special Criminal Application.
4. Shri Shivang Shukla, learned advocate appearing on behalf of the petitioner-original accused no. 1 has vehemently submitted that the impugned Complaint filed by respondent no. 2 is absolutely malafide and as a counter blast to his application removing him as Court Commissioner. It is submitted that even otherwise, by getting the name of the petitioner entered in the City Survey record as occupier with respect to the properties for which there was already a decree in his favour, it cannot be said that the petitioner has committed the offences as alleged. It is submitted that even with respect to most of the properties even the sale deeds were executed by the original owner during pendency of the First Appeal before this Court, which is so recorded in the judgement and order passed by this Court, and, therefore, it is submitted that the impugned Complaint is nothing but vexatious and malafide one, which deserves to be quashed and set aside. It is submitted that as such by getting the name mutated in the city survey record, no undue advantage has been taken by the petitioner, as the petitioner was already having a decree in his favour pursuant to the judgment and decree passed by the learned trial Court in Special Civil Suit No. 15/1982, which has been confirmed up to Hon'ble Supreme Court and, therefore, it is requested to allow the present Special Criminal Application.
5. Shri Dagli, learned advocate has appeared on behalf of respondent no. 2-original complainant. Shri Dagli, learned advocate appearing on behalf of respondent no. 2-original complainant is not in a position to dispute that with respect to the very property in question, there was a decree for specific performance in favour of the petitioner and the same has been confirmed up to the Hon'ble Supreme Court. However, he has submitted that as the name of the petitioner was mutated in the city survey record without notice to the heirs of the original owner and though there was no sale deed in his favour it amounts to cheating and creating documents for getting the name mutated in the city survey record. It is further submitted by him that as such the learned Magistrate has passed an order only of inquiry under Section 202 of the Code of Criminal Procedure and even the report is yet to be submitted before the learned Magistrate, which is to be considered by the learned Magistrate and, therefore, it is requested not to quash and set aside the impugned Complaint at this stage.
6. Shri L.B. Dabhi, learned APP appearing on behalf of the respondent-State has requested to pass an appropriate order in the facts and circumstances of the case.
7. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that the impugned Complaint has been lodged by respondent no. 2, who was appointed as Court Commissioner to execute the judgment and decree passed by the learned Civil Judge (Senior Division), Anand passed in Special Civil Suit No. 15/1982, which was in favour of the petitioner. It is also required to be noted that one application was submitted by the petitioner decree holder to remove respondent no. 2 as Court Commissioner alleging interalia that he was not getting the decree executed and there was delay on his part in executing the decree. Thereafter, the impugned Complaint has been filed. It is required to be noted that the judgment and decree passed by the learned Civil Judge (Senior Division), Anand has been confirmed up to the Hon'ble Supreme Court and, therefore, by getting his name mutated in the city survey record it cannot be said that the petitioner has got any undue advantage which otherwise he was not entitled to. It is also required to be noted at this stage that even during pendency of the First Appeal before this Court with respect to most of the properties, which was subject matter of the suit, the sale deeds were executed by the original owner and the same is also recorded by the Division Bench in the judgment and order in the First Appeal. Under the circumstances and in view of the above, it cannot be said that the petitioner has committed any offence as alleged for the offences punishable under Sections 409, 420, 465, 466, 467, 468, 34 and 120-B of the Indian Penal Code and has taken any advantage or disadvantage by getting his name mutated in the city survey record, which otherwise was entitled to under the decree, which has been confirmed up to the Hon'ble Supreme Court. It appears that the Court Commissioner has filed the impugned Complaint as a counter blast to the application submitted by the petitioner to remove him as Court Commissioner, which was submitted on 17/11/2003. In view of the above, it appears to the Court that to continue the proceedings against the petitioner would be unnecessary harassment to him and the same shall be abuse of process of law and Court and, therefore, this is a fit case to exercise the powers under Article 226 read with Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned Complaint.
8. In view of the above and for the reasons stated hereinabove, the present petition succeeds. The impugned Complaint, being Criminal Inquiry Case No. 72/2004 pending in the Court of learned Judicial Magistrate First Class, Anand is hereby quashed and set aside. Rule is made absolute accordingly.
(M.R. SHAH, J.) siji