1. The present Criminal Misc.Application u/s.482 of the Code of Criminal Procedure has been preferred by the applicant herein – original accused No.8 to quash and set aside the impugned FIR being C.R.No.I-96 of 2008 registered with Icchapor Police Station, Surat for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 477 and 120-B of the Indian Penal Code.
2. Respondent No.2 herein – original complainant has lodged the impugned FIR with Icchapor Police Station, Surat against the applicant herein and others for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 477 and 120-B of the Indian Penal Code, for the offences alleged to have been happened on 10/04/2008, alleging inter alia that original accused Nos.1 to 7 have executed registered sale deed in favour of applicant herein – original accused No.8 dated 10/04/2008 despite the fact that there was already possession receipt and/or possession agreement in favour of Dhanjibhai Bhagwanbhai Panchani and Jayantibhai Mohanbhai Dhaduk executed by original accused Nos.1 to 7 after receiving full sale consideration in the year 2004. It is further alleged in the said FIR that despite the above, there was power of attorney executed by original accused Nos.1 to 7 in favour of Hasmukhbhai Dhaduk and the said Hasmukhbhai Dhaduk executed the sale deed in favour of original complainant. It is further alleged in the said FIR that despite the above, original accused Nos.1 to 7 have executed sale deed in favour of original accused No.8 suppressing the aforesaid facts. Being aggrieved by and dissatisfied with the impugned FIR, the applicant herein – original accused No.8 has preferred the present application u/s.482 of the Code of Criminal Procedure to quash and set aside the impugned FIR qua him.
3. Mr.S.V.Raju, learned Senior Counsel appearing on behalf of the applicant herein – original accused No.8 has vehemently submitted that the applicant herein has not committed any offence as alleged. It is further submitted that as such in the complaint, the complainant has categorically stated that in fact original accused Nos.1 to 7 have cheated the original accused No.8 and have executed sale deed in favour of original accused No.8 despite the fact they have already entered into sale agreement in the year 2004 in favour of Dhanjibhai Bhagwanbhai and Jayantbhai Mohanbhai Dhaduk and they have received full sale consideration in the year 2004. There are no allegations in the impugned FIR that the applicant herein has forged any document. It is submitted that there was no entrustment of the property to the complainant and in absence of any allegations and averments of forgery against the applicant herein, it cannot be said that the applicant herein has committed any offence as alleged. It is submitted that therefore to continue the criminal proceedings against the applicant would be unnecessary harassment to the applicant herein and abuse of process of law and Court. Therefore, it is requested to quash and set aside the impugned FIR qua the applicant herein in exercise of powers u/s.482 of the Code of Criminal Procedure.
It is further submitted by Mr.S.V.Raju, learned Senior Counsel appearing on behalf of the applicant that as such the applicant had instituted the said Suit in the month of April,2008 against the complainant for cancellation of the sale deed in his favour and, thereafter, original complainant had filed the FIR against original accused Nos.1 to 8. By making above submissions, it is requested to quash and set aside the impugned FIR qua the applicant herein.
4. Mr.A.D.Shah, learned advocate appearing on behalf of the original complainant has tried to oppose the present application by submitting that as the applicant has purchased the property in question without verifying the title and even at the time sale deed was executed in his favour, the name of the complainant was mutated in the revenue record, therefore, it can be said that the applicant has abetted original accused Nos.1 to 7 in committing the offences as alleged. Therefore, it is requested not to exercise the power u/s.482 of the Code of Criminal Procedure and not to quash and set aside the impugned FIR.
5. Mr.L.B.Dabhi, learned Additional Public Prosecutor appearing on behalf of the State is not in a position to dispute that as such there are no specific allegations and averments against the applicant herein that the applicant has forged any document and/or he has cheated the original complainant. Therefore, he has requested to pass an appropriate order in the facts and circumstances of the case.
6. Heard learned advocates appearing on behalf of the respective parties at length and considered the averments and allegations in the impugned FIR. At the outset, it is required to be noted that as such there are no specific allegations and averments against the applicant herein – original accused No.8 that he has forged any document/sale deed and/or he has committed any offence of cheating. On the contrary, it is the specific case on behalf of the original complainant in the FIR that original accused Nos.1 to 7 have cheated original accused No.8. In the FIR, it is also averred and alleged by the complainant that despite the fact that original accused Nos.1 to 7 have already executed sale agreement in the year 2004 in favour of Dhanjibhai Bhagwanbhai and Jayantbhai Mohanbhai and they have received full sale consideration in the year 2004 and despite the fact that possession was already handed over to aforesaid two persons, subsequently, they have executed power of attorney in the name of Hasmukhbhai Dhaduk and the said Hasmukhbhai Dhaduk executed sale agreement in favour of original accused No.8 and they have again cheated original accused No.8. Under the circumstances, this Court fails to appreciate how the applicant has committed any offences as alleged. According to the complainant, the original accused No.8 is also cheated by original accused Nos.1 to 7. Under the circumstances, it appears to the Court that to continue the criminal proceeding against the applicant herein would be unnecessary harassment to the applicant and the same shall be abuse of process of law and Court. Merely because the applicant can be said to be negligent in purchasing the property in question without verifying the title, it cannot be said that the applicant has committed an offence of cheating and forgery. As stated hereinabove, no such averments and allegations are made in the FIR against the applicant herein. Under the circumstances, in absence of allegations and averments in the FIR against the applicant herein and considering the fact that even according to the complainant, the applicant has been cheated by accused Nos.1 to 7, it cannot be said that the applicant has committed any offences as alleged. Under the circumstances, to continue the criminal proceedings against the applicant would be abuse of process of law and Court. Considering the judgement delivered by the Hon'ble Supreme Court in the case of State of Haryana and others V/s. Bhajan Lal and others reported in AIR 1992 SC 604, this is a fit case to exercise the powers u/s.482 of the Code of Criminal Procedure and to quash and set aside the impugned FIR.
7. In view of the above, the present application succeeds. The impugned FIR being C.R.No.I-96 of 2008 registered with Icchapor Police Station, Surat against the applicant herein is hereby quashed and set aside qua applicant herein – original accused No.8 only. However, the same shall be without prejudice to the rights and contentions of the prosecution as well as original complainant against the other accused persons. As and when any application is submitted by the original accused Nos.1 to 7 for discharge (as per order passed in Criminal Misc.Application No.3226 of 2010), the same shall be considered by the concerned Magistrate in accordance with law and on merits and without in any way being influenced by the present order. Rule is made absolute to the aforesaid extent.
[M.R.SHAH,J] *dipti