IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2563 of 2009 With CRIMINAL MISC.APPLICATION No. 16222 of 2008 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH sd =========================================
========================================= JOITARAM AMBALAL PATEL & 6 Applicant(s) Versus STATE OF GUJARAT & 1 Respondent(s) ========================================= Appearance :
Appearance :
Mr. S.V. Raju Ld. Sr. Adv MR JAYPRAKASH UMOT for Applicant(s) : 1 – 7. CR.MA. 16222 OF 2008 MR. P. S. GONDALIYA for applicant MR. DABHI ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 30/08/2012 CAV JUDGMENT
1.0 As common question of law and facts arise in both these applications and with respect to one criminal case both these applications are heard, decided and disposed of by this common judgment and order.
2.0 Criminal Miscellaneous Application No. 2563 of 2009 under Section 482 of the has been preferred by the petitioners hereinoriginal accused nos.4 to 9 and 11 to quash and set aside the proceedings of Criminal Case No. 12968 of 2008 pending in the Court of learned JMFC, Gandhinagar as well as order dated 15.11.2008 issuing process against the petitioners by the learned JMFC, Gandhinagar.
3.0 Criminal Miscellaneous Application No. 16222 of 2008 has been preferred by the petitioner hereinoriginal accused no.10 to quash and set aside proceedings of Criminal Case No. 12968 of 2008 pending in the Court of learned JMFC, Gandhinagar as well as impugned order passed by the learned JMFC, Gandhinagar directing to issue process against petitioner for the offences under Sections 406, 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code.
4.0 That the respondent no.2 herein original complainant Veljibhai Jivabhai Chaudhary has initiated the criminal proceedings against the applicant and others for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code, in the Court of learned JMFC, Gandhinagar which was numbered as Inquiry Case No. 63 of 2008. It was alleged that the respondent no.2 herein original complainant along with accused nos. 1, 2 and 3 purchased the land in question from accused no.12, who was one of the power of attorney holder of Prajapati Brothers. It was further alleged that all the accused with collusion with each other prepared false power of attorney of respondent no.2original complainant and created power of attorney in favour of accused nos. 12 and 13. It is further alleged that the accused nos. 1, 2 and 3 had executed a sale deed in favour of petitioner no.1 herein original accused no.4 and subsequently the names of the petitioner nos. 2 to 6 original accused nos. 5 to 9 were entered. It is further alleged that the petitioner no.1 had executed agreement to sell in favour of accused no.10 and the sale deed was executed in favour of petitioner no.7original accused no.11, wherein the accused no.10 is confirming party. It is further alleged that petitioner no. 7 hereinoriginal accused no.11 published a public notice dated 8.3.2008 in the Sandesh News Paper, therefore, the respondent no.2 original complainant came to know about this fraud and raised objection through his advocate. Therefore, it is alleged that accused persons have got created a bogus power of attorney with forged signature of the complainant and thereafter have tried to take away ownership right of the complainant and have created different documents. Therefore, it was alleged that the accused persons have committed the offence under Sections 406, 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code. That the learned Magistrate passed an order for inquiry under Section 202 of the Code of Criminal Procedure and inquiry be conducted by the concerned Investigating Officer. Thereafter, concerned Investigating Officer held the inquiry and submitted the report to the learned Magistrate and considering the same learned Magistrate, Gandhinagar has directed to register the complaint which is numbered as Criminal Case No. 12968 of 2008 and has further directed to issue process against the petitioners hereinoriginal accused for the offences under Sections 406, 420, 467, 468 and 120B of the Indian Penal Code.
4.1. Being aggrieved and dissatisfied with the very complaint as well as order passed by the learned Magistrate issuing process against the applicants herein original accused Nos. 4 to 11, petitioners have preferred Criminal Miscellaneous Applications under Section 482 of the Code of Criminal Procedure.
5.0. Shri S.V. Raju, learned Senior Advocate has appeared for Shri Umot, learned advocate for the Criminal Miscellaneous Application No.2563 of 2009. It is submitted by Shri S.V. Raju, learned Senior Advocate for the applicants that impugned complaint being Criminal Case No. 12968 of 2008 is nothing but an abuse of process of law and Court. It is submitted that impugned complaint has been filed with mala fide intention. It is submitted that as such the applicants have not committed any offence as alleged for which the learned Magistrate has directed to issue process against them.
5.1. It is further submitted by S.V. Raju, learned Senior Advocate for the petitioners that earlier the Criminal Case No. 12968 of 2008 was registered as Inquiry Case No. 63 of 2008, wherein the Police inquiry under Section 202 of the Code of Criminal Procedure, 1973 was ordered by the learned JMFC, Gandhinagar and directed the Investigating Officer, Adalaj Police Station to submit a report within 30 days. Thereafter, Police Sub Inspector, Adalaj Police Station, Adalaj forwarded a report to the learned JMFC, Gandhinagar on 4.9.2008 to the effect that there is no evidence found so far as petitioners are concerned. It is submitted that after to the aforesaid police report, by order dated 15.11.2008 the learned JMFC, Gandhinagar issued the summons against the accused persons for the offences under Sections 406, 420, 467, 468 and 120B of the Indian Penal Code. It is submitted that as per the report dated 4.9.2008 submitted by the Police Inspector, Adalaj Police Station, Adalaj, no evidence has been found against the petitioners. It is submitted that in the said report, it is stated that the cheque no. 592653 dated 21.6.2004 was given to Veljibhai Haribhai Chaudhary which has been deposited in his account and the said amount has been withdrawn by him. It is further submitted in the said report that Veljibhai Haribhai Chaudhary and other three Chaudharys have executed a declaration deed dated 14.9.2007, in which, they have admitted that the sale deed dated 23.2.2004 is binding to them and they have received the amount by cheques.
5.2. It is further submitted that even Veljibhai Jivabhai Chaudhary filed Special Civil Suit No.142 of 2008 in the Court of learned Civil Judge (S.D.), Gandhinagar in respect of the disputed land, wherein the petitioner no.1 and other accused persons were joined as defendants. It is submitted that in the aforesaid Civil Suit the power of attorney holder of Veljibhai Jivabhai Chaudhary had given a purshish vide Exh.54 to withdraw the suit unconditionally and accordingly by order dated 18.12.2008 the suit came to be disposed off, wherein it is also agreed that the respondent no.2 has to withdraw Criminal Case No.12968 of 2008 unconditionally.
5.3. It is further submitted that thereafter on 8.3.2004 another public notice for the title clearance was got published in the “Sandesh” Newspaper by M/s. H. Desai and Company inviting the objection in respect of the disputed land. It is submitted that on 24.3.2008 one objection on behalf of one of the original land owners namely Shri Veljibhai Jivabhai Chaudhary i.e. original complainant was received by M/s. H. Desai and Company. That thereafter on 2.4.2008 M/s. H. Desai & Co gave a reply to the objections raised by Shri Veljibhai Jivabhai Chaudhary by RPAD through his power of attorney holderoriginal accused no.9 and subsequently, M/s. Desai & Co has given Title Clearance Certificate dated 20.5.2008 in respect of the disputed land. It is submitted that one Amitbhai Haribhai Chaudhary who is the power of attorney holder of respondent no.2 one of the land owners who raised the objections in response to the public notice dated 8.3.2008 is with mala fide intention. It is submitted that no objections were raised earlier at any point of time when the earlier public notices were published. It is submitted that complainant had kept silent for the reasons best known to him. It is submitted that due to the hike in land price the objection is raised by the respondent no.2 through his power of attorney with ulterior motive and malafide intention. It is submitted that out of the four original land owners, three of them have sworn the affidavits on 3.4.2008 stating the fact that they have received the full consideration against the sale deed executed in favour of the petitioner no.1.
5.4. Learned counsel for the petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of State of Gujarat vs. Jaswantlal Nathalal reported in 1968 SC 700; CBI vs. Duncans Agro Industries Ltd reported in (1996) 5 SCC 591; Devendra and Others vs. State of Uttar Pradesh and Another reported in (2009) 7 SCC 495 as well as Mohammed Ibrahim and Others vs. State of Bihar and Another reported in (2009) 8 SCC 751. It is submitted that petitioners have not committed any offences as alleged for the offences under Sections 406, 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code for which the learned Magistrate has directed to issue process. By making above submissions and relying upon the above decisions, it is requested to allow the present Criminal Miscellaneous Application.
6. Shri Gondaliya, learned advocate for the petitioner of Criminal Miscellaneous Application No.16222 of 2008 has adopted the submissions made by Shri S.V. Raju, learned Senior Advocate for the petitioner of Criminal Miscellaneous Application No. 2563 of 2009 and has requested to allow present Criminal Miscellaneous Appilcation.
7. Though served, nobody appears on behalf of the respondent no.2 hereinoriginal complainant. Shri Dabhi, learned APP has stated that Considering the report submitted by the Police Sub Inspector of Adalaj Police Station, it is required to pass appropriate order.
8.0 Heard. Learned advocates for the petitioners as well as Shri Dabhi, learned Additional Public Prosecutor for the respondent State and considered the impugned complaint/ criminal case as well as impugned order passed by the learned Magistrate directing to issue process against the applicants as well as report submitted by the Investigating Officer. This Court has also considered the allegations and averments made against the applicants herein original accused nos. 4 to 11.
9.0 At the outset, it is required to be noted that main grievance made by the original complainant was with respect to the sale deed dated 23.2.2004 executed by his power of attorney i.e. original accused nos. 12 and 13 and the sale deed executed in favour of the petitioners herein original accused no.4. However, it has come on record that cheque no. 592653 dated 21.6.2004 was given to the original complainant Veljibhai Jivabhai Chaudhary which came to be deposited in his account and thereafter said amount has been withdrawn by him. It also appears that thereafter the petitioner no.1 hereinoriginal accused no.4 had executed the agreement to sell in favour of original accused no. 10 and the sale deed was executed in favour of petitioner no.7 hereinoriginal accused no.11, wherein original accused no.10 is confirming party. It has also come on record that at that time public notice was given, however complainant for the reasons best known to him did not raise any objection. It has also come on record that thereafter original complainant instituted Regular Civil Suit No.142 of 2008 in the Court of learned Civil Judge (S.D.), Gandhinagar, in which, the petitioners and other accused were joined as defendants and in view of the settlement, original complainant withdrew the aforesaid suit. That in the meantime one M/s. H. Desai and Company and Solicitor Firm gave a public notice in “Sandesh” newspaper on 8.3.2008 and at that stage for the first time the power of attorney holder of the Veljibhai Jivabhai Chaudhary raised the objections and it appears that in view of rise in the price of the land such objection was raised and thereafter present complaint has been filed. Therefore, it appears that the impugned complaint / criminal case is nothing but an abusive of process of Court and therefore, it is fit case to exercise the powers under Section 482 of the Code of Criminal Procedure.
10. Even considering the facts and circumstances, it cannot be said that any offence has been committed by the applicants herein for the offences under Sections 406, 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code, for which learned Magistrate has issued the process against them. There is no misrepresentation to the original complainant by the accused persons petitioners herein. The power of attorney of the original complainant and other coowners had executed the sale deed in favour of the petitioner no. 1 original accused no.4 which has been accepted by the complainant in the civil proceedings. Even thereafter, subsequent sale deed has been executed by the concerned persons and therefore, no case is made out against the applicants for the offences under Sections 467 and 468 of the Indian Penal Code as alleged for which the learned Magistrate has directed to issue the process. Under the circumstances and considering the aforesaid decisions of Hon'ble Supreme Court, it cannot be said that applicants have committed any offence for the offences under CR.MA/2563/2009 10/10 JUDGMENT Sections 406, 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code. Under the circumstances, it appears to the Court that to continue the criminal proceedings against the applicants would be unnecessary harassment to them and would be abuse of process of law and Court and therefore, this is a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned complaint/ criminal case as well as order passed by the learned JMFC issuing process in the same.
11. In view of the above and for the reasons stated above, both the applications succeed. The Criminal Case No. 12968 of 2008 pending in the Court of learned JMFC, Gandhinagar as well as impugned order dated 15.11.2008 passed in Criminal Case No.12968 of 2008 issuing process against the petitioners by the learned JMFC, Gandhinagar for the offences under Sections 406, 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code are hereby quashed and set aside qua applicants herein original accused nos. 4 to 9, 10 and 11. Rule is made absolute to the aforesaid extent in each of the applications.
“kaushik”
sd/ ( M. R. Shah, J. )