1. By this petition under Section 482 of the Code of Criminal Procedure, the petitioners have prayed to quash the criminal complaint being C.R. No. I-327 of 2007 registered with Umra Police Station, Surat under Section 33, 34, 114, 120, 406, 420, 386, 506(2) of the Indian Penal Code.
The petitioners claim that the petitioner No.1 to be the owner of the Flat No. 72-A in Dhawalgiri Apartment, Athwalines, Surat. The petitioner No.2 is husband of petitioner No.1. It is their case that the said flat was allotted to her in the year 2002. She is staying out station of Surat, at Haryana. Her daughter is, however, staying in Surat City and on her daughter coming to know that the lock of the flat was opened and somebody else was claiming title to the flat, she informed the petitioner and, therefore, petitioner No.1 filed complaint as also the civil suit being Special Civil Suit No. 111 of 2006 for declaration and permanent injunction wherein the present respondent No.2-complainant is defendant No.3. In the said suit, she has alleged that she has not executed any document either of power of attorney or any other agreement so as to pass the title in respect of the flat in favour of any person. Still, on the basis of the got up document like power of attorney etc., right, title and interest in her flat were transferred by one Shri Rajkumar Radhakishan Sharaf and Arpit Harshadkumar Tanna (Thakkar) in favour of respondent No.2. It is stated that in the suit filed by respondent no.2 being Regular Civil Suit No. 74 of 2006, her application for joining as party defendant was allowed. That application was required to be made because the petitioner came to know that there was collusion between the above said two persons and respondent No.2 to defeat the rights of the petitioner no.1 in respect of the flat in question. During the hearing of this petition, learned advocate for the petitioner has drawn attention of this Court to the purshis dated 17.2.2006 submitted on behalf of those two persons, especially Shri Arpit H. Tanna (Thakkar) declaring that after taking possession of the flat from Rajkumar Radhakishan Sharaf, the flat which was in the name of Nirmala Gupta was sold to respondent no.2 and the money was also received and it was declared in that very purshis that the possession was also with respondent No.2 who is plaintiffs in Regular Civil Suit No. 74 of 2006. Therefore, as stated by the petitioners, the petitioner no.1 had all reason to file the suit for declaration to protect her right, title and interest in the property in question. The declaration sought for is to the effect that the petitioner has not executed any document and the documents on which right, title and interest are passed on to respondent no.2 were all forged and false. It is stated before the Court that in the said suit, civil court has already granted status quo and both the suits filed by both the parties means respondent no.2 and the petitioner no.1 are pending. The petitioner no.1 was permitted to be joined as party defendant in the suit filed by respondent no.2 by order dated 29.3.2006 and the suit was filed by the petitioner on 31.3.2006. The complaint which was filed by the petitioner before the Police Commissioner is dated 20.2.2006 and subsequently, present respondent no.2 lodged the FIR which was registered on 23.4.2007 against the petitioners and against other two advocates.
2. Now, coming to the contents of the FIR lodged by respondent no.2, respondent no.2 has, in the said complaint, alleged that he has purchased the flat no.72-A on 4.6.2005 by making cash payment to one Shri Arpit H. Thakkar and the possession of the said flat was handed over to him by said Shri Arpit Thakkar. It is further alleged that accused No.1 and other ten persons had given power of attorney of different properties on 29.7.2002 and on the basis of the power of attorney, properties were sold out but accused no.1 in order to extract more money, with the help of accused No.3 and 4 who are advocates, filed the complaint and suits in the Court. It is further alleged that the separate writing in respect of the flat in question was executed by accused no.1 on 27.5.2003 but looking to the rise in the prices of the property, in order to take undue advantage, accused no.1 with the help of accused no.3 and 4 (advocates), have made the petitioner no.1 (accused No.2) to file the suit and false complaints and thereby they are committing offences. It is further alleged that though the petitioner had already received the amount of price of the flat, still with a view to cheat the respondent No.2 – complainant, accused have been indulging into making false representation and filing cases in the court as also complaint before the police authorities. Thus, all the accused have committed offences under Section 33, 34, 114, 120, 406, 420, 386, 506(2) of the Indian Penal Code and, therefore, complaint is required to be filed.
3. The gist of the complaint is to the effect that though respondent no.2 is a bona fide purchaser of the flat in question, still, in order to extract more money and to cheat him, to take undue advantage, the petitioner is filing false cases in the court at the instance of other accused.
4. This petition was admitted by this Court on 30.7.2008. This Court passed following order:
Heard learned counsel for the parties.
In addition to what is recorded in para 2 of the order dated 16.5.2008, statements of one Alpit H. Thakkar and Rajkumar Radhakisan Sharaf, recorded on 4.6.2006 and 26.6.2006 respectively, do not dispute the position of the respondent No.2 herein.
Rule.
Interim relief granted earlier to continue till further orders.
5. Learned Advocate for the petitioner has submitted that the lodging of FIR by respondent no.2 against the petitioners is nothing but gross misuse of law at the hands of respondent no.2 and the complaint is filed just to settle the score of civil disputes between the parties for which both the parties have already filed the civil suits. He further submitted that even if the allegations made in the complaint are taken on their face value, they do not constitute any of the offences as alleged in the FIR because the allegations do not satisfy the ingredients of the offences alleged against the petitioners. Learned Advocate for the petitioners has further submitted that the petitioner no.1 is an allottee of the flat prior in point of time. She has been staying at far away place in Haryana. Shri Rajkumar Radhakishan Sharaf and Arpit Thakkar both had in collusion with respondent no.2 got up and fabricated false documents of power of attorney etc. and right title and interest in the flat in question belonging to the petitioner were transferred in favour of respondent no.2. Learned Advocate for the petitioner has taken this Court through purshis at Exh. 11 presented on 17.2.2006 in the Special Civil Suit No. 74 of 2006 and pointed out that the contents of the said purshis speaks volumes about the conduct and collusion between those two persons and respondent no.2. He pointed out that if the possession was already handed over to respondent no.2 and if there is no other coercive action by which respondent no.2 is divested of his possession of the flat in question, one fails to understand as to how the petitioner can be said to have committed any offence as alleged. He submitted that by filing civil suit or even the criminal complaint or making application for being joined as party defendant no.2 in the suit filed by the respondent no.2 is no offence but is an act on the part of the petitioner to agitate and make grievance about the breach of her right before the civil court where she seeks remedy for her right. It is for the civil court to decide civil rights of the parties and when the civil court is seized of the matter in both the suits to decide the issue about the right, title and interest in the property, simply because such suit was filed by the petitioner no.1 and the application was made in the suit filed by the respondent no.2 for being joined as party defendant, that cannot be termed as an act of offence. Learned advocate for the petitioner has further pointed out that making of statement by those two persons who are responsible to create false documents for which the petitioner has already filed the suit is a conduct which cannot be ignored especially when they have agreed by way of purshis the civil suit filed by respondent no.2 that the possession was handed over to respondent no.2 of which earlier the petitioner no.1 was owner and that amount was also received from the respondent no.2.
6. Viewing this purshis and the statement of those two persons and considering the pendency of the suits wherein this very flat is the subject matter in both the suits and considering the allegations made in the FIR lodged by respondent No.2, according to my opinion, the allegations made in the FIR do not constitute any offence whatsoever against the petitioners. In fact, the allegations made in the FIR do not even satisfy the ingredients of the offences alleged against the petitioners. It clearly appears that the respondent no.2 has lodged this FIR as counter blast to the claim of the petitioner no.1 in the civil suit as also in the complaint before the police commissioner in Surat City. The FIR lodged by respondent No.2 against the petitioners is nothing but misuse of the provisions of law at the hands of respondent no.2. Therefore, this is a fit case where the FIR being C.R. No. I-327 of 2007 lodged by the respondent No.2 before Umra Police Station, Surat under Section 33, 34, 114, 120, 406, 420, 386, 506(2) of the Indian Penal Code is required to be quashed while exercising the powers under section 482 of the Code of Criminal Procedure.
7. Accordingly, this petition is allowed. FIR being C.R. No. I-327 of 2007 lodged by the respondent No.2 before Umra Police Station, Surat under Section 33, 34, 114, 120, 406, 420, 386, 506(2) of the Indian Penal Code is hereby quashed qua petitioners. Rule is accordingly made absolute.
(C.L. Soni,J.) an vyas