State Of Gujarat & 1 ­

1. As both these applications are arising out of the same First Information Report and the issue involved in both applications are similar, both these applications are being heard together and are being deciding by this common order.

2. The present applications have been filed by the applicant under Section 482 of the Code of Criminal Procedure, 1973 for the prayers that FIR being C.R.No.I­614/2011 registered with Naroda Police Station, Ahmedabad may be quashed and set aside on the grounds stated in the applications.

3. Heard learned Sr. Advocate, Shri S.V. Raju appearing with learned counsel, Mr.Bhadresh Raju for the applicant, learned APP Ms.A.C. Raval for the respondent no.1­State and learned Sr. Advocate, Shri Y.N. Oza appearing with learned counsel, Mr.Apurva Kapadia for the respondent no.2­original complainant.

4. Learned Sr. Advocate, Shri Raju submitted that the applicant of Criminal Misc. Application No.3074/2012 (original accused no.2) is purchaser of the land and the applicant of Criminal Misc.

Application No.5990/2012 (original accused no.1) is the Power of Attorney Holder against whom the impugned FIR has been filed by the respondent no.2. He submitted that civil proceedings are pending and the FIR is filed by way of abuse of process of law. It was submitted that the sale deed at Annexure­C has been executed by the complainant and his family members in favour of the present applicant, for which, consideration has already been paid. He has pointedly referred to this aspect that the amount of consideration i.e. Rs.10.00 lacs were paid by demand draft in favour of the complainant and his brother, for which, he has pointedly referred to the details as mentioned in Civil Suit No.393 of 2010 produced at Annexure­G. He submitted that for the same facts and same averments, Suit has been filed, wherein it has been admitted about the receipt of the consideration. It was, therefore, submitted that having received amount towards the consideration, now it is averred in the present complaint that same amount was taken back by threat. He pointedly referred to the averments in the Suit. He pointedly referred to the dates to support his submissions that during the period from 13.03.2010 to 15.03.2010, it is alleged that consideration has been taken back as stated in detail, which cannot be believed. He submitted that on one hand, therefore it is contended that the complainant has not received any consideration towards the transaction for the sale of the land, for which, the registered sale deed is executed and on the other hand, an explanation is sought to be given that the amount has been taken back, which cannot be believed. He submitted that there is a suppression of fact as on one hand, it is stated that money is not received and on the other hand, it is sought to be explained that it has been taken away.

5. Learned Sr. Advocate, Shri Raju also referred to the complaint and submitted that the ingredients for the alleged offences under Sections 467, 468 etc. of the Indian Penal Code are not attracted or fulfilled. He pointedly referred to various sections and submitted that there is no entrustment and there is no inducement or intention for cheating and, therefore, as there is no mens­rea, the ingredients for the offences are not fulfilled. Similarly. He submitted that the allegations for the forgery are made but the document is admittedly executed and, therefore in which manner the offence can be said to have been committed is not stated. He submitted that when admittedly some amount has been paid towards the consideration by demand draft in part payment, the allegations cannot be accepted at the face value. He also submitted that earlier the sisters of the complainant had also initiated the proceeding under Section 190 of the Code of Criminal Procedure, 1973 by filing complaint before the Court of Magistrate, which is not conveniently mentioned. He, therefore, submitted that it is by way of abuse of process of law and there cannot be such a complaint to be filed.

6. Learned Sr. Advocate, Shri Y.N. Oza for the respondent no.2 has submitted that the facts are required to be broadly considered. He submitted that the power of attorney, which is produced at page no.8 is purported to have been executed by the complainant and his family members dated 28.05.2009 and on the basis thereof, the transaction is made. He, therefore, submitted that the said Power of Attorney is stated to have been made in favour of one Govindbhai Rajput. However, learned Sr. Advocate Shri Oza submitted that the photographs and the signatures of the sisters viz., Madhuben and Sajjanben are false and the complaint filed by the sisters are pending before the Court of Magistrate. He also submitted that the Power of Attorney is executed in the year 2009, whereas the sale deed is executed based on such Power of Attorney by the said Govindbhai as Power of Attorney Holder in March, 2010, wherein the signature are forged. He also referred to the affidavit­in­reply filed by the respondent no.2­ original complainant and submitted that as explained in detail as to how the entire transaction took place resulting into an offence clearly suggests that prima­facie offence is made out. He emphasized that the Power of Attorney and the thumb impression or the photographs of the original complainant and his brothers/sister are false. He submitted that on the basis of the said false Power of Attorney, the accused no.1 sold the land in dispute to the applicant. Again he submitted that the accused have played a vital role in committing alleged offences including the forgery of documents and preparation of bogus sale deed. He submitted that Sogandnama­cum­Kabulatnama at Annexure­E confirming that the sale deed has been never executed by the owners in favour of the accused as said Kabulatnama does not bear the thumb impression, signature and photographs of the original owners of the land. He submitted that when the matter is pending before the Court of Magistrates, an appropriate order may be passed and, therefore, FIR cannot be quashed at this stage. He submitted that if at the end of investigation, there is no material found, appropriate report may be filed assuming that there is false statement by the complainant and then the I.O. may file a summary but at this stage, this Court may not exercise inherent jurisdiction, which would amount to stall the investigation at the very initial stage. Therefore, he submitted that the present applicationd may not be entertained. He has referred to and relied upon the order of this Court in Criminal Misc. Application Nos.173/2012 with 177/2012 and submitted that at this stage, the Court is required to consider only whether the exercise of such powers are justified in light of the guidelines. He submitted that whether FIR prima­facie discloses commission of offence from the averments is required to be considered. He submitted that at this stage, in exercise of inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973, the Court is not required to appreciate or consider the material and evidence.

7. In rejoinder, learned Sr. Advocate, Shri Raju submitted that the Court has to prima­facie consider whether the ingredients for the alleged offences are fulfilled particularly when there is also a civil suit filed with same averments or some inconsistent statement in the FIR and the civil suit. He referred to and relied upon the judgment of the Hon'ble Apex Court in case of B.Suresh Yadav Vs. Sharifa Bee & Anr., reported in (2007) 13 SCC 107, particularly observation made in para no.13 that “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.”

8. Again learned Sr. Advocate, Shri Raji emphasized that essential ingredients for the offences of forgery are not attracted and he has referred to Sections 463, 467, 468 etc. of the Indian Penal Code and submitted that for the offence of cheating, there is no material. He further submitted that similarly for the offence of forgery, there has to be a deceit and fraud, which again would require the material to establish such intention and mens­rea. Therefore, he submitted that the present application may be allowed.

9. Learned Sr. Adv. Shri Raju also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Mohammed Ibrahim & Ors. Vs. State of Bihar & Anr., reported in (2009) 8 SCC 751 and submitted that to do the justice between the parties, inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 may be and should be exercised in the present case. He also referred to the judgment of the Hon'ble Apex Court in case of K.L.E. Society & Ors. Vs. Siddalingesh, reported in (2008) 4 SCC 541 and pointedly referred to para nos.7 and 8, wherein it has been observed that “It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact.”

10. Learned Sr. Adv. Shri Raju has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Suryalakshim Cotton Mills Ltd. Vs. Rajvir Industries Ltd. & Ors., reported in (2008) 13 SCC 678. He has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors., reported in (2007) 12 SCC 1, particularly referred to the analysis of the preposition of law with reference to the definition of cheating and other offence like forgery to support his submission that the offences are not attracted. He also submitted that though the complaint was filed by the sisters of the complainant, inquiry has been made and such a complaint is only as and by way of abuse of process and it may be quashed and set aside.

11. In view of these rival submissions, it is required to be considered whether the present applications can be entertained or not.

12. From the rival submissions which have been made at length, it would be evident that the complainant has made averments with regard to the false documents, which have been executed in the name of the persons (sisters), who were not there and admittedly other sisters have filed private complaint before the Court of Magistrate, which is pending. On the other hand, as emphasized by learned Sr. counsel, Shri Raju that the amount towards the consideration has been paid by cheque is required to be considered emphasizing that the complaint is filed only to extract money and it is an abuse of process of law or arm twisting. The complainant is said to have stated that though the amount has been paid by cheque, subsequently it has been taken back by threats as stated in the complaint. Therefore, it is word against word, which requires a detailed appreciation of evidence and also examination and scrutiny of the details and material.

13. Another facet of arguments emphasized by learned Sr. Advocate, Shri Raju that the ingredients for the alleged offences are not fulfilled with much emphasis at length requires to be considered. Though the submissions have been made at length, it is well accepted that at this stage, the Court is not required to consider whether they make out a prima­facie case or not. The Hon'ble Apex Court in a judgment in case of Rajesh Bajaj Vs. State NTC of Delhi & Ors., reported in AIR 1999 SC 1216 has clearly observed that “it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. Nor is it necessary that the complainant should state in so many words that the intention of the accused was dishonest or fraudulent. Splitting up of the definition into different components of the offence to make a meticulous scrutiny, whether all the ingredients have been precisely spelled out in the complaint, is not the need at this stage. If factual foundation for the offence has been laid in the complaint the Court should not hasten to quash criminal proceedings during investigation stage merely on the premise that one or two ingredients have not been stated with details”.

Therefore, the submissions made by learned Sr. Advocate, Shri Raju are misconceived.

14. Further, the emphasis, which has been given by learned Sr. Advoate, Shri Raju that it is an abuse by way of arm twisting and, therefore, when there are inconsistent stand taken in the civil proceeding and the present complaint is required to be considered. A reference is made to the observations made in a judgment in case of B.Suresh Yadav (supra) as recorded hereinabove. Therefore, again it will have to be considered in light of the material and evidence. It is also well accepted that the criminal complaint is not a barred when civil proceedings are initiated and same transaction may have the characteristic of trapping of criminal offence, which could be considered on the basis of material and evidence after the investigation is over. Therefore, the conduct and intention of the parties, which may have to be culled out on the basis of material and evidence collected during the investigation would be necessary to decide whether the offence is made out or not. Therefore, no conclusion can be arrived at at the threshold and material and facts, which have been placed on record cannot be said to be simply giving a clear indication about the abuse of process without any basis. The Hon'ble Apex court has while laying down the guidelines referring to the judgment in case of State of Haryana Vs. Bhajan Lal, reported in 1992 Supp (1) SCC 335 = AIR 1992 SC 604 as well as in a subsequent judgment in case of Divine Retreat Centre Vs. State of Kerala & Ors., reported in AIR 2008 SC 1614 expressed a word 'caution' while exercising inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 as well as exercising discretion under Article 226 of the Constitution of India. The broad circumstances have been considered whether such power of discretion may be exercised justifiably and there is specific reference to this analysis, under which, the discretion could be exercised namely (i) to give effect to an order under the Code;

(ii) to prevent the abuse of process of the Court; and (iii) to otherwise secure the ends of justice. If these broad guidelines are considered, it cannot be concluded that the averments in the complaint are without any basis. Therefore at this stage, whether the prima­facie offence is disclosed from the averments is required to be considered. The reliance placed by learned Sr. Advocate, Shri Raju in case of Suryalakshim Cotton Mills Ltd. (supra) is also misconceived. In fact in this judgment, it has been observed that plausible defence of the accused is not good enough for exercise of inherent powers. The fact that the sisters of the complainant have also initiated the complaint which is pending would also require to be considered and since it is also pending before the Court of the Magistrate, the matter should allow to proceed as laid down in the Code of Criminal Procedure, 1973 without interference by this Court in exercise of inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 as well as under Article 226 of the Constitution of India. The Hon'ble Apex Court has also expressed a word of caution time and again referring to various aspects that the exercise of such discretion should be with care and circumspection and the High Court should normally retrain from giving such prima­facie decision when the facts are incomplete and hazy. A useful reference can be made to the observations by the Hon'ble Apex Court in a judgments in case of Zandu Pharmaceutical Works Ltd. And Others v. Mohkd. Sharaful Haque And Another, (2005) 1 SCC 122, wherein it has been observed the scope of Section 482 of the Criminal Procedure Code as followed:­ “As noted above, 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. 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, moreso 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.”

15. Therefore, considering the aforesaid principles and the facts, which have been discussed hereinabove, it would not be proper to exercise the discretion for quashing of the FIR at the threshold particularly when another complaint filed by the sisters of the complaint is also pending before the Court of Magistrate.

16. Therefore, the present applications cannot be entertained and deserve to be dismissed. Accordingly, the present applications stand dismissed. Rule is discharged. Interim relief stands vacated.

/patil

Sd/­

(RAJESH H.SHUKLA, J.)