[1.0] As common question of law and facts arise in both these applications and both these applications arise out of common FIR and as prayer is to quash and set aside the common FIR, both these applications are heard, decided and disposed of by this common judgment and order. [2.0] Criminal Miscellaneous Application No.1520/2009 has been preferred by the applicants herein – original accused Nos.4 and 5 under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) to quash and set aside the impugned FIR being C.R. No.I43/2009 registered with Umra Police Station, Surat lodged by respondent No.2 herein – original complainant for the offences punishable under Sections 406, 420, 465, 467, 471 and 120B of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).
[2.1] Criminal Miscellaneous Application No.10374/2009 has been preferred by the applicants herein – original accused No.3 under Section 482 of the CrPC to quash and set aside the impugned FIR being C.R. No.I43/2009 registered with Umra Police Station, Surat lodged by respondent No.2 herein – original complainant for the offences punishable under Sections 406, 420, 465, 467, 471 and 120B of the IPC.
[3.0] That the impugned FIR has been lodged by respondent No.2 herein – original complainant against the respective applicants herein and other accused persons for the offences punishable under Sections 406, 420, 465, 467, 471 and 120B of the IPC alleging interalia that though the original accused No.1 Bhaniben widow of Babarbhai Durlabhbhai sold the disputed land in question to him by registered sale deed on 18.10.1999 for a sale consideration of Rs.3 lacs and though the necessary entry was made in the revenue record subsequently, the original accused No.1 instituted one Special Civil Suit against the complainant being Special Civil Suit No.3/2005 before the learned Civil Judge, Senior Division, Surat for a declaration that the sale deed executed by her in favour of the complainant is without consideration and therefore, the same is void ab initio and also prayed for declaration that she is the sole owner of the property. It is further alleged in the said FIR that a written statement was filed by the complainant through his alleged power of attorney on 31.01.2005 admitting the contents of the plaint of Special Civil Suit No.3/2005. That thereafter the settlement pursis came to be filed by the parties signed by the alleged power of attorney of the complainant on behalf of the complainant whereby the parties agreed for cancellation of the sale deed executed by and between the original accused No.1 and the complainant on 07.02.2006. It is alleged that the complainant had never executed any power of attorney in favour of the original accused no.2 and therefore, by creating the forged power of attorney in favour of accused No.2, the original accused No.1 got the consent decree in her favour and thereafter immediately sold the land in question in favour of accused Nos.4 and 5 (applicants of Criminal Miscellaneous Application No.1520/2009). It is further alleged that even the said power of attorney initially in the year 2001 executed the sale deed in favour of original accused No.3 (applicant of Criminal Miscellaneous Application No.10374/2009) and thereafter the aforesaid suit was filed by original accused No.1 in which on the basis of the forged and concocted power of attorney in favour of accused No.2, a consent decree came to be obtained and thereafter immediately the land came to be sold in favour of accused Nos.4 and 5. Therefore, it is alleged in the FIR that all the accused persons have committed offences punishable under Sections 406, 420, 465, 467, 471 and 120B of the IPC.
[3.1] Being aggrieved and dissatisfied with the impugned FIR, original accused Nos.3, 4 and 5 have preferred the present Criminal Miscellaneous Applications (Criminal Miscellaneous Application No.10374/2009 by original accused No.3 and Criminal Miscellaneous Application No.1520/2009 by original accused Nos.4 and 5).
[4.0] Before considering the submissions made on behalf of the rival parties, few facts and chronological events to appreciate the facts are required to be considered which are as under:
[4.1] That the disputed land in question was purchased by one Durlabhbhai Panchiabhai in the year 1934 from one Barjorji Hormasji Mir. The said Durlabhbhai initially married one Laduben and out of said wedlock one Kanjibhai was born. That the said Laduben died and at that time Kanjibhai was five years old. That Durlabhbhai again married with Viraben and out of the said wedlock one Babarbhai was born. It appears that said Durlabhbhai executed a Will dated 30.11.1970 in favour of his son Babarbhai bequeathing all his properties in name of Babarbhai. It appears that Durlabhbhai died/expired on 14.12.1970. Even thereafter in the year 1979, Babarbhai Durlabhbhai expired and one Bhaniben widow of Babarbhai (original accused No.1) become sole owner of the property. It appears that in the year 1989, Kanjibhai Durlabhbhai (son of Durlabhbhai) born out of first marriage filed Regular Civil Suit No.1186/1989 against Bhaniben, widow of Babarbhai in the Court of learned Civil Judge, Senior Division, Surat praying that he has share in the property of Durlabhbhai. That the injunction was granted by the Civil Court on 30.01.1989.
[4.2] That thereafter Bhaniben widow of Babarbhai executed a registered sale deed in favour of the complainant Pankaj Sitaram Patel in respect of the subject land for a sale consideration of Rs.3 lacs by registered sale deed dated 18.10.1999. That a necessary mutation entry was made in the revenue record vide entry No.26254/99 by which the name of the complainant was mutated in the revenue record. That on 27.11.2000, the complainant left for Florida (America). That thereafter on the basis of the alleged power of attorney dated 18.10.1999, alleged to have been executed by the original complainant in favour of one Gulabbhai @ Dhirubhai Patel (original accused No.2), the original accused No.2 as power of attorney holder of the complainant executed a sale deed dated 05.03.2001 in favour of one Nandlal Kalabhai Pandav – original accused No.3 (applicant of Criminal Miscellaneous Application No.10374/2009) (It is alleged in the FIR that the said sale deed was got executed in favour of original accused No.3 on the basis of the forged power of attorney dated 18.10.1999). It appears that thereafter after a period of four years of executing the sale deed in favour of original accused No.3 on the basis of the alleged forged power of attorney dated 18.10.1999, the original accused No.1 Bhaniben widow of Babarbhai filed a Special Civil Suit No.3/2005 before the learned Civil Judge, Senior Division, Surat praying for a declaration that sale deed executed by her in favour of the complainant is without consideration and therefore the same is void ab initio and also prayed for declaration that she is the sole owner of the property. It is to be noted that at the relevant time when the said suit was filed, admittedly the complainant was at America. It was contended on behalf of the said Bhaniben in the said suit that the sale deed executed in favour of the complainant was without consideration and she has been cheated and her thumb impression was obtained on the said sale deed taking the disadvantage of her illiteracy. It appears that the summons of the said suit was served upon the alleged power of attorney holder of the complainant – original accused No.2 who appeared in the aforesaid suit and filed the written statement on 31.01.2005 admitting the contents of the plaint of Special Civil Suit No.3/2005. That the settlement pursis came to be filed by the parties on 07.02.2006 whereby the parties agreed for cancellation of the said sale deed executed by and between Bhaniben and the complainant. (It is to be noted that the said pursis was filed by original accused No.2 as power of attorney holder of the complainant). It appears that on the basis of the aforesaid settlement pursis, the learned trial Judge passed the consent decree in the aforesaid Special Civil Suit No.3/2005 and cancelled the registered sale deed which was in favour of the complainant, by judgment and decree dated 12.05.2006. Thus, on the basis of the aforesaid consent decree which was obtained by using the forged power of attorney of the complainant, Bhaniben became the sole owner of the property in dispute. That thereafter Bhaniben – original accused No.1 sold half of the property in question admeasuring 23522.25 sq.meters to one Amitbhai B. Naik – original accused No.5 by registered sale deed dated 14.12.2006 for a sale consideration of Rs.11,81,151/. On the very day, said Bhaniben – original accused No.1 sold remaining half of the property in question to original accused No.4 (applicant No.1 of Criminal Miscellaneous Application No.1520/2009) by registered sale deed dated 14.12.2006 for the sale consideration of Rs.11,81,151/. It appears that thereafter immediately within a period of two months, original accused No.5 (applicant No.2 of Criminal Miscellaneous Application No.1520/2009) sold the land admeasuring 11761.13 sq.meters to one Harshilbhai Desai by registered sale deed dated 27.02.2007 for a sale consideration of Rs.10 lacs. It appears that within a period of six months, the said Harshilbhai Desai sold the land admeasuring 11,761.13 sq.meters to original accused No.4 (applicant No.1 of Criminal Miscellaneous Application No.1520/2009) by registered sale deed dated 28.09.2007. That on the very day, Amit Naik – original accused No.5 (applicant No.2 of Criminal Miscellaneous Application No.1520/2009) sold the remaining land to original accused No.4 (applicant No.1 of Criminal Miscellaneous Application No.1520/2009) by registered sale deed dated 28.09.2007. Thus, it is the case on behalf of the applicant No.1 of Criminal Miscellaneous Application No.1520/2009 – original accused No.4 that he become the sole owner of the land. It appears that a mutation entry being entry No.3213 was mutated in the revenue record on 28.12.2007 reflecting the name of original accused No.5 (applicant No.2 of Criminal Miscellaneous Application No.1520/2009) as purchaser of the part of the land. Similarly, one another entry was made being mutation entry No.3214 on dated 29.12.2007 mutating the name of original accused No.4 – applicant No.1 of Criminal Miscellaneous Application No.1520/2009 as purchaser of the part of the land. It appears that one another mutation entry No.3242 was also made in the revenue record on 05.06.2008 showing that original accused No.1 has executed sale deed in favour of the complainant on 18.10.1999.
[4.3] It appears that thereafter the original complainant returned to India on 28.06.2008 and it is his case that he came to know about some notice, which was lying in his house, with respect to the notice issued by the SubRegistrar with respect to the sale deed executed by Bhaniben in favour of accused Nos.4 and 5, he came to know about the aforesaid fraud and the forgery and concoction of his forged power of attorney alleged to have been executed by him in favour of original accused No.2. That thereafter the impugned FIR has been lodged by the complainant against the accused persons for the offences alleged. That thereafter one Civil Suit No.215/2011 is also filed by the original complainant challenging the sale deed executed in favour of the applicant and for declaration that the consent decree passed by the Court in Special Civil Suit No.3/2005 is null and void.
[4.4] That being aggrieved and dissatisfied with the impugned FIR, the applicants herein – original accused Nos.3, 4 and 5 have preferred the present Criminal Miscellaneous Applications under Section 482 of the CrPC.
[5.0] Shri P.M. Thakkar, learned Senior Advocate has appeared with Shri S.P. Majmudar, learned advocate appearing on behalf of the applicants – original accused Nos.4 and 5 of Criminal Miscellaneous Application No.1520/2009. Shri B.M. Mangukiya, learned advocate has appeared on behalf of the applicant of Criminal Miscellaneous Application No.10374/2009 original accused No.3. Shri Tattavam Patel, learned advocate has appeared on behalf of the original complainant and Shri L.B. Dabhi, learned Additional Public Prosecutor has appeared on behalf of the State and Investigating Officer.
[5.1] Shri P.M. Thakkar, learned Senior Advocate appearing for original accused Nos.4 and 5 has vehemently submitted that the said accused have not committed any offence as alleged under Sections 406, 420, 465, 467, 471 and 120B of the IPC. It is submitted that as such the original accused Nos.4 and 5 are the bonafide purchasers of the disputed land in question by registered sale deeds and therefore, it cannot be said that they have committed any offence as alleged.
[5.2] It is further submitted by Shri Thakkar, learned counsel that as such the power of attorney which is alleged to have been forged one is executed in the year 1999/2001 and the same was alleged to have been executed in favour of original accused No.2 and which was used for the first time in the year 2001 and the original accused Nos.4 and 5 came into picture only in the year 2006 and therefore, it cannot be said that they have committed any offence of forgery of power of attorney.
[5.3] It is further submitted by Shri Thakkar, learned counsel that even the FIR deserves to be quashed and set aside on the ground of delay. It is submitted that the complainant came into knowledge of transaction in question on 31.07.2008 on the occasion of mutating his name in revenue record and despite the same, the impugned FIR has been lodged on 31.01.2009. It is submitted that no explanation has been given with respect to the delay occurred in lodging the FIR.
[5.4] Relying upon the decision of the Hon'ble Supreme Court in the case of Mohammed Ibrahim and Others v. State of Bihar and Others reported in (2009) 8 SCC 751 as well as the decision of the learned Single Judge in the case of Himmatlal Mohanlal Shah & Anr. v. State of Gujarat & Anr. reported in 2010 (3) GLR 1905 as well as in the case of Prakash Ramchandra Barot and Ors. v. State of Gujarat and Anr. reported in 2011 (3) GLH 211, it is requested to quash and set aside the impugned FIR.
[6.0] Shri B.M. Mangukiya, learned advocate appearing on behalf of the original accused No.3 has vehemently submitted that so far as original accused No.3 is concerned, he is also a bonafide purchaser of the disputed land in question who has purchased the disputed land in question in the year 2001 which was executed by the power of attorney of the complainant, which power of attorney was executed by the complainant in favour of original accused No.2 – Gulabbhai @ Dhirubhai Patel in the year 1999 when the complainant was in India. It is submitted that the impugned FIR deserves to be quashed and set aside on the ground of delay also. Therefore, it is submitted that when the impugned FIR is nothing but abuse of process of law and the Court, it is requested to quash and set aside the impugned FIR in exercise of powers under Section 482 of the CrPC.
[7.0] Both these applications are opposed by Shri Tattavam Patel, learned advocate appearing on behalf of the original complainant as well as Shri L.B. Dabhi, learned Additional Public Prosecutor appearing on behalf of the State and Investigating Officer.
[7.1] Shri Tattavam Patel, learned advocate has vehemently submitted that there are specific averments and allegations in the FIR which discloses prima facie commission of cognizable offences which are required to be investigated by the IO. It is submitted that the allegations against the accused persons are for the offence punishable under Section 120B of the IPC also. It is submitted that the manner in which the forged power of attorney has been used right from initially executing the sale deed in favour of accused No.3 and thereafter, though the said sale deed in favour of accused No.3 was existing, filing of the suit by Bhaniben – original accused No.1 against the complainant for a declaration that the sale deed executed in favour of the complainant was without consideration and written statement filed by the power of attorney admitting the suit; submitting the consent pursis, getting the declaration and thereafter various transactions between original accused No.1 and the other accused persons more particularly accused Nos.4 and 5, are all questions which are required to be investigated. Therefore, relying upon the decision of the Hon'ble Supreme Court in the case of M. N. Ojha and others vs. Alok Kumar Srivastav and another reported in (2009)9 SCC 682, it is requested to dismiss the present applications and not to exercise powers under Section 482 of the CrPC and not to quash and set aside the impugned FIR at the threshold and without any investigation. It is submitted that as such the complainant has already obtained the opinion of private handwriting expert and it is found that signature of the complainant on the forged power of attorney is not that of the complainant. Therefore, it is requested to dismiss the present applications.
[7.2] Shri Dabhi, learned APP appearing on behalf of the State and IO has also opposed the present applications by submitting that the FIR discloses prima facie commission of cognizable offences which are required to be investigated by the IO. It is further submitted that the impugned FIR has been lodged on 30.01.2009 and immediately before any further investigation could be conducted, there is a stay of further investigation and therefore, it is requested not to quash and set aside the impugned FIR at the threshold and without further investigation.
[8.0] Heard the learned advocates appearing for respective parties at length. At the outset it is required to be noted that the impugned FIR has been lodged by respondent No.2 herein – original complainant for the offences punishable under Sections 406, 420, 465, 467, 471 and 120B of the IPC alleging interalia that the power of attorney dated 18.10.1999 alleged to have been executed by the complainant in favour of the original accused No.2 is forged and concocted one and no such power of attorney has been given by him. It is further alleged that the said forged power of attorney has been used first in favour of original accused No.3 by getting the sale deed executed in his favour on 05.03.2001 and thereafter again the said forged power of attorney is used for getting the consent decree in the year 200506. Therefore, as such there are specific allegations and averments in the FIR prima facie making out commission of cognizable offences which are further required to be investigated by the IO.
[8.1] It is the case on behalf of the respective applicants – original accused Nos.3, 4 and 5 that as such they are bonafide purchasers of the disputed land in question and therefore, it cannot be said that they have committed any offence as alleged. Whether the applicants are bonafide purchasers of the disputed land in question are not, is a question which is required to be investigated by the IO. It is to be noted that so far as original accused No.3 (applicant of Criminal Miscellaneous Application No.10374/2009) is concerned, though there was a sale deed in his favour executed by the power of attorney of the original complainant on 05.03.2001 (on the basis of forged power of attorney dated 18.10.1999), his name was never mutated in the revenue record on the basis of the said power of attorney. It is also required to be noted that even when subsequently Bhaniben – original accused No.1 filed Special Civil Suit No.3/2005 and obtained consent decree in her favour, though the sale deed dated 05.03.2001 was in existence, he has never made any grievance even after he came to know about the sale deeds in favour of the accused Nos.4 and 5. The aforesaid conduct of original accused No.3 is required to be considered in light of the allegations in the FIR for the offences punishable under Sections 406, 420, 465, 467, 471 and 120B of the IPC also.
[8.2] Now, so far as the case on behalf of the applicants of Criminal Miscellaneous Application Nos.1520/2009 – original accused Nos.4 and 5 that they are the bonafide purchasers of the disputed land in question is concerned, whether they are bonafide purchasers of the disputed land in question or not, is also required to be investigated by the concerned IO. It is required to be noted that Bhaniben – original accused No.1 obtained the consent decree in Special Civil Suit No.3/2005 on the basis of the written statement filed by the power of attorney using the alleged forged power of attorney and she became owner on the basis of the said consent decree and immediately thereafter it is alleged that the said Bhaniben sold half of the property in question in favour of original accused No.5 by registered sale deed dated 14.12.2006 for a sale consideration of Rs.11,81,151/ and on the very day, she executed the registered sale deed in favour of original accused No.4 with respect to remaining half of the property in question for a sale consideration of Rs.11,81,151/. It appears that thereafter within a period of two months only, the original accused No.5 is alleged to have sold the land admeasuring 11,761.13 sq.meters to one Harishbhai Desai by registered sale deed 27.02.2007 for a sale consideration of Rs.10 lacs. It is to be noted that when the original accused No.5 purchased the land for a sale consideration of Rs.11,81,151/, how he could have sold the land in favour of Harishbhai Desai for a sale consideration of Rs.10 lacs. It is also required to be noted that within a period of seven months only, the said Harishbhai Desai is alleged to have sold the land admeasuring 11,761.13 sq.meters to the original accused No.4 by registered sale deed dated 28.09.2007 for the alleged sale consideration of Rs.11 lacs and again on the very day, it is alleged that the original accused No.5 sold the remaining land to accused No.4 by registered sale deed dated 28.09.2007. The aforesaid transactions create doubt and which are the subject matter of investigation whether they can be said to be bonafide purchasers of the disputed land in question or not? It is required to be noted that the payment of sale consideration mentioned in the sale deeds are by cash only and thereafter whether as such the payment of said sale consideration is also required to be investigated by the concerned IO. It is also required to be noted that though according to the original accused Nos.4 and 5 more particularly original accused No.4 that he became the sole owner of the entire land on 28.09.2007, still with respect to half portion of the land the mutation entry was made in favour of original accused No.5 on the basis as a purchaser of the part of the land though admittedly on that day even according to them, accused No.5 was not the owner of half portion of the land. All these aforesaid facts are required to be thoroughly investigated by the IO. The main allegation with respect to forging of the power of attorney alleged to have been executed on 18.10.1999 is required to be investigated by the IO. It might be that though the said forged power of attorney is alleged to have been executed on 18.10.1999, it might not have been executed on that day but it might have been forged subsequently as admittedly the original complainant left India on 27.11.2000 and he was in America till 28.06.2008. It appears that taking the disadvantage of the same, the entire conspiracy might have been hatched with a view to grab his land. All the aforesaid questions are required to be investigated by the IO and at this stage it is not possible to know the role played by each accused persons. It is to be noted that when the allegations are for offences punishable under Sections 406, 420, 465, 467, 471 and 120B of the IPC, without any further investigation, the allegations of conspiracy are not required to be considered without further investigation.
[8.3] Now, so far as the contention on behalf of the applicants that the submission on behalf of the applicants that there is a delay in lodging the FIR and therefore, the same deserves to be quashed and set aside is concerned, it is required to be noted that the complainant returned to India on 28.06.2008 and as soon as he came to know about the forgery and transactions, he has immediately made the complaint to the Commissioner of Police, Surat on 26.09.2008 (which is forming part of the investigation papers). Therefore, it cannot be said that there is any delay in lodging the FIR.
[8.4] Now, so far as the reliance placed on the decision of the Hon'ble Supreme Court in the case of Mohammed Ibrahim and Others (Supra) as well as the decision of the learned Single Judge in the case of Himmatlal Mohanlal Shah & Anr. (Supra) as well as in the case of Prakash Ramchandra Barot (Supra) are concerned, on facts, the said decisions shall not be of any assistance to the applicants, more particularly, when there are specific averments and allegations in the FIR with respect to forging the signature on the power of attorney. In the case before the Hon'ble Supreme Court as well as this Court, there were signatures on the documents who signed the documents and there were no allegations with respect to the forging the signature on the document.
[8.5] As stated herein above, immediately on filing the impugned FIR, the applicants have approached this Court and before any further investigation can be carried out, the applicants have approached this Court by way of present applications and since then there is a stay of further investigation. Therefore, as such on further investigation has been carried out by the IO.
[8.6] As observed by the Hon'ble Supreme Court in the case of M. N. Ojha and others vs. Alok Kumar Srivastav and another reported in (2009)9 SCC 682, the High Court in exercise of its jurisdiction under Section 482 cannot go into the truth or otherwise of the allegations and appreciate the evidence if any available on record and normally, the High Court would not intervene in the criminal proceedings at the preliminary stage, when the investigation / inquiry is pending. It is further submitted by the Hon'ble Supreme Court in the said decision that frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which would not be in the public interest. It is held that only in exceptional case the High Court would not have interfere at the preliminary stage when the investigation is pending.
[9.0] In view of the above and for the reasons stated above, both the Criminal Miscellaneous Applications fail which deserve to be dismissed and are, accordingly, dismissed. Rule is discharged in both the applications. Adinterim relief granted earlier stands vacated forthwith.
[9.1] At this stage learned advocates appearing for respective applicants have requested to continue the adinterim relief granted earlier so as to enable them to approach the Hon'ble Supreme Court. In the facts and circumstances of the case, more particularly, when the interim relief is in operation since 2009, the adinterim relief granted earlier is directed to be continued upto 7th May 2012.
(M.R. Shah, J.) menon